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You are here: BAILII >> Databases >> European Court of Human Rights >> SALDUZ v. TURKEY - 36391/02 [2008] ECHR 1542 (27 November 2008) URL: http://www.bailii.org/eu/cases/ECHR/2008/1542.html Cite as: [2008] ECHR 1542, (2009) 49 EHRR 19, [2010] Crim LR 419, 26 BHRC 223, 49 EHRR 19

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CASE OF SALDUZ v. TURKEY

(Application no. 36391/02)

JUDGMENT

STRASBOURG

27 November 2008

This judgment is final but may be subject to editorial revision.

In the case of Salduz v. Turkey,

The European Court of Human Rights, sitting as a Grand Chamber composed of:

Nicolas Bratza, President,
Christos Rozakis,
Josep Casadevall,
Rıza Türmen,
Rait Maruste,
Vladimiro Zagrebelsky,
Stanislav Pavlovschi,
Alvina Gyulumyan,
Ljiljana Mijović,
Dean Spielmann,
Renate Jaeger,
David Thór Björgvinsson,
Ján Šikuta,
Ineta Ziemele,
Mark Villiger,
Luis López Guerra,
Mirjana Lazarova Trajkovska, judges,
and Vincent Berger, Jurisconsult,

Having deliberated in private on 19 March and 15 October 2008,

Delivers the following judgment, which was adopted on the last mentioned date:

PROCEDURE

7.  On 24 September 2007 a panel of the Grand Chamber decided to accept his request (Rule 73).

There appeared before the Court:

(a)  for the Government
Mr. M. Özmen, co-Agent,
Ms N. Çetin,
Ms A. Özdemir,
Ms İ. Kocayiğit
Mr C. Aydin, Advisers;

(b)  for the applicant
Mr U. Kilinç, Counsel,
Ms T. Aslan, Adviser.

The Court heard addresses by Mr Kılınç and Mr Özmen, as well as their replies to questions by the Court.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

A.  The applicant's arrest and detention

B.  The trial

“... in view of these material facts, the court does not accept the applicant's denial and finds that his confession to the police is substantiated.”

C.  The appeal

II.  RELEVANT LAW AND PRACTICE

A.  Domestic law

1.  The legislation in force at the time of the application

2.  Recent amendments

B.  Relevant international law materials

1.  Procedure in juvenile cases

(a)  Council of Europe

“15. Where juveniles are detained in police custody, account should be taken of their status as a minor, their age and their vulnerability and level of maturity. They should be promptly informed of their rights and safeguards in a manner that ensures their full understanding. While being questioned by the police they should, in principle, be accompanied by their parent/legal guardian or other appropriate adult. They should also have the right of access to a lawyer and a doctor...”

“Recommends the governments of member states to review, if necessary, their legislation and practice with a view:

8.  to reinforcing the legal position of minors throughout the proceedings, including the police interrogation, by recognising, inter alia:

–  the right to the assistance of a counsel who may, if necessary, be officially appointed and paid by the state.”

(b)  United Nations

(i)  Convention on the Rights of the Child

“States Parties shall ensure that: ...

(d)  Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.”

(ii)  General comment no. 10 of the Committee on the Rights of the Child, dated 25 April 2007 (CRC/C/GC/10)

“49.  The child must be guaranteed legal or other appropriate assistance in the preparation and presentation of his/her defence. CRC does require that the child be provided with assistance, which is not necessarily under all circumstances legal but it must be appropriate. It is left to the discretion of the States parties to determine how this assistance is provided but it should be free of charge...

...

52.  The Committee recommends that the States parties set and implement time limits for the period between the communication of the offence and the completion of the police investigation, the decision of the prosecutor (or other competent body) to bring charges against the child, and the final adjudication and decision by the court or other competent judicial body. These time limits should be much shorter than those set for adults. But at the same time, decisions without delay should be the result of a process in which the human rights of the child and legal safeguards are fully respected. In this decision-making process without delay, the legal or other appropriate assistance must be present. This presence should not be limited to the trial before the court or other judicial body, but also applies to all other stages of the process, beginning with the interviewing (interrogation) of the child by the police.”

