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SECOND
SECTION
CASE OF AMER v. TURKEY
(Application
no. 25720/02)
JUDGMENT
STRASBOURG
13 January
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 Amer v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise
Tulkens,
President,
Ireneu
Cabral Barreto,
Vladimiro
Zagrebelsky,
Danutė
Jočienė,
Dragoljub
Popović,
Nona
Tsotsoria,
Işıl
Karakaş,
judges,
and Sally
Dollé, Section
Registrar,
Having
deliberated in private on 9 December 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 25720/02) 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 dual Sudanese-Bulgarian national, Mr Yassir
Faathelrahman Amer (“the applicant”), on 14 June 2002.
- The
applicant was represented by Mr Boyra Baysan, a lawyer practising in
Nicosia in the “Turkish Republic of Northern Cyprus” (the
“TRNC”). The Turkish Government (“the Government”)
were represented by their Agent.
- Relying
on Article 5 § 2 of the Convention the applicant alleged that he
had not been not been promptly informed of the reasons for his
arrest. Under Article 6 he alleged, in particular, that he had not
been provided with an interpreter to enable him to understand the
accusations against him.
- On
5 November 2007 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
Bulgarian Government did not make use of their right to intervene
under Article 36 § 1 of the Convention.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1969 and is currently serving a prison sentence
in the “TRNC”.
A. Introduction
- On
29 May 2001 a businessman was found dead in his office in the “TRNC”.
His throat had been slit and there were also a number of injuries to
his head caused by blows. According to the autopsy report, the
businessman had been killed in his office between 8 p.m. and 10.45
p.m. on 29 May 2001.
- The
remaining facts of the case are disputed by the parties and are set
out separately. The facts as presented by the applicant are set out
in Section B below (paragraphs 9-22). The Government's
submissions concerning the facts are summarised in Section C below
(paragraphs 23-32). The documentary evidence submitted by the
applicant and the Government is summarised in Section D (paragraphs
33-46).
B. The applicants' submissions on the facts
- The
applicant, his wife and their two children moved to the “TRNC”
in 1997 and the applicant opened two shops, selling musical
equipment. The applicant did not speak much Turkish.
- At
around midnight on 29 May 2001 the applicant was arrested at his home
by police officers. He was asked to drive to the Central Police
Station in his own car, accompanied by a police officer. On his
arrival at the police station he was handcuffed, questioned by the
director of the police station and his fingerprints were taken. When
the applicant asked the police why he had been arrested, he received
no answers.
- The
following morning, namely 30 May 2001, the police brought in Mr M.E.
and Mr W.F., two Egyptian students who had arrived in the “TRNC”
three months previously.
- On
2 June 2001 the applicant was brought before a judge who ordered his
detention for an additional period of eight days.
- The
same day the applicant was interviewed by Mr Z.A., a police
investigator, who told the applicant that, in the opinion of the
police, Mr M.E. was the murderer. Police investigator Mr Z.A.
then questioned the applicant and recorded his statement on a piece
of paper which he asked the applicant to sign. The applicant did not
understand what was written in the statement because the handwriting
was illegible and his Turkish was not sufficient. He asked for an
interpreter. But when police investigator Mr Z.A. told him that there
was nothing in the statement that he should be afraid of, and that
his lawyer would translate it for him the following morning, the
applicant signed the statement. Police investigator Mr Z.A. then
persuaded the applicant to write something in Turkish on another
piece of paper and sign. He told the applicant that he would be
released the following morning.
- On
3 June 2001 the applicant was taken to the office of Mr E.D., the
chief of police. Mr H.M., who had been appointed as the applicant's
legal representative, was also present in the room. The chief of
police told the applicant that he believed that the applicant and Mr
M.E. (see paragraph 11 above) were the murderers. When the applicant
protested his innocence, the police chief threatened him. The
applicant was then handcuffed and taken back to his cell. Throughout
this time the applicant's lawyer Mr H.M. stayed quiet and did not
intervene.
- The
same day the applicant was taken to another room to see police
investigator Mr Z.A., who had questioned him the previous day.
Mr Z.A. and a number of other police officers told the applicant
that they knew about the confession the applicant had made to the
chief of police Mr E.D. earlier in the day, and asked him to sign
that confession which had since been written on a piece of paper. The
applicant refused to sign it and asked for his lawyer. When his
lawyer Mr H.M. came into the room the applicant asked police
investigator Mr Z.A. to read to his lawyer the statements he had
signed the previous day. This request was refused by Mr Z.A., who
stated that it was against their rules. The applicant was then taken
back to his cell.
