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SECOND
SECTION
CASE OF FİKRET ÇETİN v. TURKEY
(Application
no. 24829/03)
JUDGMENT
STRASBOURG
13
October 2009
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Fikret Çetin
v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Ireneu Cabral Barreto,
Danutė
Jočienė,
András Sajó,
Nona
Tsotsoria,
Işıl Karakaş,
Kristina
Pardalos, judges,
and Françoise Elens-Passos,
Deputy Section Registrar,
Having
deliberated in private on 22 September 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 24829/03) 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 Fikret Çetin
(“the applicant”), on 7 April 2003.
- The
applicant was represented by Mr Mahmut Vefa, a lawyer practising in
Diyarbakır. The Turkish Government (“the Government”)
were represented by their Agent.
- The
applicant alleged, in particular, that the criminal proceedings
brought against him had not been fair.
- On
6 March 2008 the President of the Second Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
- The
applicant was born in 1969 and lives in Diyarbakır.
A. The first trial
- In
1994 criminal proceedings were brought against the applicant before
the Diyarbakır State Security Court (“the trial court”)
for the offence of membership of an illegal organisation.
On 15 April 1999 he was acquitted of the charges. When acquitting
him, the trial court considered that there was insufficient evidence
to prove that the applicant was a member of the illegal organisation.
It found, however, that there was sufficient evidence to show that he
had aided and abetted the organisation. Nevertheless, considering
that the applicant had been coerced to aid and abet the organisation
by its members, the trial court concluded that the applicant did not
have the requisite mens rea and acquitted him.
- Before
the appeal lodged by the prosecutor against the applicant's acquittal
was examined by the Court of Cassation, the statute of limitations
for the offence in question had been reached. Accordingly, on
1 February 2000 the Court of Cassation discontinued the criminal
proceedings against the applicant.
B. The second trial
- On
2 June 2000 the applicant was arrested once more and was examined by
a doctor before he was placed in police custody in Diyarbakır.
According to the report of the medical examination, there were no
injuries on the applicant's body.
- According
to the applicant, during his time in police custody he was subjected
to ill-treatment.
- On
5 June 2000 police officers took the applicant to a café and
two shops in the nearby town of Ergani, which had been bombed in
1993. According to the statements drawn up pertaining to those
visits, the applicant told the police officers that he had carried
out the bombings with the assistance of a number of other persons.
- In
a statement taken from the applicant in police custody the same day,
the applicant was reported as having detailed his activities within
the PKK.
- On
6 June 2000 the applicant was released from police custody and was
brought before a prosecutor and then before a judge, who questioned
him further. The applicant denied the statements taken from him by
police officers the previous day, and added that he had not been
involved in any bombing. The applicant told the judge that he had
signed the statements in police custody because he had thought that
he would be ill-treated by the police officers if he refused to sign
them. He added that in 1993 he had collected money by making threats
on behalf of the PKK, taken part in demonstrations and distributed
leaflets in support of that organisation, but that he had already
been tried and spent time in prison for those activities (see
paragraphs 6-7 above). The judge remanded the applicant in custody
pending the introduction of criminal proceedings against him. The
same day the applicant was examined by a doctor, who reported that
there were no injuries on the applicant's body.
- When
questioned by the police officers and subsequently by the prosecutor
and the judge, the applicant was not represented by a lawyer.
- On
1 August 2000 the prosecutor at the Diyarbakır State Security
Court filed an indictment with that court, accusing the applicant of
activities carried out for the purpose of bringing about the
secession of part of the national territory.
- In
the proceedings before the trial court the applicant was represented
by a lawyer. During the trial the applicant repeatedly denied his
police custody statements and told the trial court that the
statements had been taken from him under “intense pressure”.
- On
6 November 2001 the trial court found the applicant guilty of
offences of membership of an illegal organisation and planting
explosives. He was sentenced to seventeen years, four months and ten
days' imprisonment. In convicting the applicant the trial court
relied on the statements taken from him in police custody (see
paragraph 11 above). In response to the applicant's lawyer's
submissions that the applicant was being tried twice for the same
offence, the trial court stated in its judgment that the previous
trial had not concerned the bombing incidents.
- On
13 November 2001 the applicant appealed against his conviction and
argued, inter alia, that he had been subjected to
ill-treatment in police custody and that he had been forced to sign a
number of documents.
- In
his written observations submitted to the Court of Cassation the
prosecutor referred to the applicant's allegations of ill-treatment
and drew the Court of Cassation's attention to the trial court's
failure to take into account a video recording which had apparently
been made at the time when the police officers took the applicant to
the café. The prosecutor's observations were not communicated
to the applicant.
