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SECOND
SECTION
CASE OF ELAWA v. TURKEY
(Application
no. 36772/02)
JUDGMENT
STRASBOURG
25 January
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 Elawa v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Ireneu Cabral Barreto,
Danutė
Jočienė,
Dragoljub Popović,
Işıl
Karakaş,
Kristina Pardalos,
Guido
Raimondi, judges,
and Stanley Naismith,
Section Registrar,
Having
deliberated in private on 4 January 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 36772/02) 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 an Egyptian national, Mr Mohamed Elawa (“the
applicant”), on 19 August 2002.
- The
applicant was represented by Mr Barış Mamalı and
Mr Yusuf Tekinay, lawyers practising in the “Turkish
Republic of Northern Cyprus” (the “TRNC”). The
Turkish Government (“the Government”) were represented by
their Agent.
- The
applicant alleged, in particular, that the criminal proceedings
brought against him in the TRNC had been in breach of the requirement
of fairness contained in Article 6 of the Convention and that he had
not been given the assistance of a lawyer whilst he had been detained
in police custody.
- On
23 March 2009 the President of the Second Section decided to give
notice of the application to the Government. It was also decided to
rule on the admissibility and merits of the application at the same
time (Article 29 § 1).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1977 and lives in Egypt.
- The
applicant moved from Egypt to the TRNC on 14 February 2001 to
study law at a university. He did not speak Turkish. With the help of
another individual, Mr Yassir Faathelrahman Amer, the applicant
rented a flat and started living in the TRNC. He also started working
for Mr Amer in the latter's music business.
- In
the evening of 29 May 2001 a businessman was found dead in his office
in the TRNC. His throat had been slit and he had also sustained a
number of injuries caused by blows to his head. On 30 May 2001 the
applicant was arrested on suspicion of having killed the businessman
and was placed in police custody, where he remained until he was
charged with the offence of homicide and transferred to a prison on
22 June 2001. Mr Amer was also arrested in respect of the
same offence and kept in police custody.
- According
to the documents submitted by the parties, in the course of his
detention in police custody the applicant was questioned by police
officers on 3 June, 9 June and 22 June 2001 in the presence of an
interpreter. On 22 June 2001 he was charged with the offence of
homicide and his pre-trial detention in prison was ordered by a
judge. According to three handwritten statements, no lawyer was
present on the three occasions that the applicant was questioned by
the police.
- The
applicant claims that while in police custody he asked to be
represented by a lawyer but police officers laughed at him and told
him that “lawyers charge 50,000 US dollars, go and find 50,000
dollars”. Moreover, his requests to contact the Egyptian
Embassy in Ankara were met with the angry refusals of a police chief.
- According
to the applicant, during his questioning in police custody he had
been ill-treated by both police officers and the interpreter. He also
claims that he had subsequently been encouraged by police officers –
through being given privileges such as adequate food, clothing and
sanitary facilities – to make statements implicating his
co-defendant Mr Amer in the killing. Approximately twenty statements
had been prepared by the police and he had been forced to sign them
to avoid further ill-treatment. As he did not speak Turkish, he had
not been able to take cognisance of their contents. In any event, the
statements had been handwritten and illegible. Two of these
statements had subsequently been dated “3 June 2001” and
“9 June 2001” (see paragraph 8 above) and used
against him at trial.
- During
a remand hearing held on 11 June 2001 a lawyer was present in the
courtroom. According to the applicant, however, he had not been
advised about the appointment of that lawyer and, in any event, he
had not authorised that lawyer's representation of him. During remand
hearings held on 31 May, 3 June and 19 June 2001 no lawyer was
present. The applicant claims that during one of the remand hearings
he had unsuccessfully repeated his request to be represented by a
lawyer.
- Subsequently,
both the applicant and Mr Amer were tried by the Lefkoşa Assize
Court (“the trial court”). In the course of the trial the
applicant denied the accuracy of the statements signed by him in
police custody. On 4 March 2002 the applicant and Mr Amer were found
guilty of the offence of manslaughter and thirteen other charges.
They were sentenced to life imprisonment.
In convicting the applicant the trial court had regard, amongst other
things, to the three statements made by the applicant to the police
in June 2001.
- The
applicant appealed against the judgment on 22 March 2002. In the
course of the hearings held by the Court of Appeal, the applicant's
legal representative argued that during the trial there had been a
number of shortcomings and inconsistencies which had not been
eliminated by the trial court and which had meant that the
applicant's conviction was unsafe. The legal representative's
arguments related, notably, to statements made by a number of police
officers during the trial, according to which at 6.00 a.m. on 3
June 2001 the applicant had been taken to a number of locations by
police officers in order to search for the objects used in the
killing. Nevertheless, according to the handwritten statements
referred to above (see paragraph 8), the applicant had
supposedly been questioned between 6.15 a.m. and 7.10 a.m. on
the same day in a police station some distance away. The legal
representative pointed out that his client could not have been in two
different places at the same time. He also argued the applicant had
not known the dates on which he had been questioned, and that on
5 June 2001 the police officers had simply asked the applicant
to sign a number of pre-prepared statements.