(iii)  Concluding Observations of the United Nations Committee on the Rights of the Child: Turkey, dated 9 July 2001 (CRC/C/15/Add.152.)

36.  The relevant part of this text provides as follows:

“66.  The Committee recommends that the State party continue reviewing the law and practices regarding the juvenile justice system in order to bring it into full compliance with the Convention, in particular articles 37, 40 and 39, as well as with other relevant international standards in this area, such as the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules) and the United Nations Guidelines for the Prevention of Juvenile Delinquency (the Riyadh Guidelines), with a view to raising the minimum legal age for criminal responsibility, extending the protection guaranteed by the Juvenile Law Court to all children up to the age of 18 and enforcing this law effectively by establishing juvenile courts in every province. In particular, it reminds the State party that juvenile offenders should be dealt with without delay, in order to avoid periods of incommunicado detention, and that pre-trial detention should be used only as a measure of last resort, should be as short as possible and should be no longer than the period prescribed by law. Alternative measures to pre-trial detention should be used whenever possible.”

2.  Right of access to a lawyer during police custody

(a)  Council of Europe

(i)  Rules adopted by the Committee of Ministers

“Legal advice

23.1 All prisoners are entitled to legal advice, and the prison authorities shall provide them with reasonable facilities for gaining access to such advice.

23.2 Prisoners may consult on any legal matter with a legal adviser of their own choice and at their own expense.

...

23.5 A judicial authority may in exceptional circumstances authorise restrictions on such confidentiality to prevent serious crime or major breaches of prison safety and security.”

(ii)  European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT)

“61.  Despite the many changes to legislation in recent years, certain weaknesses remain as regards formal safeguards against ill treatment. Perhaps the most important shortcoming is that persons detained on suspicion of collective offences falling under the jurisdiction of the State Security Courts are still not entitled to access to a lawyer during the first four days of their custody. Further, despite earlier affirmations to the contrary, the Turkish authorities made clear in their response to the report on the February/March 1999 visit that such persons are being denied during the first four days of their custody the possibility to inform a relative of their situation. Such incommunicado detention can only facilitate the infliction of ill treatment.

The CPT must therefore reiterate once again the recommendation that all persons deprived of their liberty by the law enforcement agencies, including persons suspected of offences falling under the jurisdiction of the State Security Courts, be granted as from the outset of their custody the right of access to a lawyer. The CPT recognises that in order to protect the legitimate interests of the police investigation, it may exceptionally be necessary to delay for a certain period a detained person's access to a lawyer of his choice; however, in such cases, access to another independent lawyer should be arranged.

The implementation of the above recommendation will require legislative measures. However, in the meantime, immediate steps should be taken to ensure that existing legal provisions are complied with. Indeed, the information gathered during the July 2000 ad hoc visit clearly indicates that even after the first four days of police custody, access to a lawyer for persons suspected of State Security Court offences is in practice the exception rather than the rule. The CPT recommends that the officials responsible for carrying out checks and inspections under the previously-mentioned compliance monitoring procedure be instructed to pay particular attention to whether persons suspected of collective offences falling under the jurisdiction of the State Security Courts are being informed of their right to have access to a lawyer after the first four days of their custody and are being placed in a position effectively to exercise that right.”

“12.  The amendments made to Article 16 of the Law on the Organisation and Trial Procedures of State Security Courts have also introduced an improvement as regards access to a lawyer for persons detained on suspicion of collective offences falling under the jurisdiction of State Security Courts. For such persons, the right of access to a lawyer becomes operative after the prosecutor has issued a written order for the extension of police custody beyond 48 hours; in other words, they are now denied access to a lawyer only for two days as compared to four days under the previous law.

Whilst welcoming this step forward, the CPT regrets that the opportunity was not taken to guarantee to persons detained for collective State Security Court offences a right of access to a lawyer as from the very outset of their custody (and hence align their rights in this respect with those of ordinary criminal suspects). The CPT trusts that the Turkish authorities will in the near future implement the Committee's long-standing recommendation that all persons deprived of their liberty by law enforcement agencies, including persons suspected of offences falling under the jurisdiction of the State Security Courts, be granted as from the outset of their custody the right of access to a lawyer.