- The
applicant was detained in the police station until he was brought
before the judge and charged on 22 June 2001. This time an
interpreter was present in the courtroom and the applicant rejected
the allegations against him. The judge remanded the applicant in
custody and transferred him to a prison where he would be held until
the end of the criminal proceedings.
- The
trial began before the Lefkoşa Assize Court (“the trial
court”). In the course of the trial the applicant dismissed his
lawyer and instructed another lawyer, Mr M.A., to represent him.
- During
one of the hearings the applicant's lawyer Mr M.A. objected to the
trial court's adding the statements taken from the applicant in
police custody to the case file, arguing that they had been taken in
the absence of an interpreter. When this request was rejected the
lawyer Mr M.A. withdrew from representing the applicant. Despite the
applicant's wish to represent himself in the proceedings, the trial
court appointed Mr B.B. as his legal representative.
- On
4 March 2002 the applicant was found guilty as charged and sentenced
to life imprisonment. He appealed.
- The
Court of Appeal adjourned the initial hearing four times and did not
begin the examination of the case until 2005. It upheld the
applicant's conviction in 2006.
- The
prison where the applicant had been detained until his conviction in
2002 had been overcrowded. On occasion, single beds had had to be
used to accommodate two persons. After he was transferred to another
prison following his conviction, he was detained in solitary
confinement on one occasion. On 8 May 2007 special police forces had
carried out an operation in the prison and had ill-treated the
inmates. The applicant had been ill-treated more seriously than his
fellow inmates.
- Although
he had written to a number of authorities and complained about the
circumstances of his detention, nothing was done to remedy them. The
authorities to whom he had sent letters of complaints included the
Sudanese Embassy in Ankara, the Prime Minister, the Ministry of the
Interior and the prison administration.
C. The Government's submissions on the facts
- On
the night of the murder the police received information from the
deceased person's family that the deceased had gone to his office to
meet with the applicant. The police then went to the applicant's home
the same evening and summoned him to the police station to help the
police with their investigation into the murder. The applicant drove
to the police station in his own car, accompanied by a police
officer. The applicant was not arrested; he was merely kept in the
police station to ensure the efficacy of the investigation.
-
The same evening the investigating officer Mr Z.A. took an “open
statement” – a statement taken without a caution as the
applicant had not yet been treated as an accused – from the
applicant (see paragraph 34 below). All that time the conversation
was in Turkish because the applicant had sufficient knowledge of
Turkish and never asked for an interpreter. In fact, an interpreter
was present but the applicant did not want his services, insisting
that his Turkish was sufficiently good.
- According
to the “TRNC” legislation, any detained person must be
brought before a judge within twenty-four hours. The person can then
be detained in police custody for a period of up to three months but
a judge reviews the detention every eight days.
- When
the applicant was brought before the judge on 2 June 2001, the police
explained to the judge, in Turkish, the reasons for the applicant's
detention. The applicant did not complain to the judge that he did
not speak Turkish.
- On
3 June 2001 the applicant made an oral confession in front of
Mr E.D., the chief of police. This meeting was arranged by the
applicant's lawyer Mr H.M. who in turn must have been instructed to
do so by the applicant.
- During
the hearings held in the course of the trial the applicant gave
evidence in Turkish, even though an interpreter was present in the
courtroom.
- Although
the applicant was sentenced to life imprisonment, according to the
applicable legislation in force at the time he will spend a total of
eight years in prison.
- Initially
the date of 26 May 2004 was fixed as the date of the first appeal
hearing but the Court of Appeal had to postpone it until 1 November
2004 on account of the illness of the applicant's lawyer. The hearing
was once again postponed on 1 November 2004 as the applicant's lawyer
had still not recovered from his illness. The new date for the first
hearing was set as 15 June 2005. Nevertheless, on 15 June 2005
the applicant turned up at the Court of Appeal without a lawyer and
the hearing had to be postponed once more, this time until 21
September 2005.
- Subsequently,
the Court of Appeal held hearings between 17 and 21 October 2005
and then between 7 and 11 November 2005. The decision of the Appeal
Court was pronounced on 2 March 2006.