- 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 on 2 March 2006.
- The
applicant completed the service of his prison sentence on 19 June
2009 and was subsequently deported to Egypt.
- According
to the applicant, the prison where he had served his sentence had
been overcrowded, sanitary conditions had been inadequate and the
quality of the food had been poor. On a number of occasions he had
been detained in solitary confinement and had been beaten up by
members of the security forces.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained that the ill-treatment to which he had been
subjected in police custody in 2001 and the conditions of his
detention in prison had been 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 those arguments.
- As
regards the alleged ill-treatment of the applicant in police custody
in 2001, the Court observes, firstly, that the applicant did not
bring these complaints to the attention of the national authorities.
Even assuming that there were no domestic remedies to be exhausted in
this respect, the Court observes that he did not apply to the Court
within six-months from the date of his transfer from police custody
to pre-trial detention on 22 June 2001 (see paragraph 8 above). 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.
- Concerning
the applicant's complaints relating to the conditions of his
detention, 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,
18 January 1978, § 162, Series A no. 25). 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, and
Amer, cited in the text, §§ 55-56).
- It
follows that this complaint should be rejected as being manifestly
ill-founded, pursuant to Article 35 §§ 3 and 4 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 5 § 2 OF THE
CONVENTION
- Under
Article 5 § 2 of the Convention the applicant maintained that,
following his arrest by the police on 30 May 2001, he had not been
promptly informed of the reasons for his arrest. Article 5 § 2
of the Convention 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 8 above) when he was brought before a judge and
charged. However, he did not lodge his application with the Court
until 14 August 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 Amer, cited in the text, § 59
and the cases cited therein).
III. ALLEGED VIOLATIONS OF ARTICLE 6 OF THE CONVENTION
- The
applicant complained that the trial had not been conducted in a fair
and impartial manner and that his defence arguments had not been
taken into account by the trial court. He further complained that the
appeal proceedings had lasted for an inordinately long time. He also
complained that the interpreter he had been provided with by the
police had not been impartial and that the interpreter who had
assisted him in the subsequent trial had not been adequately
qualified. Finally, the applicant complained that he had not been
provided with legal assistance at the initial stages of the criminal
proceedings. In respect of these complaints the applicant relied on
Articles 6 § 1 and 6 § 3 of the
Convention, which provide, 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: ...
...
(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;
...
(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
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 proceedings had been complex and
had thus required detailed examinations to be undertaken by the Court
of Appeal. They also argued that the delays in the appeal proceedings
had not been attributable to the Government but rather to the
applicant and his co-accused.
- The
Court observes that the criminal proceedings against the applicant
began on 30 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 at 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
Court has already considered the length of the same criminal and
appeal proceedings in its judgment in the above-mentioned case of
Amer, introduced by the applicant's co-defendant, and found
that they had been in breach of the reasonable time requirement of
Article 6 § 1 of the Convention (Amer, cited in the text,
§ 73). It has examined the present application and the parties'
submissions. It considers that the Government have not advanced any
arguments requiring the Court to depart from its findings in the Amer
judgment.
- In
light of the foregoing, 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 lack of legal assistance
- The
applicant complained that he had not been provided with legal
assistance at the initial stages of the criminal proceedings.
- The
Government submitted that during his time in police custody between
30 May and 22 June 2001 the applicant had been represented by a
lawyer. That lawyer had attended the remand hearing held on 11
June 2001 and had visited the applicant in police custody on 14
June 2001.
- The
Government pointed out that in the TRNC it was the constitutional
right of everyone charged with an offence to be given free legal
assistance. It was also standard procedure to assign free legal
assistance in serious cases, such as a murder or a manslaughter
trial, even if the person charged did not himself appoint a lawyer to
represent him. Nevertheless, the applicant had not asked the police
to appoint a lawyer for him whilst he was being questioned by them.
- The
Court reiterates that even if the primary purpose of Article 6
of the Convention as far as criminal proceedings are concerned is to
ensure a fair trial by a “tribunal” competent to
determine “any criminal charge”, it does not follow that
the Article has no application to pre-trial proceedings. Thus,
Article 6 of the Convention – especially paragraph 3 –
may be relevant before a case is sent for trial if and so far as the
fairness of the trial is likely to be seriously prejudiced by an
initial failure to comply with its provisions. The right set out in
paragraph 3 (c) of Article 6 of the Convention is one element,
amongst others, of the concept of a fair trial in criminal
proceedings contained in paragraph 1. The rights of the defence will
in principle be irretrievably prejudiced when incriminating
statements made during police interrogation without access to a
lawyer are used for a conviction (Salduz v. Turkey [GC], no.