...

46.  Reference has been made earlier to recent positive legislative developments concerning the rights of access to a lawyer and to have one's custody notified to a relative (cf. paragraphs 12 to 14). They have further improved an already impressive legal and regulatory framework to combat torture and ill-treatment. Nevertheless, the CPT remains very concerned by the fact that persons detained on suspicion of collective offences falling under the jurisdiction of State Security Courts are still denied access to a lawyer during the first two days of their custody; its position on this point has been made clear in paragraph 12.

Further, the actual content of the right of access to a lawyer for persons suspected of State Security Court Offences remains less well developed than in the case of ordinary criminal suspects. In particular, as far as the CPT can ascertain, it is still the case that such suspects are not entitled to have the lawyer present when making a statement to the police and that the procedure allowing for the appointment of a lawyer by the Bar Association is not applicable to them. Similarly, the provision making obligatory the appointment of a lawyer for persons under 18 still does not apply to juveniles who are detained on suspicion of State Security Court offences. In this regard, the CPT reiterates the recommendation already made in the report on the October 1997 visit, that the relevant provisions of Articles 135, 136 and 138 of the Code of Criminal Procedure be rendered applicable to persons suspected of offences falling under the jurisdiction of the State Security Courts.”

(b)  United Nations

(i)  International Covenant on Civil and Political Rights

(ii)  United Nations Committee against Torture

“5.  The Committee expresses concern about:

(c) Allegations that persons in police custody have been denied prompt and adequate access to legal and medical assistance and that family members have not been promptly notified of their detention;

...

7.  The Committee recommends that the State party:

(a)  Ensure that detainees, including those held for offences under the jurisdiction of State Security Courts, benefit fully in practice from the available safeguards against ill-treatment and torture, particularly by guaranteeing their right to medical and legal assistance and to contact with their families;

...”

“13. Certain basic guarantees apply to all persons deprived of liberty. Some of these specified in the Convention, and the Committee consistently calls upon the States parties to use them. The Committee's recommendations concerning effective measures aim to clarify the current baseline and are not exhaustive. Such guarantees include, inter alia, ... the right promptly to receive independent legal assistance...”

(c)  European Union

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

A.  Access to a lawyer during police custody

“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.”

1.  The Chamber judgment

2.  The parties' submissions

(a)  The applicant

(b)  The Government

3.  The Court's assessment

(a) The general principles applicable in this case

(b)  Application of the above principles in the present case

(c)  Conclusion

B.  The non-communication of the written opinion of the Principal Public Prosecutor at the Court of Cassation

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

1.  The Chamber's judgment

2.  The parties' submissions

3.  The Court's assessment

II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

“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.”

A.  Damage

1.  The parties' submissions

2.  The Chamber's judgment

3.  The Court's assessment

B.  Costs and expenses

1.  The parties' submissions

2.  The Chamber's judgment

3.  The Court's assessment

C.  Default interest

FOR THESE REASONS, THE COURT UNANIMOUSLY

2.  Holds that there has been a violation of Article 6 § 1 of the Convention, in respect of the non-communication of the written opinion of the Principal Public Prosecutor at the Court of Cassation;

(a)  that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into New Turkish liras at the rate applicable at the date of settlement:

(i)  EUR 2,000 (two thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)  EUR 1,000 (one thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 27 November 2008.

Vincent Berger Nicolas Bratza
Jurisconsult President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following concurring opinions are annexed to this judgment:

(a)  concurring opinion of Judge Bratza;

(b)  joint concurring opinion of Judges Rozakis, Spielmann, Ziemele and Lazarova Trajkovska;

(c)  concurring opinion of Judge Zagrebelsky, joined by Judges Casadevall and Türmen.

N.B.
V.B.