- When
the applicant complained of headaches and problems with his eyesight,
he was medically examined in 2007 and 2008 and a number of tests were
carried out. According to the medical reports prepared at the end of
these examinations, there were no traces of haemorrhage. The
applicant was referred to a rheumatology specialist.
D. Documentary evidence submitted by the parties
- The
applicant was questioned by police investigator Mr Z.A. on 30 May
2001 and 2 June 2001. According to the statements, no lawyer or
interpreter was present on these occasions.
- In
the statement taken between 3.40 a.m. and 4.50 a.m. on 30 May 2001,
the applicant was recorded as having stated that he knew the
businessman and that he had cashed two cheques in the businessman's
office on 25 May 2001. In order for the first cheque to be cleared
the applicant needed to deposit the money in the bank on 30 May 2001.
On 29 May 2001 the businessman had telephoned him on a number of
occasions and asked him to bring the money back to him at his office.
He would then return the cheque to the applicant instead of having to
take it to the bank himself the following day. The last telephone
call had been made at 9.20 p.m. on 29 May and the applicant had told
the businessman that “he might come”. However, at 9.30
p.m. the applicant had gone to bed but was arrested at 11 p.m. by
police officers. There is no mention in this statement of the killing
of the businessman or of any other offence.
- In
the statement taken between 10.30 p.m. on 2 June 2001 and 1.50 a.m.
on 3 June 2001, the applicant was recorded as having stated that on
29 May 2001 he had gone home at 8.30 p.m. and seen Mr M.E. (see
paragraph 11 above) outside his house. He had told Mr M.E. that the
businessman was waiting for him and had then gone into the house.
When he had come out of the house Mr M.E. had already gone. Between 9
p.m. and 9.15 p.m. Mr M.E. had telephoned the applicant and said that
he was at the businessman's office and that the alarms were ringing.
The applicant had then gone to that office and seen Mr M.E. waiting
outside. Mr M.E. had then told the applicant that he had gone inside
and hit the businessman with a wooden stick and had then tried
unsuccessfully to open the safe. When the businessman regained
consciousness Mr M.E. had stabbed him. When the applicant said “Don't
tell me you killed him”, Mr M.E. replied “Yes he died; he
did not survive”.
- In
his statements to the police Mr M.E. was recorded as having stated
that the applicant had killed the businessman on his own.
- On
22 June 2001 the police investigator Mr Z.A. read out the charges
against the applicant. This time an interpreter was also present. The
applicant denied the allegations and stated that this was the first
time he was hearing them. A statement to that effect was drafted and
signed by the applicant.
- On
25 September 2001 hearings began before the trial court. The
applicant was charged with fourteen offences, which included, inter
alia, premeditated murder, violence, robbery and the possession
of prohibited weapons, including firearms. The trial court heard
forty-five prosecution and nine defence witnesses. The prosecution
submitted fifty-three items of evidence.
- The
trial court had regard to the two defendants' statements and decided
to disregard those statements in which they implicated each other.
The chief of police Mr E.D. testified before the trial court and said
that the applicant had gone to his office and confessed to the
murder.
- In
the course of the trial the police investigator Mr Z.A. told the
trial court that when he had questioned the applicant on 30 May 2001
an interpreter had been present, but that the applicant had preferred
to give his statement in Turkish. Another police officer told the
trial court that he spoke Arabic and was present at the police
station on 30 May 2001. Nevertheless, the applicant had not wanted
his assistance, insisting instead on giving his statement in Turkish.
- During
a hearing held on 8 October 2001 the applicant told the trial court
that he could speak Turkish but did not have “a complete
knowledge of the Turkish language”. He could not write in
Turkish at all and his reading in Turkish was poor. He added that, in
the early hours of 30 May 2001 the police investigator Mr Z.A. had
hand-drafted the statement and had asked him to sign it. When he had
told Mr Z.A. that he did not know what was written in it, Mr Z.A. had
convinced him to sign the statement by telling him that there was
nothing in the statement which could harm him.
- During
a hearing held on 23 January 2002 the applicant preferred to be
cross-examined in Turkish. He told the trial court that if he did not
understand a question he would ask the interpreter who was already
present in the courtroom. He also told the trial court that, although
he could speak Turkish, he would not be able to write in Turkish.
