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SECOND SECTION
CASE OF ŞAMAN v. TURKEY
(Application
no. 35292/05)
JUDGMENT
STRASBOURG
5 April 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
Şaman v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Danutė Jočienė,
Ireneu
Cabral Barreto,
David Thór Björgvinsson,
Dragoljub
Popović,
András Sajó,
Işıl
Karakaş, judges,
and Stanley Naismith,
Section Registrar,
Having
deliberated in private on 15 March 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 35292/05) 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, Ms Sultan Şaman (“the
applicant”), on 1 September 2005.
- The
applicant was represented by Mr Z. Değirmenci, a lawyer
practising in Izmir. The Turkish Government (“the Government”)
were represented by their Agent.
- On
6 October 2009 the Court declared the application partly inadmissible
and decided to communicate the complaint concerning the fairness of
the criminal proceedings under Article 6 § 3 (c) and (e) of the
Convention in conjunction with Article 6 § 1 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
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1974 and at the time of lodging her application
was serving a prison sentence in Buca Prison.
- On 19 February 2004 the applicant was taken into police
custody by police officers from the Denizli Security Directorate,
upon intelligence reports that she was a member of the illegal
organisation PKK/KONGRA GEL (the Kurdistan Workers’
Party). When she was arrested, the applicant was in possession of a
fake identity card.
- On
the same day the applicant was examined by a doctor, who noted that
there was no sign of ill-treatment on her body. The applicant was
subsequently taken to the Denizli Security Directorate for
interrogation.
- According
to a form dated 19 February 2004 which explained an arrested person’s
rights, the applicant was reminded of her right to remain silent and
was informed that she could request the assistance of a lawyer. The
applicant marked this form with her fingerprint and stated that she
did not want to be represented by a lawyer. Subsequently, a police
officer prepared a further report, in which it was stated that
although the applicant had been reminded of her right to legal
assistance she had expressed her wish to defend herself in person.
The applicant marked this report with her fingerprint as well.
- On
20 February 2004 the applicant was questioned by the police in the
absence of a lawyer. Before the questioning commenced the applicant
was once again reminded of her right to have legal assistance, but
she refused. In her police statement the applicant gave a detailed
account of her involvement in the illegal organisation.
- On
20 and 21 February 2004 respectively, the applicant was examined by a
medical doctor. The medical reports indicated that there was no sign
of ill-treatment on her body.
- On
21 February 2004 the applicant was taken before the public
prosecutor. During her questioning, the applicant was represented by
a lawyer, Mr A.O. from the Denizli Bar Association, and she availed
herself of her right to remain silent. The prosecutor questioned the
applicant about the fake identity card that had been found on her
during her arrest and the applicant accepted that she had been using
a fake identity paper. The lawyer left the public prosecutor’s
office without signing the applicant’s statement, stating that
although the applicant had expressed her wish to remain silent, the
prosecutor had continued asking questions.
- The same day, the applicant was questioned by the
investigating judge, again in the absence of a lawyer. Before the
judge, the applicant retracted her police statement, stating that it
had been taken under duress. When asked about her involvement in the
illegal organisation, the applicant accepted that when she was a
teenager she had joined the PKK and moved to Iraq. She denied however
having taken part in any terrorist activity. She stated that she had
come back to Turkey to benefit from the Reintegration of Offenders
into Society Act (Law no. 4959). After the questioning was over, the
investigating judge remanded the applicant in custody.
- On
8 March 2004 the public prosecutor at the Izmir State Security Court
filed an indictment with that court, accusing the applicant of
membership of an illegal organisation, an offence under Article 168
of the former Criminal Code and Section 5 of the Prevention of
Terrorism Act (Law no. 3713).
- The proceedings commenced before the Izmir State
Security Court and during the proceedings the applicant was
represented by a lawyer. At the request of the applicant, the State
Security Court gave permission to the applicant to have the
assistance of an interpreter. In its decision the first instance
court noted that the applicant was capable of expressing herself in
Turkish; however, in order not to hinder her right to defence and to
comply with Article 6 § 3 of the Convention, she was given leave
to use an interpreter.