CONCURRING OPINION OF JUDGE BRATZA

The central issue in the present case concerns the use made in evidence against the applicant of a confession made during the course of police interrogation at a time when he had been denied access to a lawyer. The Grand Chamber has found that the restriction on such access irretrievably prejudiced the applicant's rights of defence and that neither the legal assistance subsequently provided to the applicant nor the adversarial nature of the ensuing proceedings could cure the defects which had occurred while the applicant was in police custody. The applicant's rights under Article 6 § 3 (c), read in conjunction with Article 6 § 1, were accordingly violated on account of this lack of legal assistance. I am in full agreement with this conclusion.

In paragraph 55 of the judgment, the Court states as a general principle that in order for the right to a fair trial to remain sufficiently “practical and effective”, Article 6 requires that, as a rule, access to a lawyer should be provided “as from the first interrogation of a suspect by the police”. This principle is consistent with the Court's earlier case-law and is clearly sufficient to enable the Court to reach a finding of a violation of Article 6 on the facts of the present case. However, I share the doubts of Judge Zagrebelsky as to whether in appearing to hold that the right of access to a lawyer only arises at the moment of first interrogation, the statement of principle goes far enough. Like Judge Zagrebelsky, I consider that the Court should have used the opportunity to state in clear terms that the fairness of criminal proceedings under Article 6 requires that, as a rule, a suspect should be granted access to legal advice from the moment he is taken into police custody or pre-trial detention. It would be regrettable if the impression were to be left by the judgment that no issue could arise under Article 6 as long as a suspect was given access to a lawyer at the point when his interrogation began or that Article 6 was engaged only where the denial of access affected the fairness of the interrogation of the suspect. The denial of access to a lawyer from the outset of the detention of a suspect which, in a particular case, results in prejudice to the rights of the defence may violate Article 6 of the Convention whether or not such prejudice stems from the interrogation of the suspect.

JOINT CONCURRING OPINION OF JUDGES ROZAKIS, SPIELMANN, ZIEMELE AND LAZAROVA TRAJKOVSKA

“The essential principle is ... that reparation must, as far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed”. (Series A, no. 17, p. 47)

Article 35 of the Draft Articles reads as follows:

“A State responsible for an internationally wrongful act is under an obligation to make restitution, that is, to re-establish the situation which existed before the wrongful act was committed, provided and to the extent that restitution:

(a)  is not materially impossible;

(b)  does not involve a burden out of all proportion to the benefit deriving from restitution instead of compensation.”

There is no reason not to apply this principle to make reparation for international wrongful acts in the field of human rights (see Loukis G. Loucaides, “Reparation for Violations of Human Rights under the European Convention and Restitutio in integrum”, [2008] European Human Rights Law Review, pp. 182-192).

In Papamichalopoulos and Others v. Greece ((Article 50), 31 October 1995, Series A no. 330 B) the Court held:

“34. The Court points out that by Article 53 of the Convention the High Contracting Parties undertook to abide by the decision of the Court in any case to which they were parties; furthermore, Article 54 provides that the judgment of the Court shall be transmitted to the Committee of Ministers which shall supervise its execution. It follows that a judgment in which the Court finds a breach imposes on the respondent State a legal obligation to put an end to the breach and make reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach.

The Contracting States that are parties to a case are in principle free to choose the means whereby they will comply with a judgment in which the Court has found a breach. This discretion as to the manner of execution of a judgment reflects the freedom of choice attaching to the primary obligation of the Contracting States under the Convention to secure the rights and freedoms guaranteed (Article 1). If the nature of the breach allows of restitutio in integrum, it is for the respondent State to effect it, the Court having neither the power nor the practical possibility of doing so itself. If, on the other hand, national law does not allow - or allows only partial - reparation to be made for the consequences of the breach, Article 50 empowers the Court to afford the injured party such satisfaction as appears to it to be appropriate.”

“1. The State responsible for an internationally wrongful act is under an obligation to compensate the damage caused thereby, insofar as such damage is not made good by restitution. ...”