- As
requested by the applicant, the Court of Cassation held a hearing
before it rendered its decision on the appeal. Nevertheless, neither
the applicant nor his lawyer attended the hearing. On 20 June 2002
the Court of Cassation rejected the appeal and upheld the applicant's
conviction. The decision was deposited with the registry of the trial
court on 16 December 2002.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained that that he had been subjected to ill-treatment
in police custody in violation of Article 3 of the Convention, which
reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
- The
Government contested that argument.
Admissibility
- The
Government submitted, inter alia, that there was no evidence
in support of the applicant's allegations of ill-treatment. In any
event, the applicant had failed to make use of a number of civil and
administrative remedies. Finally, the applicant had not complied with
the six-month rule as he had not brought his allegations to the
attention of the national authorities until 2001.
- The
applicant maintained that he had complied with the admissibility
requirements of Article 35 of the Convention and that he had
introduced his application within six months of being notified of the
Court of Cassation decision of 20 June 2002.
- The
Court considers it unnecessary to determine whether the applicant
complied with the six-month rule or whether he exhausted domestic
remedies, since this part of the application is inadmissible for the
following reasons.
- The
Court reiterates that allegations of ill-treatment must be supported
by appropriate evidence (see, in particular, Tanrıkulu and
Others v. Turkey (dec.), no. 45907/99, 22 October 2002). To
that end, the Court notes that the medical report prepared at the end
of the applicant's detention in police custody does not contain any
indication that he was ill-treated in police custody (see paragraph
12 above). In this connection the Court observes that the applicant
did not challenge the medical report's accuracy at the national level
or before the Court. Moreover, there is no information in the file to
show that the applicant requested but was refused permission to see
another doctor at the end of the custody period.
- Finally,
and equally importantly, the Court notes that, beyond alleging that
he was ill-treated, the applicant has not provided any information as
to the nature of the alleged ill-treatment before the national
authorities or indeed before the Court.
- In view of the above, the Court is of the opinion that
the applicant has not laid the basis of an arguable claim that he was
subjected to ill-treatment whilst in police custody. It follows that
this part of the application is unsubstantiated and must be rejected
as being manifestly ill-founded, pursuant to Article 35 §§
3 and 4 of the Convention.
II. ALLEGED VIOLATIONS OF ARTICLE 6 OF THE CONVENTION
- Relying
on Article 6 § 1 and 3 (c) of the Convention the applicant
complained that he had not been able to benefit from the assistance
of a lawyer while he was detained in police custody or when he was
taken to the café and the shops by the police officers. Under
Article 6 § 1 of the Convention the applicant further complained
that the observations which the public prosecutor had submitted to
the Court of Cassation had not been forwarded to him. The provisions
relied on by the applicant provide as follows:
Article 6
“1. In the determination of ... any
criminal charge against him, everyone is entitled to a fair ...
hearing ... 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;
...”
- The
Government contested the applicant's arguments.
A. Admissibility
- The
Government considered that the applicant had failed to comply with
the six-month time-limit. They submitted that the final decision in
the applicant's case had been adopted by the Court of Cassation on
26 June 2002 but that the applicant had not introduced his
application until 7 April 2003, that is more than six months
later. The Government also argued that the applicant had failed to
exhaust domestic remedies because he had not raised these complaints
before the domestic courts.
- Concerning
the issue of exhaustion of domestic remedies, the Court notes that it
has already examined and rejected the Government's preliminary
objections in similar cases (see, in particular, Taşçıgil
v. Turkey, no. 16943/03, §§ 31-32, 3 March
2009 and the case cited therein). The Court finds no particular
circumstances in the instant case which would require it to depart
from its findings concerning the above-mentioned application.
- As for the Government's submissions regarding the
six-month issue, the Court observes that, at the time of the events,
despite the wording of Article 33 of the Code of Criminal
Procedure which stipulated that judgments and decisions of courts
were to be served on the parties to the case, it was not the practice
of the Criminal Divisions of the Court of Cassation to serve their
decisions on defendants (see Seher Karataş v. Turkey,
no. 33179/96, § 28, 9 July 2002). However, the accused and his
or her lawyer had the opportunity to request a copy of the judgment
as soon as the judgment of the Court of Cassation had been sent back
to the registry of the first-instance court.
- In
the present case, the written judgment which contained detailed legal
reasoning was at the disposal of the applicant and his lawyer from
16 December 2002, when it was sent to the registry of the
first-instance court. The application was introduced less than six
months thereafter, namely on 7 April 2003.
- Consequently,
the Court rejects the Government's above-mentioned two preliminary
objections. The Court notes that these complaints are not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that they are not inadmissible on any
other grounds. They must therefore be declared admissible.
B. Merits
1. Complaint concerning the lack of legal assistance at
the initial stages of the criminal proceedings
- The
Court reiterates the basic principles laid down in the case of Salduz
v. Turkey [GC] (no. 36391/02, §§ 50-55, 27 November
2008). It will examine the present case in the light of those
principles.