Furthermore, he could only read typed texts in Turkish but not
handwritten texts.
- On
4 March 2002, in its sixty-eight page judgment, the trial court found
the applicant and the co-accused not guilty on the charge of
premeditated murder, but guilty of the offence of manslaughter and
thirteen other counts. It sentenced them both to life imprisonment.
In reaching its decision the trial court had particular regard to the
testimony of the chief of police Mr E.D (see paragraphs 14 and
27 above) and the statements taken from the applicant on 30 May 2001
and 2 June 2001.
- On
22 March 2002 the applicant appealed against his conviction and
argued, in particular, that the trial court had been wrong in
admitting in evidence the statements taken from him by police
investigator Mr Z.A.; it was obvious that his knowledge of the
Turkish language was very limited, but despite this he had not been
given the assistance of an interpreter when questioned by Mr Z.A.
- The
first hearing which the Court of Appeal had scheduled for 15 June
2005 was postponed until 21 September 2005 because one of the judges
was on holiday abroad. On 21 September 2005 it postponed the hearing
until 17 October 2005. After six more postponements, the Court of
Appeal began holding hearings on 7 November 2005.
- On
2 March 2006 the Court of Appeal upheld the judgment of the trial
court. It ruled that the trial court had carried out an adequate
examination of the evidence, heard the witnesses and found it
established beyond reasonable doubt that the applicant was guilty. In
the Court of Appeal's 32-page decision there was no mention of the
applicant's complaint concerning the lack of an interpreter when he
was questioned by the police.
THE LAW
I. THE GOVERNMENT'S PRELIMINARY OBJECTION
- The Government disputed Turkey's liability under the
Convention for the violations alleged in the application. They
claimed that the acts complained of were imputable exclusively to the
“TRNC”, an independent and sovereign State established by
the Turkish-Cypriot community in the exercise of its right to
self-determination. In particular, the Government submitted that
there was no allegation of involvement of Turkish authorities in the
judicial proceedings before the independent courts of the “TRNC”
which are the subject matter of the present application.
- The
Court reiterates the findings of its previous judgments in which the
respondent Government's similar objections were dismissed (see, inter
alia, Loizidou v. Turkey ((preliminary objections),
judgment of 23 March 1995, Series A no. 310, and (merits),
judgment of 18 December 1996, Reports of Judgments and Decisions
1996-VI; Djavit An v. Turkey, no. 20652/92,
§§ 18-23, ECHR 2003 III). The Court finds no
particular circumstances in the instant case which would require it
to depart from its findings in the above-mentioned judgments.
- Accordingly,
the Court dismisses the Government's objection and concludes that the
matters complained of in the instant application fall within the
“jurisdiction” of Turkey within the meaning of Article 1
of the Convention and therefore entail the respondent State's
responsibility under the Convention (see, mutatis mutandis,
Djavit An, cited above, § 23).
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained that he had been kept in wretched conditions in
prison which had been overcrowded. He had also been kept in solitary
confinement and had had no means of communication with the outside
world. On 8 May 2007 special police forces had carried out an
operation in the prison and had allegedly ill-treated him. In respect
of these complaints he relied on Article 3 of the Convention which
provides 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 that the applicant had failed
to comply with the requirement to exhaust domestic remedies. The
domestic courts were best suited to hear such claims, examine
witnesses and consider and evaluate medical and other evidence. The
Government further argued that the complaints under Article 3 of the
Convention were manifestly ill founded.
- The applicant maintained that he had complied with the
obligation to exhaust domestic remedies. He had sent a letter to the
Sudanese Embassy in Ankara, numerous letters to a number of
newspapers and various “TRNC” authorities, including, in
particular, the Prime Minister, the Ministry of the Interior and the
prison administration. He and a number of inmates had also submitted
joint petitions to the prison administration at the Ministry of the
Interior on various dates.
- The Court does not deem it necessary to examine
whether the applicant complied with the obligation to exhaust
domestic remedies since it notes that the complaint is in any event
inadmissible as being manifestly ill-founded for the following
reason.
- The Court reiterates that, to fall within the scope of
Article 3 of the Convention, the alleged treatment must attain a
minimum level of severity (see Ireland v. the United Kingdom,
judgment of 18 January 1978, Series A no. 25, § 162).