36391/02, §§ 50 and 55, 27 November 2008; see also
paragraphs 51-54 of the same judgment for a review of relevant
principles applicable to the right to legal assistance).
- The
Court further reiterates that neither the letter nor the spirit of
Article 6 of the Convention prevent a person from waiving of his
own free will, either expressly or tacitly, the entitlement to the
guarantees of a fair trial (see Sejdovic v. Italy [GC], no.
56581/00, § 86, ECHR 2006 II). In this connection, it must
be remembered that the Convention is designed to “guarantee not
rights that are theoretical or illusory but rights that are practical
and effective” (see Yunus Aktaş and Others v. Turkey,
no. 24744/03, § 43, 20 October
2009). Furthermore, a waiver of the right of entitlement to the
guarantees of a fair trial must be established in an unequivocal
manner and be attended by minimum safeguards commensurate to its
importance (see, Salduz, cited above, § 59).
- In
the present case serious accusations were levelled against the
applicant when he was questioned at the police station. Indeed, the
statements of 3, 9 and 22 June 2001 were to become crucial for his
case and to be relied on by the trial court in convicting him,
notwithstanding the fact that both during the trial and the appeal
proceedings the applicant strenuously denied the accuracy of those
statements (see paragraphs 12 and 13 above).
- Nevertheless,
despite their importance for the domestic proceedings, none of the
statements make any mention of the applicant renouncing his
constitutional right to legal assistance whilst he was being
questioned, as claimed by the Government. Given that the right to
legal assistance is a constitutional right in the TRNC and that the
normal practice is to assign free legal assistance in serious cases –
such as a murder or a manslaughter trial – even if the person
charged does not himself appoint a lawyer to represent him (see
paragraph 37 above), the Court considers the absence of any entry in
the police statements concerning the issue of legal assistance to be
inexplicable.
- The
Court would also point out that the applicant is not a native speaker
of the Turkish language. In its opinion, even though he was assisted
by an interpreter – whose independence and impartiality is
questioned by the applicant (see paragraph 10 above) – during
the questioning, the applicant's lack of Turkish language ability and
knowledge of local legal procedures should have made it all the more
important for the authorities to ensure his access to a lawyer (see,
mutatis mutandis, Sejdovic, cited above, §§
54 and 103).
- It
follows, therefore, that the applicant was questioned and prejudicial
statements were drawn up when he was deprived of an important
Convention safeguard. Thus, even though a lawyer was apparently
appointed to represent him at one of the remand hearings (see
paragraph 11 above) and though he was represented at trial and
on appeal by a lawyer of his own choice, the lack of access to a
lawyer while he was being questioned by the police irretrievably
affected his defence rights.
- In
view of the above, the Court concludes that there has been a
violation of Article 6 § 3 (c) of the Convention in conjunction
with Article 6 § 1 in the present case.
3. Remaining complaints under Article 6 of the
Convention
- Lastly,
the applicant complained that the trial had not been conducted in a
fair and impartial manner and that his defence arguments had not been
taken into account by the trial court. He also complained that the
interpreter provided by the police had not been impartial and that
the interpreter who assisted him in the subsequent trial had not been
adequately qualified.
- Having
regard to its finding under Article 6 § 3 (c) of the Convention
taken in conjunction with 6 § 1 (see paragraph 44 above), the
Court considers that it is not necessary to examine these complaints
separately.
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 1,000,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government considered this sum to be exorbitant and exaggerated, and
submitted that the finding of a violation should be regarded as
sufficient just satisfaction.
- The
Court, taking into account the awards made in comparable cases (see
Amer, cited in the text, § 90), and deciding on an
equitable basis, 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 Salduz,
cited above, § 2, and the cases cited therein). The Court
finds that this principle also applies in the present case.
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 Amer, cited in the text, § 91).
B. Costs and expenses
- The
applicant claimed that he had paid EUR 5,000 to the lawyer who had
represented him in the criminal proceedings in the TRNC. No
documentary evidence was submitted in respect of this claim.
Furthermore, the applicant asked the Court to make an award for
“costs of the case”, but did not specify a specific sum
and did not submit any information or documents on which a
calculation of his costs and expenses could be based.
- The
Government drew the Court's attention to the lack of any documents in
support of the applicant's claims.
- 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. Regard being had to the above criteria and
the applicant's failure to submit any quantified claim or documents,
the Court makes no award under this head.
C. Default interest
- The
Court considers it appropriate that 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 § 3 (c) of the Convention in conjunction with Article 6 §
1;
- Holds that there is no need to examine
separately the remaining complaints under Article 6 of the
Convention;
- 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 5,000 (five
thousand euros), plus any tax that may be chargeable to the
applicant, in respect of non-pecuniary damage, to be converted into
Turkish liras 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 25 January 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Françoise Tulkens
Registrar President
