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SECOND
SECTION
CASE OF MEHMET ŞERIF ÖNER v. TURKEY
(Application
no. 50356/08)
JUDGMENT
STRASBOURG
13
September 2011
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 Mehmet Şerif Öner v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Danutė Jočienė,
David
Thór Björgvinsson,
Dragoljub Popović,
András
Sajó,
Işıl Karakaş,
Guido
Raimondi, judges,
and Stanley Naismith,
Section Registrar,
Having
deliberated in private on 23 August 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 50356/08) 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 Mehmet
Şerif Öner (“the applicant”), on 11 September
2008.
- The
applicant was represented by Ms T. Aslan, a lawyer practising in
İzmir. The Turkish Government (“the Government”)
were represented by their Agent.
- On
2 February 2010 the Court declared the application partly
inadmissible and decided to communicate the complaints concerning the
lack of legal assistance to the applicant during his police custody
and the impartiality of the president of the trial court which
convicted the applicant to the Government. It also decided to rule on
the admissibility and merits of the application at the same time
(Article 29 § 1).
THE FACTS
A. Background to the case
- On
21 December 1993 the Public Prosecutor at the Izmir Security Court
filed an indictment against four accused persons (H.N., N.S., M.Ş.Ç.,
A.K.) charging them under Article 125 of the former Criminal Code
with carrying out activities with the aim of bringing about the
secession of part of the national territory. During their
interrogation by the police and the public prosecutor, all of the
accused persons stated that they had acted upon the instructions of
Mr Mehmet Şerif Öner.
Subsequently, during the trial before the Izmir State Security Court,
they denied the charges against them and retracted their previous
statements. On 24 February 1998 the Izmir State Security Court found
the accused guilty as charged and sentenced them to life
imprisonment. In the judgment the court, presided by Judge G.D.C.,
found it established that the accused had acted upon the instructions
of Mr Mehmet Şerif Öner, whose code name was
“Kahraman” and who was active in the Izmir region
for the illegal organisation the PKK (Workers’ Party of
Kurdistan). This judgment became final on 29 July 1998.
B. Criminal proceedings against the applicant
- On
13 May 2002 the applicant was taken into custody in Batman on
suspicion of membership of the PKK. When arrested, he was in
possession of a fake identity card.
- On
16 May 2002 the applicant was transferred to the Anti-Terrorism
Branch of the Izmir Security Directorate. The same day, he was
interrogated by the police in the absence of a lawyer. The applicant
denied all the charges against him. He stated that he was using a
fake identity card because he had escaped from prison in 1992.
- During
his police custody, the applicant took part in an identification
parade. The complainants, Mr M.Ç., Mr N.Ş. and Mr F.B.,
identified him as the person who had been involved in the respective
armed robberies that had taken place in 1993.
- On
17 May 2002 the applicant was further interrogated before the public
prosecutor and the investigating judge respectively, still in the
absence of a lawyer. During the questionings, the applicant denied
his involvement in the PKK. He explained that in the past he had been
involved in an armed robbery and had been sentenced to twenty years’
prison. He stated that after his escape from prison, he started using
fake identity cards. When his questioning was over, the investigating
judge remanded the applicant in custody.
- On
5 June 2002 the Public Prosecutor at the Izmir State Security Court
filed an indictment with that court, accusing the applicant of
engaging in illegal activities with the aim of bringing about the
secession of part of the national territory, an offence under Article
125 of the former Criminal Code.
- During
the hearing held on 3 September 2002 the applicant’s lawyer
requested the President of the Court, Judge G.D.C., to withdraw from
the case, stating that he had also sat as a member of the court which
had delivered the judgment of 24 February 1998, in which the
applicant was referred to as a member of the PKK. His request was
rejected.
- On
15 July 2003 the Izmir State Security Court found the applicant
guilty as charged and sentenced him to life imprisonment under
Article 125 of the former Criminal Code. In its judgment, the
court found it established that the applicant had participated in the
armed robberies as alleged and taken part in the activities carried
out for the purpose of bringing about the secession of part of the
national territory. In delivering its decision, the first instance
court relied on the police statements of the four accused persons who
had been convicted by the Izmir State Security Court on 24 February
1998 and the identification parade records in which the intervening
parties had identified the applicant as the person who had been
involved in the respective armed robberies.
- On
24 February 2004 the Court of Cassation quashed the judgment of the
first instance court on the ground that the intervening parties who
were eye-witnesses to the armed robberies should be summoned to the
court to confront the applicant to eliminate any doubt.
- The
case resumed before the Izmir State Security Court. In accordance
with the decision of the Court of Cassation, the first instance court
summoned three intervening parties to give evidence. Before the
court, Mr Z.Ö. and Mr N.Ş. stated that as a long time had
passed since 1993, they were no longer able to recognise the
applicant. Mr M.Ç. however identified the applicant as the
person who had stolen his car. As regards the remaining intervening
parties, who could not be summoned to the Izmir State Security Court,
rogatory courts heard evidence from them. In their statements, Mr
F.A., Mr H.A. and Mr Z.A. explained that due to the long time that
had elapsed they were not able to recognise the applicant.