In the present case there is no indication that the treatment
complained of reached the threshold of severity bringing the matter
within the scope of Article 3 of the Convention (see Panayiotis
Kyriacou Tsiakkourmas v. Turkey (dec.), no. 13320/02, 20 May
2008).
- It follows that this complaint should be rejected as
being manifestly ill-founded, pursuant to Article 35 §§ 3
and 4 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 5 § 2 OF THE
CONVENTION
- The
applicant maintained that, following his arrest by the police on
29 May 2001, he had not been promptly informed of the reasons
for his arrest, in violation of Article 5 § 2 of the Convention
which provides as follows:
“Everyone who is arrested shall be informed
promptly, in a language which he understands, of the reasons for his
arrest and of any charge against him.”
- The
Government contested that argument.
- The
Court observes that the applicant's police custody ended on 22 June
2001 (see paragraph 16 above) when he was brought before a judge and
charged. On that occasion there was an interpreter present. It is
clear therefore that by that date the applicant had been informed of
the matters which led to his prosecution. However, he did not lodge
his application with the Court until 14 June 2002. It does not
appear that he subsequently tried to use any domestic remedy in
respect of this complaint which could have stopped the running of the
six-month period. He thereby failed to observe the six-month rule
laid down in Article 35 § 1 of the Convention in respect of this
complaint. This aspect of the case must therefore be rejected
pursuant to Article 35 §§ 1 and 4 of the Convention
(see, mutatis mutandis, Ivan Vasilev v. Bulgaria, no.
48130/99, §§ 83-84, 12 April 2007; Čonka
v. Belgium, no. 51564/99, §§ 50-52, ECHR 2002 I).
IV. ALLEGED VIOLATIONS OF ARTICLE 6 OF THE CONVENTION
- The
applicant complained that he had not been provided with an
interpreter to enable him to understand the accusations against him.
Furthermore, the appeal proceedings had lasted an excessively long
time. Moreover, the presiding judge had not conducted the hearings in
an impartial manner and that the trial court had not adequately
examined his alibi. Finally, although the trial court had been unable
to establish who had actually committed the murder, it had convicted
both him and his co-accused and imposed the same sentence on both of
them. In respect of these complaints the applicant relied on Article
6 of the Convention which provides, in so far as relevant, as
follows:
“1. In the
determination of ... any criminal charge against him, everyone is
entitled to a fair ... hearing within a reasonable time by an
independent and impartial tribunal established by law...
3. Everyone charged with a criminal offence
has the following minimum rights: ...
(e) to have the free assistance of an interpreter
if he cannot understand or speak the language used in court.”
- The
Government contested those arguments.
A. Admissibility
- The
Government pointed to the fact that the application had been
introduced with the Court before the appeal was decided by the Court
of Appeal, and argued that the applicant had thus failed to comply
with the requirement to exhaust domestic remedies.
- The
applicant did not deal specifically with this issue other than to
dispute it in general terms.
- The
Court observes that the criminal proceedings were concluded on 2
March 2006, that is before the Court is called upon to pronounce on
the admissibility of the present case (see, mutatis mutandis,
Sağat, Bayram and Berk v. Turkey (dec.), no.
8036/02, 8 March 2007, and Yıldırım v. Turkey
(dec.), no. 40074/98, 30 March 2006). It follows therefore that
the Government's objection to the admissibility of the complaints
under Article 6 of the Convention must be dismissed.
- 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 length of the criminal
proceedings
- The
applicant complained that the length of the criminal proceedings
against him, in particular the appeal proceedings, had been in breach
of the reasonable time requirement of Article 6 § 1 of the
Convention.
- In
the opinion of the Government the delays in the appeal proceedings
were not attributable to them but to the applicant and his
co-accused.
- The
Court observes that the criminal proceedings against the applicant
began on 29 May 2001 when he was taken to the police station, and
were completed on 2 March 2006 when the Court of Appeal pronounced
its decision. They thus lasted for just over four years and nine
months before two levels of jurisdiction.
- The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case.
Particular regard must be had to the complexity of the case and the
conduct of the applicant and the relevant authorities (see, among
many other authorities, Pélissier and Sassi v. France
[GC], no. 25444/94, § 67, ECHR 1999-II).
- Although,
as pointed out above, the proceedings were completed in less than
five years, the Court cannot overlook the fact that a lengthy period
of four years elapsed between 22 March 2002 when the appeal was
lodged by the applicant, and 2 March 2006 when the Court of Appeal
rendered its decision.
