I incorrectly predicted that there's no violation of human rights in KAYA v. TURKEY.

Judgment

SECOND SECTION
CASE OF KAYA v. TURKEY
(Application no. 73552/11)

JUDGMENT

STRASBOURG
13 July 2021

This judgment is final but it may be subject to editorial revision. In the case of Kaya v. Turkey,
The European Court of Human Rights (Second Section), sitting as a Committee composed of:
Carlo Ranzoni, President,Valeriu Griţco,Marko Bošnjak, judges,and Hasan Bakırcı, Deputy Section Registrar,
Having regard to:
the application (no. 73552/11) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Bayram Kaya (“the applicant”), on 11 November 2011;
the decision to give notice to the Turkish Government (“the Government”);
the parties’ observations;
Having deliberated in private on 22 June 2021,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The application concerns the alleged unfairness of criminal proceedings against the applicant on account of the systemic denial of his right to a lawyer during his time in police custody on the basis of Law no. 3842, and the domestic courts’ reliance on statements which he gave in the absence of a lawyer to convict him. It further pertains to the domestic courts’ reliance on statements which his co-defendants allegedly gave under duress and in the absence of a lawyer to convict him. THE FACTS
2. The applicant was born in 1963 and lives in Bern. He was represented before the Court by Ms S. Epçeli Arslan, a lawyer practising in Istanbul. 3. The Government were represented by their Agent. 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. On 7 April 1993 the applicant was arrested and taken into custody on suspicion of firing shots at a police team in Isparta. 6. As the applicant was accused of having committed certain offences falling within the jurisdiction of the state security courts, he did not have access to a lawyer during his time in police custody. 7. On the same date, the applicant made self-incriminatory statements to the police, in the absence of a lawyer, about his involvement in the killings of the chief public prosecutor of the Istanbul State Security Court, Y.G., his driver and protection officer. 8. On 10 April 1993 the applicant was questioned by a public prosecutor and an investigating judge in the absence of a lawyer. In his statements before the public prosecutor and the investigating judge, the applicant partly confirmed and partly denied the content of the statements he had made to the police. He admitted having fired shots at the security forces in Isparta. At the end of the hearing, he was remanded in custody. 9. On 23 and 24 February 1992 the police interviewed certain co-suspects, Y.O. and M.D. (who was the applicant in Dikme v. Turkey, no. 20869/92, ECHR 2000‐VIII) in the absence of a lawyer. They both made incriminatory statements in respect of the applicant. 10. On 9 August 1993 the public prosecutor at the Istanbul State Security Court filed an indictment with the said court, charging the applicant with the offence of attempting to undermine the constitutional order, under Article 146 of the then Criminal Code. 11. At the hearings held on 27 September 1994 and 10 November 1994, the applicant refused to give information regarding his identity, stating that he would not submit his defence submissions. 12. Between 7 October 1993 and 8 September 2009 numerous hearings were held before the trial court, during which some witnesses were examined, certain forensic examinations were ordered, and the parties’ submissions were heard. During the same period, the trial court delivered two judgments convicting the applicant, which were quashed by the Court of Cassation for different reasons. 13. On 8 September 2009 the Istanbul Assize Court found the applicant guilty as charged and sentenced him to aggravated life imprisonment for his involvement in the robbery at an exchange office on 14 June 1991; the killings of A.B., on 19 August 1991, and of the chief public prosecutor of the Istanbul State Security Court Y.G., his driver and protection officer on 6 February 1992, as well as the armed attacks in Isparta on 4 and 6 March 1993. In convicting the applicant, the Istanbul Assize Court relied on, inter alia, the statements given by the applicant and a co-accused, namely Y.O., the statements given by the witnesses and the victims as well as the expert reports and the identification reports. 14. On 15 September 2009 the applicant lodged an appeal against the first-instance court’s decision. 15. On 15 June 2011 the Court of Cassation upheld the first-instance court’s decision. RELEVANT LEGAL FRAMEWORK
16. A description of the relevant domestic law concerning the right of access to a lawyer may be found in Salduz v. Turkey ([GC] no. 36391/02, §§ 27-31, ECHR 2008). THE LAW
17. The applicant complained of the systemic restriction imposed on his right to a lawyer during the preliminary investigation stage and the subsequent use by the trial court of the statements he had made in the absence of a lawyer to convict him. He further alleged that he had been convicted on the basis of the statements his co-defendants had made in the absence of a lawyer and under duress during the preliminary investigation stage. 18. The Court will examine this complaint under Article 6 §§ 1 and 3 (c) of the Convention, which reads as follows:
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by [a] tribunal ...
3. Everyone charged with a criminal offence has the following minimum rights:
...
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require. ...”
19. The Government argued that the applicant had failed to exhaust domestic remedies in respect of his complaints under Article 6 of the Convention in that he had failed to raise them before the Court of Cassation. 20. The applicant did not submit any additional information in reply to the Government’s observations concerning the admissibility of the application. 21. As regards the applicant’s complaint concerning the use of the statements given by his co-defendants under duress and in the absence of a lawyer, the Court notes that the applicant failed to raise that complaint before the Court of Cassation. It follows that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies. 22. As regards the remainder of the application, the Court notes that it has already examined a similar objection in Halil Kaya v. Turkey, (no. 22922/03, §§ 13-14, 22 September 2009) and dismissed it. It finds no particular circumstances in the instant case which would require it to depart from its findings in those applications. Consequently, it dismisses the Government’s preliminary objection. 23. The Court notes that this part of the application is not manifestly ill‐founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. 24. The applicant complained that he had been deprived of legal assistance during the preliminary investigation stage and that his statements obtained in the absence of a lawyer had been used by the trial court to convict him. 25. The Government submitted that in convicting the applicant, the domestic courts had not only relied on the applicant’s statements given in the absence of a lawyer, but also on other evidence. Therefore, the applicant’s statements were not the sole or decisive evidence upon which his conviction had been based. Accordingly, the Government considered that the absence of a lawyer during the applicant’s police custody had not irretrievably prejudiced the overall fairness of the proceedings. 26. As regards the applicant’s complaint regarding the systemic restriction imposed on his right to a lawyer and the subsequent use by the trial court of the evidence he had given while in police custody in the absence of a lawyer, the Court observes that in Beuze v. Belgium ([GC], no. 71409/10, 9 November 2018), it affirmed that the test clarified in Ibrahim and Others v. the United Kingdom ([GC], nos. 50541/08 and 3 others, 13 September 2016) should also be applied in cases where the restriction on the applicant’s right to a lawyer stemmed from the statutory provisions and was hence systemic. Thus, the Court must examine the following factors when faced with such complaints: (i) whether there was a restriction on the right to a lawyer; (ii) whether there were compelling reasons for the restriction; and (iii) whether the proceedings as a whole were fair. 27. The Court has already examined the same legal question and found violations of Article 6 §§ 1 and 3 (c) of the Convention in a number of cases against Turkey, both before and after the above-mentioned judgment in Ibrahim and Others (for the Court’s approach prior to Ibrahim and Others, see Salduz, cited above; İrmak v. Turkey, no. 20564/10, 12 January 2016; İbrahim Öztürk v. Turkey, no. 16500/04, 17 February 2009; Ditaban v. Turkey, no. 69006/01, 14 April 2009; Halil Kaya, cited above; Eraslan and Others v. Turkey, no. 59653/00, 6 October 2009; and Galip Doğru v. Turkey, no. 36001/06, 28 April 2015; for the Court’s approach following Ibrahim and Others, see Bayram Koç v. Turkey, no. 38907/09, 5 September 2017; İzzet Çelik v. Turkey, no. 15185/05, 23 January 2018; Girişen v. Turkey, no. 53567/07, 13 March 2018; Canşad and Others v. Turkey, no. 7851/05, 13 March 2018; Ömer Güner v. Turkey, no. 28338/07, 4 September 2018; Mehmet Duman v. Turkey, no. 38740/09, 23 October 2018). 28. Moreover, the Court considers that where a procedural defect has been identified, it falls to the domestic courts in the first place to carry out an assessment as to whether the procedural shortcoming has been remedied in the course of the ensuing proceedings, the lack of an assessment to that effect in itself being prima facie incompatible with the requirements of a fair trial in accordance with Article 6 of the Convention. In the absence of any such assessment, the Court must nevertheless make its own determination. However, the onus will be on the Government to demonstrate convincingly why, exceptionally and in the specific circumstances of the case, the overall fairness of the criminal proceedings was not irretrievably prejudiced by the restriction on access to a lawyer (see Ibrahim and Others, cited above, § 265, and Beuze, cited above, § 145). 