- In
the meantime, by Law no. 5190 of 16 June 2004, published in the
Official Gazette on 30 June 2004, the State Security Courts were
abolished. The case against the applicant was accordingly transferred
to the Izmir Assize Court. Subsequently, on 12 October 2004 the new
Criminal Code (no. 5237) was published in the Official Gazette.
- On
10 November 2005 the Izmir Assize Court once again found the
applicant guilty as charged and sentenced him to aggravated life
imprisonment under Article 302 of the new Criminal Code. Among other
evidence, the court based itself on the fact that the applicant had
been identified by the intervening parties during his police custody.
- On
9 May 2006 the Court of Cassation quashed the judgment of the first
instance court on procedural grounds, holding that as Article 302 of
the new Criminal Code provided a heavier sentence for the offence
committed by the applicant, the provisions of the former criminal
code should have been applied in his case.
- The
case was once again remitted to the Izmir Assize Court, which decided
on 29 December 2006 to sentence the applicant to life imprisonment
under Article 125 of the former Criminal Code. On 11 March 2008 the
Court of Cassation upheld this judgment.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant alleged that his defence rights had been violated as he had
been denied access to a lawyer during his police custody. In this
respect, he relied on Article 6 § 3 (c) of the Convention. The
applicant further complained under Article 6 § 1 of the
Convention that the president of the first-instance court which tried
and convicted him could not be considered as impartial since he had
also been a member of the court which had convicted the other
co-accused in 1998 and had a preconceived idea that the applicant was
a member of the PKK.
- The
Government contested the allegations. In particular, they stated that
the restriction imposed on the applicant’s access to a lawyer
during his police custody had not infringed his right to a fair trial
under Article 6 of the Convention.
- The
Court considers that the remaining part of this application is not
manifestly ill-founded within the meaning of Article 35 § 3
of the Convention. It further notes that it is not inadmissible on
any other grounds. It must therefore be declared admissible.
- As regards the complaint concerning access to a lawyer
during police custody, the Court reiterates the basic principles laid
down in the Salduz judgment (see Salduz v. Turkey [GC],
no. 36391/02, §§ 50-55, 27 November 2008). It
notes that the present case is similar to the Salduz case
since at the time when the applicant was taken into police custody,
namely in May 2002, the applicant’s right of access to a lawyer
was restricted pursuant to Section 31 of Law no. 3842, as he was
accused of committing an offence falling within the jurisdiction of
the State Security Courts. In this connection, the Court observes
that although the applicant did not have access to a lawyer during
his police custody, he repeatedly denied the charges against him
during his interrogation by the police, the public prosecutor and the
investigating judge respectively. Consequently, he did not make any
self-incriminating statements. However, the Court finds it important
to recall once again that the investigation stage is of crucial
importance in criminal proceedings as the evidence obtained at this
stage determines the framework in which the offence charged will be
considered (see, Salduz, cited above, § 54, and Dayanan
v. Turkey, no. 7377/03, § 32, 13 October 2009). In this
regard, the Court observes that when the applicant was in police
custody, he took part in an identification parade and was identified
by the intervening parties as the person who had taken part in the
respective armed robberies which had occurred in 1993. The Court
further notes that in convicting the applicant the trial court relied
heavily on the result of this identification parade. Thus, the
applicant was undoubtedly affected by the restrictions on his access
to a lawyer during the preliminary investigation. Neither the
assistance provided subsequently by a lawyer nor the adversarial
nature of the ensuing proceedings could cure the defects which had
occurred during the applicant’s custody period.
- Having
regard to the foregoing and bearing in mind that the restriction
imposed on the applicant was systematic according to the domestic
legislation in force at the time, the Court finds no particular
circumstances which would require it to depart from its findings in
the aforementioned Salduz judgment. There has therefore been a
violation of Article 6 § 3 (c) of the Convention in conjunction
with Article 6 § 1 in the present case.
- Having
regard to its finding of a violation of Article 6 § 1 in
conjunction with Article 6 § 3 (c) of the Convention above, the
Court considers that it is unnecessary to examine the further
complaint raised by the applicant regarding the impartiality of the
president of the trial court that convicted him.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- The applicant claimed 20,000
euros (EUR) in respect of pecuniary damage and EUR 30,000 in respect
of non-pecuniary damage.
- The
Government contested these claims.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. In
respect of non-pecuniary damage, ruling on an equitable basis, it
awards the applicant EUR 1,800.
- The
Court further considers that the most appropriate form of redress
would be the re-trial 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).
- Referring
to the Izmir Bar Association’s scale of fees, the
applicant’s representative also claimed EUR 3,500 covering 198
hours’ of legal work, spent in the domestic proceedings and the
presentation of this case before the Court. She also claimed EUR 650
for costs and expenses, without submitting any invoice.
-
The Government contested the claims.
- 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 were
reasonable as to quantum. In the present case, regard being had to
the documents in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 1,000 to the
applicant under this head.
- Finally,
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 remainder of the application
admissible;
- 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 to the applicant while in police custody;
- Holds that it is not necessary to consider the
applicant’s remaining complaint raised under Article 6 § 1
of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months of
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following amounts, to
be converted into Turkish liras at the rate applicable at the date of
settlement:
(i) EUR
1,800 (one thousand eight hundred 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;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 13 September 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Françoise Tulkens
Registrar President