- The
prolonged illness of the applicant's lawyer undoubtedly contributed
to the total length of the appeal proceedings. Nevertheless, it is
also to be observed that no justification was proffered by the
Government as to why the first appeal hearing was scheduled some two
years after the appeal had been lodged (see paragraphs 44-45 above).
Furthermore, contrary to what was submitted by the Government (see
paragraph 30 above), the hearing of 15 June 2005 was postponed until
21 September 2005, not because the applicant had turned up at the
Court of Appeal without a lawyer, but because one of the judges was
on holiday abroad (see paragraph 45 above). Moreover, the Court
cannot but note that after 21 September 2005 the appeal hearings
were postponed on seven more occasions (see paragraph 45 above).
- In
the absence of any explanation, these delays must be considered to be
attributable to a lack of diligence in the Court of Appeal's handling
of the proceedings.
- Having
regard to its case-law on the subject, the Court finds that the
length of the proceedings was excessive and failed to meet the
“reasonable time” requirement. There has accordingly been
a breach of Article 6 § 1 of the Convention.
2. Complaint concerning the applicant's right to an
interpreter
- The
applicant alleged that the police investigator Mr Z.A. had taken
advantage of his lack of knowledge of the Turkish language and had
recorded in the statements of 30 May and 2 June 2001 things that he
had never said during the questioning. When he had told Mr Z.A. that
he could not read the statements and refused to sign them, Mr Z.A.
had persuaded him by telling him that his lawyer could translate the
statements for him the following day. Nevertheless, Mr Z.A. had
subsequently not allowed the lawyer to do that. When Mr Z.A. drafted
the statements neither an interpreter nor the applicant's lawyer had
been present. Furthermore, Mr Z.A.'s handwriting was so
illegible that even a native Turkish speaker would have found it
difficult to read the statements.
- The
Government submitted that the applicant knew the Turkish language
quite well and had not requested an interpreter. If he had requested
an interpreter, he would have been provided with one. In any event,
an interpreter and a police officer who spoke Arabic had been present
when the applicant was questioned on 30 May 2001, but the applicant
had rejected their assistance.
- During
the trial an interpreter had been present in the court-room but the
applicant had given his testimony in Turkish.
- The
Court reiterates at the outset that the right guaranteed by Article 6
§ 3 (e) of the Convention to the free assistance of an
interpreter is not only applicable when making oral statements at
hearings in the course of a trial, but also to documentary material
and the pre-trial proceedings. This means that, to ensure a fair
trial, an accused who cannot understand or speak the language used in
court has the right to the free assistance of an interpreter for the
translation or interpretation of all those documents or statements in
the criminal proceedings which it is necessary for him or her in
order to understand or to have rendered into the court's language
(see Luedicke, Belkacem and Koç v. Germany, judgment of
28 November 1978, Series A no. 29, § 48).
- The
issue of a defendant's linguistic knowledge and the nature of the
offence with which the defendant is charged are vital for the Court's
examination of the complaints made under this provision (see Hermi
v. Italy, no. 18114/02, § 71, 28 June 2005 and the case
cited therein).
- In
the present case it is to be observed that serious accusations were
being levelled against the applicant when he was questioned at the
police station. Indeed, both the statement of 30 May and the
statement of 2 June 2001 were to become crucial for his case and to
be heavily relied on by the trial court in convicting him.
- Nevertheless,
despite their importance for the domestic proceedings, neither
statement makes any mention of an interpreter having been present
when the applicant was questioned or the applicant having rejected
that interpreter's assistance, as claimed by the Government.
- It
is also crucial to note that when these statements were drafted by
the police investigator Mr Z.A., the applicant was not accompanied by
a lawyer. It follows, therefore, that the applicant was questioned
and his prejudicial statements were drafted when he was deprived of
an important Convention safeguard.
- The
Court notes that the applicant is not a native speaker of the Turkish
language. However, as submitted by the Government and as accepted by
the applicant, he did speak some Turkish. Nevertheless, it is equally
important to note the applicant's undisputed claim that he was unable
to read Turkish texts, especially if they were not typed (see
paragraphs 41-42 above). In this connection the Court finds that the
handwritten statements in question are indeed difficult to decipher,
even by native Turkish speakers.