- In
her defence submissions before the Izmir State Security Court, the
applicant retracted the statements she had made during the
preliminary investigation stage. She alleged that she had been forced
to fingerprint her statement. According to the applicant, as she was
illiterate, she could not understand the content of the document. She
went on to deny the accusations against her and explained that when
she was a teenager she had escaped to Iraq for family reasons and
that she had stayed in a refugee camp there.
- On
1 October 2004, the applicant’s representative brought to the
attention of the Izmir State Security Court that the applicant, being
of Kurdish origin, had a limited knowledge of Turkish and that during
her police custody she had not had the assistance of a lawyer or an
interpreter.
- During
the trial, the Izmir State Security Court took into consideration the
police statements of three people who had also been charged with
membership of the PKK. These three people testified that the
applicant was a member of the PKK.
- In
the meantime, Law no. 5190 of 16 June 2004, published in the Official
Gazette on 30 June 2004, abolished State Security Courts. The
case against the applicant was therefore transferred to the Izmir
Assize Court.
- On
26 October 2004 the Izmir Assize Court found the applicant guilty as
charged and sentenced her to twelve years and six months’
imprisonment. In convicting her, the court had regard to the
applicant’s police statement and the statements of three
witnesses who had confirmed that the applicant was a member of the
PKK.
- The
applicant appealed. In her appeal, she alleged that her right to
legal assistance during police custody had been breached in so far as
she had been denied the assistance of a lawyer.
- On
14 March 2005 the Court of Cassation upheld the judgment of the
first-instance court.
- On
13 June 2005 the Izmir Assize Court re-examined the case in the light
of the new Criminal Procedure Code which entered into force in 2005.
It found the applicant guilty as charged but reduced her sentence to
six years and three months’ imprisonment.
II. RELEVANT DOMESTIC LAW
- A
description of the relevant domestic law concerning the right of
access to a lawyer may be found in Salduz v. Turkey ([GC]
no. 36391/02, §§ 27 31, 27 November 2008).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION ON
ACCOUNT OF THE LACK OF ACCESS TO A LAWYER AND AN INTERPRETER
- The
applicant complained that, during her custody period her defence
rights had been violated on account of the lack of access to a lawyer
and an interpreter. Relying on Article 6 § 3 (c) and (e) of the
Convention, the applicant stated that the lack of access to a lawyer
or interpreter during her questioning by the police, the public
prosecutor and the investigating judge respectively had hindered her
defence rights, as she was illiterate and had a poor knowledge of the
Turkish language.
The
relevant provisions, in so far as relevant, read:
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.”
...
(e) to have the free assistance of an
interpreter if he cannot understand or speak the language used in
court.”
A. Admissibility
- The
Government maintained that the applicant had not exhausted domestic
remedies as required by Article 35 § 1 of the Convention, since
at no stage of the proceedings had she relied on the fact that she
had been deprived of her right to legal assistance and an interpreter
during police custody.
- In
the present case, the Court observes from the documents in the case
file that in her defence submissions dated 1 October 2004, the
applicant’s representative brought to the attention of the
Izmir State Security Court that the applicant, being of Kurdish
origin, had a poor knowledge of Turkish and that while she was in
police custody she had not had the assistance of a lawyer or an
interpreter. As a result, the Court considers that the applicant can
be considered to have exhausted the domestic remedies in compliance
with Article 35 § 1 of the Convention. Consequently, it rejects
the Government’s preliminary objection.
- The Court notes that this part of the 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.
B. Merits
- The
applicant reiterated that she was of Kurdish origin and illiterate,
and that she had left Turkey when she was twelve years old. She
therefore stated that she could not understand Turkish well enough
and that her defence rights had been violated during her police
custody as she was deprived of the assistance of a lawyer and an
interpreter.
- The
Government submitted that the applicant’s access to a lawyer
had not been hindered at any stage of the criminal proceedings. They
maintained that before each questioning the applicant had been
reminded of her rights as an accused, including her right to be
assisted by a lawyer. They drew the Court’s attention to the
fact that the applicant had refused legal assistance and that this
had been confirmed by the reports which had been fingerprinted by the
applicant.