- The
Court repeats that in the present case the restriction imposed on the
applicant's right of access to a lawyer was systematic and applied to
anyone held in police custody in connection with an offence falling
under the jurisdiction of the State Security Courts. Even though the
applicant repeatedly denied his statements taken in the absence of a
lawyer (see paragraphs 15 and 17 above), the Diyarbakır
State Security Court used those statements when convicting him (see
paragraph 16 above). Thus, in the present case, the applicant was
undoubtedly affected by the restrictions on his access to a lawyer.
Therefore, neither the assistance provided subsequently by a lawyer
nor the adversarial nature of the ensuing proceedings could cure the
defects which had occurred earlier.
- In
sum, even though the applicant had the opportunity to challenge the
evidence against him at the trial and subsequently on appeal, the
absence of a lawyer while he was in police custody irretrievably
affected his defence rights.
- There
has therefore been a violation of Article 6 § 3 (c) of the
Convention in conjunction with Article 6 § 1.
2. Complaint concerning the non-communication of the
prosecutor's written observations to the applicant
- The
Government stated that the applicant could have found out about the
written observations of the prosecutor as all files pending before
the Court of Cassation were accessible to the parties.
- The
Court notes that it has already examined the same grievance and found
a violation of Article 6 § 1 of the Convention in its judgment
in the case of Göç v. Turkey [GC] (no. 36590/97,
§§ 53-58, ECHR 2002 V).
- The
Court has examined the complaint made by the applicant in the present
application and finds no particular circumstances which would require
it to depart from its findings in the aforementioned case.
- There
has accordingly been a violation of Article 6 § 1 of the
Convention as regards the non-communication to the applicant of the
prosecutor's written observations.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Lastly,
relying on Article 6 §§ 1 and 3 (a)-(b) of the Convention
the applicant complained that he had not been given adequate time and
facilities to defend himself and that he had been tried for the same
offence twice. Under Article 13 of the Convention he maintained that
he had not had an effective remedy in respect of these complaints.
- Having regard to the facts of the case, the
submissions of the parties and its finding of violations of Article 6
of the Convention, the Court considers that it has examined the main
legal questions raised in the present application. It concludes
therefore that there is no need to give a separate ruling on the
applicant's remaining complaints under Articles 6 and 13 of the
Convention (see, mutatis mutandis, Kamil Uzun
v. Turkey, no. 37410/97, § 64, 10 May
2007).
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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.”
A. Damage
- The
applicant claimed 4,500 euros (EUR) in respect of pecuniary damage
and EUR 10,000 in respect of non-pecuniary damage.
- The
Government considered the applicant's claims to be excessive and
unsubstantiated.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, it awards the applicant EUR 2,000 in respect of
non-pecuniary damage.
- The
Court also reiterates that the most appropriate form of redress for a
violation of Article 6 § 1 would be to ensure that the
applicant, as far as possible, is put in the position in which he
would have been had this provision not been disregarded.
Consequently, it considers that the most appropriate form of redress
would be the retrial of the applicant in accordance with the
requirements of Article 6 § 1 of the Convention, should the
applicant so request (see Salduz, cited above, § 72 and
the cases cited therein).
B. Costs and expenses
- The
applicant also claimed EUR 3,923 for the costs and expenses incurred
before the domestic courts as well as for those incurred before the
Court. In calculating this amount the applicant took into account the
recommended minimum fees by the Diyarbakır Bar Association.
- The
Government observed that the claim in respect of costs and expenses
was not supported with any evidence, and invited the Court to reject
the claim.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and are reasonable as to
quantum. In the present case, the applicant did not substantiate that
he had actually incurred the costs claimed. In particular, in support
of his claim for the fees of his lawyer he failed to submit
documentary evidence, such as a contract, a fee agreement or a
breakdown of the hours spent by his lawyer on the case. Accordingly,
the Court makes no award in respect of the claim for costs and
expenses.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaints under Article 6 of the
Convention concerning the lack of legal assistance at the initial
stages of the criminal proceedings as well as the non-communication
of the prosecutor's written observations admissible and the complaint
under Article 3 of the Convention inadmissible;
- Holds that there is no need to examine
separately the remaining complaints under Article 6 of the Convention
as well as the complaint under Article 13 of the Convention;
- Holds that there has been a violation of Article
6 § 3 (c) of the Convention in conjunction with Article 6 §
1 on account of the lack of legal assistance at the initial stages of
the criminal proceedings;
- Holds that there has been a violation of Article
6 § 1 of the Convention on account of the non-communication of
the prosecutor's written observations to the applicant;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 2,000 (two thousand
euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage, to be converted into the national currency of
the respondent Government at the rate applicable at the date of
settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 13 October 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Françoise
Tulkens
Deputy Registrar President