- In
the Court's opinion, the verification of the applicant's need for
interpretation facilities at the time of his questioning by the
police should have been a matter for the domestic courts to
adequately examine with a view to reassuring themselves that the
absence of an interpreter in police custody would not have prejudiced
the applicant's right to a fair trial (see, mutatis mutandis,
Cuscani v. the United Kingdom, no. 32771/96, § 38,
24 September 2002). To that end, sufficient indication had been
given to the domestic courts by the applicant and his lawyers as to
his inability to read Turkish texts. In this connection it must also
be noted that the applicant, when assisted by an interpreter on 22
June 2001, stated that this was the first time he had heard the
accusations against him.
- Having regard to the above considerations, the Court
concludes that there has been a violation of Article 6 § 1 of
the Convention taken in conjunction with Article 6 § 3 (e).
3. Remaining complaints under Article 6 of the
Convention
- The
applicant also complained that the presiding judge had not conducted
the hearings in an impartial manner. Furthermore, the trial court had
not adequately examined his alibi. Moreover, although the trial court
had been unable to establish who had actually committed the murder,
it had convicted both him and his co-accused and imposed the same
sentence on both of them.
- Having
regard to its finding under Article 6 § 1 of the Convention
taken in conjunction with 6 § 3 (e) (see paragraph 84 above),
the Court considers that it is not necessary to examine these
complaints separately.
V. 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 vague sums in respect of, inter alia, his
loss of earnings, his properties and cars which had apparently been
repossessed after his detention in prison. He also asked that rent
paid by his family while he was detained in prison, tax arrears owed
to the domestic authorities and loans he had to take out to pay for
his family's living expenses also be compensated. The applicant
submitted that his total losses in respect of the above had exceeded
1,000,000 euros (EUR). He also asked the Court, without specifying
the amount, to award him non-pecuniary damage.
- The
Government contested the claims and argued that they were irrelevant
to the case.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim.
However, it awards the applicant EUR 5,000 in respect of
non-pecuniary damage.
- The
Court 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 (see Saldüz
v. Turkey [GC], no. 36391/02, § 72,
27 November 2008, and the cases cited therein).
The Court finds that this principle applies in the present case as
well. 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 he so
request (see, mutatis mutandis,
Gençel v. Turkey,
no. 53431/99, § 27, 23 October 2003).
B. Costs and expenses
- The
applicant claimed 12,500 US dollars in respect of the fees of two of
his lawyers who represented him before the domestic courts. In
support of these claims he referred to the verbatim records of the
hearings before the trial court. According to those records,
secretaries working for the two lawyers told the trial court that the
applicant had paid 12,500 US dollars to the two lawyers to represent
him before the domestic courts. The secretaries also confirmed that
receipts had been given to the applicant in respect of these
payments. The applicant did not submit those receipts to the Court.
- The
applicant did not make a claim for his costs and expenses incurred
before the Court. Instead, he submitted that he had asked the Court
to grant him legal aid in respect of the lawyer who represented him
in the proceedings before the Court.
- The
Government contested the claims and argued that no receipts had been
submitted in support of the claims for the fees of his lawyers who
had represented him before the domestic courts.
- The
Court would wish to clarify at the outset that, on 7 May 2008 the
applicant, with the assistance of his lawyer, requested that he be
granted legal aid under the Council of Europe's legal aid scheme. On
20 May 2008 the Registry provided the lawyer with the necessary
documentation and asked him to fill in and return the necessary forms
to the Court by 16 June 2008. No further correspondence has been
received from the lawyer or the applicant since that date.
- According
to the Court's case-law, an applicant is entitled to the
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, regard being had to
the information in its possession – in particular the verbatim
records referred to in paragraph 92 – and the above criteria,
the Court considers it reasonable to award the sum of EUR 2,000
covering costs under all heads.
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 admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention on account of the excessive length of
the criminal proceedings;
- Holds that there has been a violation of Article
6 § 1 of the Convention in conjunction with Article 6 § 3
(e);
- Holds that there is no need to examine
separately the remaining complaints under Article 6 of the
Convention;
- Holds that
(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, the following
amounts to be converted into the national currency of the respondent
State at the rate applicable at the date of settlement:
(i) EUR
5,000 (five thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage; and
(ii) EUR
2,000 (two 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;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 13 January 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens
Registrar President