- The
Court observes that the applicant’s complaint that her defence
rights were violated is twofold, raising issues of access to a lawyer
and an interpreter during her police custody. The Court will examine
these complaints together, as they are closely linked.
- The
Court reiterates that, even if the primary purpose of Article 6, 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 - 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 (see
Salduz, cited above, § 50). As the Court has already held
in its previous judgments, the right set out in paragraph 3 (c) of
Article 6 of the Convention is one element, among others, of the
concept of a fair trial in criminal proceedings contained in
paragraph 1 (see Imbrioscia v. Switzerland, 24 November
1993, § 37, Series A no. 275, and Salduz, cited
above, § 50). The Court further recalls that the investigation
stage is of crucial importance for the preparation of criminal
proceedings, as the evidence obtained during this stage determines
the framework in which the offence charged will be considered
(Salduz, cited above, § 54). The Court has also held
that, in the context of application of paragraph 3 (e), the issue of
the defendant’s linguistic knowledge is vital and that it must
also examine the nature of the offence with which the defendant is
charged and any communications addressed to him by the domestic
authorities, in order to assess whether they are sufficiently complex
to require a detailed knowledge of the language used in court (see
Hermi v. Italy [GC], no. 18114/02, § 69, ECHR 2006 XII).
Finally, the Court has ruled that the assistance of an interpreter
should be provided during the investigation stage unless it can be
demonstrated in the light of the particular circumstances of the case
that there are compelling reasons to restrict this right (see Diallo
v. Sweden (dec.), no. 13205/07, § 25, 5 January 2010).
- In view of the above principles, the Court is called
on to examine the nature of the accusations against the applicant and
to assess whether they are sufficiently complex to require a detailed
knowledge of the language in which she was questioned. The Court
notes that the applicant is Kurdish speaking, with a limited
knowledge of Turkish. This fact is also confirmed by the decision of
the State Security Court to authorise her to have an interpreter
during the trial. It is also undisputed that she is illiterate.
Although she apparently gave a detailed account of her involvement in
an illegal organisation, the Court observes that she made those
self incriminating statements without an interpreter and also
without the assistance of a lawyer. Taking into account the
importance of the investigation stage as reiterated above, the Court
is not convinced that the applicant had a sufficient understanding of
the questions she was being asked or that she was able to express
herself adequately in Turkish, and certainly not to a level which
would justify reliance on her statements as evidence against her at
the trial.
- With
regard to the lack of legal assistance, the Court observes that
neither the letter nor the spirit of Article 6 prevents a person from
waiving of his own free will, either expressly or tacitly,
entitlement to the guarantees of a fair trial. However, if it is to
be effective for Convention purposes, a waiver of the right must be
established in an unequivocal manner and be attended by minimum
safeguards (see Pishchalnikov v. Russia, no. 7025/04, § 77,
24 September 2009). A waiver of the right, once invoked, must not
only be voluntary, but must also constitute a knowing and intelligent
relinquishment of a right. Before an accused can be said to have
implicitly, through his conduct, waived an important right under
Article 6, it must be shown that he could reasonably have foreseen
what the consequences of his conduct would be (see Talat Tunç
v. Turkey, no. 32432/96, § 59, 27 March 2007).
- The
Court recalls that the right to counsel, being a fundamental right
among those which constitute the notion of fair trial and ensuring
the effectiveness of the rest of the foreseen guarantees of Article 6
of the Convention, is a prime example of those rights which require
the special protection of the knowing and intelligent waiver
standard. It is not to be ruled out that, after initially being
advised of his rights, an accused may himself validly waive his
rights and respond to questioning. However, the Court strongly
indicates that additional safeguards are necessary when the accused
declines the right to a counsel, because if an accused has no lawyer
he has less chance of being informed of his rights and, as a
consequence, there is less chance that they will be respected (see
Pishchalnikov, cited above, § 78).