It is therefore right that, wherever possible, the Court should seek to restore the status quo ante for the victim. However the Court should also take into consideration that “Wiping out all the consequences of the wrongful act may ... require some or all forms of reparation to be provided, depending on the type and extent of the injury that has been caused” (see J. Crawford, The International Law Commission's Articles on State Responsibility. Introduction, Text and Commentaries, Cambridge University Press, 2002, p. 211, (2)) and in view of the remedies available at the domestic level (Article 41).

There is however a temporal limitation for the applicability of this provision. Paragraph 2 of Article 311 states that the above-mentioned provision is not applicable to applications which were lodged with the European Court of Human Rights before 4 February 2003 and for those judgments which became final before 4 February 2003. We believe that where, as in the present case, the respondent State has equipped itself with such a procedure it is the Court's duty not only to suggest timidly that reopening is the most appropriate form of redress, as paragraph 72 of the judgment does, but also to urge the authorities to make use of that procedure, however unsatisfactory it may appear, or to adapt existing procedures, provided, of course, that the applicant so wishes. However, this is not legally possible unless such an exhortation appears in the operative provisions of the judgment.

CONCURRING OPINION OF JUDGE ZAGREBELSKY,
JOINED BY JUDGES CASADEVALL AND TÜRMEN

(Translation)

To my vote in favour of the judgment's operative provisions, I would like to add a few words to explain the meaning of the Court's reasoning, as I understand it.

The Court found a violation “of Article 6 § 3 (c) of the Convention in conjunction with Article 6 § 1, on account of the lack of legal assistance to the applicant while he was in police custody” (point 1 of the operative provisions). It thus replied to the applicant's complaint “that his defence rights had been violated in that ... he had been denied access to a lawyer while in police custody”. That complaint, raised by the applicant under Article 6 § 3 (c), was rightly formulated more precisely by the Court, which linked it with Article 6 § 1.

To my mind the meaning of the Court's judgment is quite clear. If there is any doubt at all, what the Court says in paragraph 53, referring back to paragraph 37, makes things clearer still. The generally recognised international standards, which the Court accepts and which form the framework for its case-law, provide: “An untried prisoner shall be entitled, as soon as he is imprisoned, to choose his legal representation ... and to receive visits from his legal adviser with a view to his defence and to prepare and hand to him and to receive, confidential instructions...”

It is therefore at the very beginning of police custody or pre-trial detention that a person accused of an offence must have the possibility of being assisted by a lawyer, and not only while being questioned.

The importance of interrogations in the context of criminal procedure is obvious, so that, as the judgment makes clear, the impossibility of being assisted by a lawyer while being questioned amounts, subject to exceptions, to a serious failing with regard to the requirements of a fair trial. But the fairness of proceedings against an accused person in custody also requires that he be able to obtain (and that defence counsel be able to provide) the whole wide range of services specifically associated with legal assistance, including discussion of the case, organisation of the defence, collection of evidence favourable to the accused, preparation for questioning, support to an accused in distress, checking his conditions of detention and so on.

The legal principle to be derived from the judgment is therefore that, normally and apart from exceptional limitations, an accused person in custody is entitled, right from the beginning of police custody or pre-trial detention, to be visited by defence counsel to discuss everything concerning his defence and his legitimate needs. Failure to allow that possibility, regardless of the question of interrogations and their use by the courts, amounts, subject to exceptions, to a violation of Article 6 of the Convention.

I would add that, naturally, the fact that defence counsel may see the accused throughout his detention in police stations or in prison is more apt than any other measure to prevent treatment prohibited by Article 3 of the Convention.

The foregoing considerations would not have been necessary if the Court's reasoning had not contained passages capable of suggesting to the reader that the Court requires accused persons to be assisted by defence counsel only from the start of and during interrogation (or even only during an interview of which a formal record is to be produced to be used as evidence by the court). From paragraph 55 onwards the text adopted by the Court concentrates entirely on the answers given by the applicant when questioned which were later used against him.

I would find such a reading of the judgment too reductive. The importance of the Court's decision for the protection of an accused person deprived of his liberty would be severely weakened thereby. And wrongly so, to my mind, since the reasoning linked to the questioning of the applicant and the way his answers were used by the courts is easily explained by the Court's concern to take into consideration the specific facts of the case before it.