29. Turning to the circumstances of the present case, the Court notes that the applicant’s access to a lawyer was restricted pursuant to Law no. 3842 and was, as such, a systemic restriction applicable at the time of his arrest (Salduz, cited above, § 56). 30. The Court reiterates that restrictions on access to a lawyer for compelling reasons, at the pre-trial stage, are permitted only in exceptional circumstances, must be of a temporary nature and must be based on an individual assessment of the particular circumstances of the case. Reiterating that the existence of exceptional circumstances which satisfy the substantive requirement of compelling reasons does not automatically provide adequate justification for limiting suspects’ access to legal advice, the Court notes that a statutory restriction of the kind described in the above paragraph, which excludes any individual assessment, cannot stand up to scrutiny in relation to the procedural requirements of the concept of “compelling reasons” (see Beuze, cited above, §§ 138 and 142). Furthermore, the Government have not demonstrated any compelling reasons either, and it is not for the Court to ascertain such circumstances of its own motion (see Beuze, cited above, § 163). Hence, the Court considers that in the present case there were no compelling reasons to restrict the applicant’s right to a lawyer whilst in police custody. 31. The Court notes that although on 10 April 1993 the applicant had already, before the public prosecutor and the investigating judge, rejected the incriminating statements he had made to the police regarding his involvement in the killings of the chief public prosecutor of the Istanbul State Security Court, Y.G., together with his protection officer and his driver on 6 February 1992, the trial court examined neither the admissibility of the evidence regarding that incident given by the applicant in the absence of a lawyer nor the circumstances in which those statements had been given before using them to convict him (see Beuze, cited above, §§ 171-74 where the Court held that this examination lay at the heart of the second stage of the test set out in the Salduz and Ibrahim and Others, both cited above; Mehmet Duman, cited above; § 41; Ömer Güner, cited above, § 36; Canşad and Others, cited above § 44; Girişen, cited above, § 60; İzzet Çelik, cited above, § 38; and Bayram Koç, cited above, § 23). Likewise, the Court of Cassation dealt with this issue in a formalistic manner and failed to remedy this shortcoming. Moreover, the Government have not demonstrated that the absence of legal assistance at the initial stage of the investigation exceptionally and in the specific circumstances of the case did not irretrievably prejudice the applicant’s defence rights concerning the above-mentioned killings of 6 February 1992. 32. The foregoing considerations are sufficient for the Court to conclude that the overall fairness of the criminal proceedings against the applicant, in so far as they concern the killings of 6 February 1992, was prejudiced to an extent that is incompatible with Article 6 of the Convention. 33. Accordingly, there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention. 34. Having regard to the above finding, the Court considers that it is not necessary to examine whether the systemic restriction imposed on the applicant’s right of access to a lawyer and the use by the domestic courts of the statements he had made in the absence of a lawyer also prejudiced the overall fairness of the criminal proceedings in respect of the other acts forming part of his conviction under Article 146 of the former Criminal Code. 35. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

36. The applicant claimed 50,000 euros (EUR) in respect of pecuniary damage, asserting that his unlawful detention and conviction were based solely on the statement he had made in the absence of a lawyer during the preliminary investigation stage. 37. The applicant further claimed EUR 50,000 in respect of non-pecuniary damage and EUR 1,000 in respect of fees of his counsel. 38. The Government contested those claims. 39. The Court rejects the claim in so far as it concerns the pecuniary damage as it finds no causal link between the violation found and the pecuniary damage alleged. It also dismisses the claim for costs and expenses as the applicant submitted no documentary proof in support of that claim. 40. As for non-pecuniary damage, the Court considers that the finding of a violation of Article 6 §§ 1 and 3 (c) of the Convention in the instant case constitutes sufficient just satisfaction given the possibility under Article 311 of the Code of Criminal Procedure of having the domestic proceedings reopened in the event that the Court finds a violation of the Convention. It therefore makes no award under this head. FOR THESE REASONS, THE COURT, UNANIMOUSLY,
Done in English, and notified in writing on 13 July 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Hasan Bakırcı Carlo RanzoniDeputy RegistrarPresident