- Turning
to the particular circumstances of the instant case, the Court
observes that as regards the lack of access to a lawyer during the
applicant’s custody, the present case differs from Salduz,
cited above, as in 2004 when the applicant was arrested the domestic
legislation had already been amended by Law no. 4928, adopted on 15
July 2003. Consequently, the restriction on an accused’s right
of access to a lawyer in proceedings before State Security Courts had
already been lifted. As a result, when the applicant was arrested on
19 February 2004, she had the right of access to a lawyer from the
moment she was taken into custody. Despite this amendment in the
Turkish legislation, the Court notes that in the instant case the
applicant did not benefit from the assistance of a lawyer during the
preliminary investigation stage. When questioned by the police, the
public prosecutor and the investigating judge respectively, the
applicant gave self-incriminating statements and signed the reports
with her fingerprint. The Court notes that the applicant was accused
of being a member of an illegal organisation, which is a very serious
charge, and faced a heavy penalty.
- Against
this background, and taking into account its above finding that the
applicant had an insufficient knowledge of Turkish, the Court
considers that, without the help of an interpreter, she could not
reasonably have appreciated the consequences of accepting to be
questioned without the assistance of a lawyer in a criminal case
concerning the investigation of particularly grave criminal offences
(see Talat Tunç, cited above, § 60). Consequently,
it cannot find that the applicant waived her right to a lawyer in a
knowing and intelligent way. Furthermore, the Court considers that
additional protection should be provided for illiterate detainees
with a view to ensuring that the voluntary nature of a waiver is
reliably established and recorded. In the present case, however, no
specific measures of this kind were envisaged.
- In
view of the foregoing, the Court considers that even though the
applicant had the assistance of a lawyer and an interpreter during
her trial before the first-instance court and subsequently before the
appeal court, the absence of an interpreter and a lawyer during her
police custody irretrievably affected her defence rights.
- The
Court therefore concludes that there has been a violation of
Article 6 § 3 (c) and (e) of the Convention in conjunction
with Article 6 § 1 in the present case.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant alleged under Article 6 § 1 of the Convention that
generally State Security Courts were not independent and impartial.
- Firstly,
the Court observes that following the amendments made by Law no. 4390
on 22 June 1999, the military judge sitting on the bench of the Izmir
State Security Court was replaced by a civilian judge. Thus, no
military judge participated in the applicant’s trial. Secondly,
with regard to the applicant’s general complaint about the
independence and impartiality of the State Security Courts, the Court
observes that she has failed to substantiate this claim. The Court
therefore concludes that the applicant cannot be regarded as having
been deprived of a fair hearing on account of the composition of the
court (see Sever and Aslan (dec.), no. 33675/02, 12 April
2007).
- In
the light of the foregoing, the Court rejects this complaint as
manifestly ill-founded within the meaning of Article 35 §§
3 and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- The applicant claimed 20,000
euros (EUR) in respect of pecuniary damage and EUR 10,000 in respect
of non-pecuniary damage. She further claimed EUR 4,250 for
legal fees (corresponding to 8.5 hours’ work)
- The Government contested the
claims.
- The Court does not discern any
causal link between the violation found and the pecuniary damage
alleged; it therefore rejects this claim. However, the Court
considers that the applicant must have suffered some non-pecuniary
damage and therefore, taking into account the circumstances of the
present case, and ruling on an equitable basis, it awards her
EUR 1,800 in respect of non-pecuniary damage.
- The Court further
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 she so request (see
Salduz, cited above, § 72).
- As
regards costs and expenses, the Court reiterates that 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. Taking into account the
awards made in comparable cases (see Bolukoç and Others v.
Turkey, no. 35392/04, § 47, 10 November 2009;
Gürova v. Turkey, no. 22088/03, § 21, 6 October
2009; and Salduz, cited above, § 79), the Court finds it
reasonable to award EUR 1,000 under this head.
- 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 complaint concerning the lack of
legal assistance and an interpreter for the applicant admissible and
the remainder of the application inadmissible;
- Holds that there has been a violation of Article
6 § 3 (c) and (e) of the Convention in conjunction with Article
6 § 1;
- 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 5 April 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Françoise Tulkens Registrar President
