ARAS v. TURKEY (No. 2) - 15065/07 - Chamber Judgment [2014] ECHR 1294 (18 November 2014)

In the case of Aras v. Turkey (No. 2),

The European Court of Human Rights (Second Section), sitting as a Chamber composed of:

          Guido Raimondi, President,
          Işıl Karakaş,
          András Sajó,
          Helen Keller,
          Paul Lemmens,
          Robert Spano,
          Jon Fridrik Kjølbro, judges,
and Stanley Naismith, Section Registrar,

Having deliberated in private on 7 October 2014,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 15065/07) 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 Engin Aras (“the applicant”), on 23 March 2007.

2. The applicant was represented by Mr H. G. Sarı, a lawyer practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent.

3. On 5 May 2011 the Government were given notice of the application.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4. On 25 December 1997 the applicant became a member of the executive board of Yurtbank, and subsequently on 25 March 1998 he was appointed as Director General of the bank.

5. On 19 August 1998 Yurtbank founded the Yurt Security Offshore Bank in the “Turkish Republic of Northern Cyprus” (the “TRNC”). Subsequently, Yurtbank branch offices in Turkey started collecting deposits to be transferred to offshore accounts in the “TRNC”.

6. On 4 October 1999 the applicant resigned from his post as Director General and subsequently on 30 November 1999 he resigned from membership of the executive board.

7. On 21 December 1999 the Committee of Ministers decided to transfer the management and control of Yurtbank to the Savings Deposits Insurance Fund (Tasarruf Mevduat Sigorta Fonu). As result, a new executive board was set up and an inspector was appointed to study the administration of Yurtbank.

8. On 6 October 2000 the inspector submitted his report. Following an inspection of all the bank’s accounts, the inspector found it established that the Yurt Security Offshore Bank owed 32,898,662,376,959 Turkish liras (TRL), 5,105,982 US dollars (USD) and 7,514,387 German marks (DEM) to account holders. The report stated that these sums had been used by Yurtbank to provide loans to companies owned by Mr A.B., the main shareholder of the bank. The applicant’s name was also included in the list of persons who had authorisation to make the transfers. It was however stressed that the inspection had not revealed any direct or indirect responsibility on the part of the applicant in the impugned transfers.

9. On 2 November 2000 the new executive board filed a criminal complaint against the former board members, including the applicant. It was alleged that fifteen people, including the applicant, had established a criminal organisation to commit fraud. The complainants stated that the former board members had set up an offshore company with the aim of collecting deposits which they subsequently used to provide irregular loans. In that connection, it was indicated that the deposits collected for the offshore account had never been transferred to the “TRNC”.

10. On 14 November 2000 the applicant was arrested in Istanbul on suspicion of aggravated fraud. According to a form explaining arrested persons’ rights which the applicant signed, he had been informed of the charges against him and of his right to remain silent. In the form it was further noted that legal assistance could not be provided to persons accused of offences falling within the jurisdiction of the State Security Courts.

11. On 17 November 2000 the applicant was questioned without a lawyer present. In his police statement, the applicant explained that although he had been the Director General of the bank, he had not been directly involved in offshore banking activities, which were administered by a separate directorate. He stated that Yurtbank had acted as a correspondent bank for Yurt Security Offshore Bank. He explained that he had not put pressure on the managers of branch offices to collect deposits for offshore accounts but had known that the managers received bonus payments depending on the number of deposits they had collected for offshore accounts. He further explained that, using the deposits saved in offshore accounts, the bank had signed loan contracts with companies which were owned by the main shareholder of the bank, Mr A.B. In concluding these loan agreements, the bank had not requested any security and the agreements had been concluded on the basis of verbal authorisation, without any documents being submitted. The applicant stated that when he had become aware of the illegal activities he had quit his post as Director General of Yurtbank.

12. On 21 November 2000 the applicant was brought before the public prosecutor and subsequently the investigating judge at the Istanbul State Security Court. Before the public prosecutor, and without a lawyer present, the applicant repeated his police statement. When the applicant was brought before the investigating judge, the judge allowed the applicant’s lawyer to enter the hearing room. However, he was not allowed to take the floor or advise the applicant. During questioning, the applicant repeated his police statement and pointed out that there was no legislation or court decision that banned offshore banking activities. Following questioning, the applicant was placed in pre-trial detention.

13. On 10 January 2001 the public prosecutor at the Istanbul State Security Court filed an indictment with that court against thirty accused persons, including the applicant. The prosecutor accused the applicant of forming a criminal organisation and of committing aggravated fraud under Articles 313 and 504 of the Criminal Code (Law no. 765 - now repealed). In this connection it was alleged that a company owned by Mr A.B. had constructed real estate and that before the construction was finished the persons intending to buy the properties had been provided with real estate loans by Yurtbank, in which Mr A.B. was the main shareholder. In the process of concluding these loan agreements, the requisite legal documents and security had not been requested from the potential buyers, and by granting irregular loans the accused persons had allegedly committed fraud. It was also alleged that offshore banking activities had been used as a cover in order to provide illegal and irregular loans to the companies owned by the bank’s main shareholder, Mr A.B.

14. On 19 March 2001 the Istanbul State Security Court held its first hearing. In the presence of his lawyer, the applicant submitted his written defence submissions to the court. He stated that he accepted the statements taken from him in custody and pleaded not guilty.

15. On 18 June 2001 the applicant was released pending trial.

16. Following a change in the domestic legislation, the case was transferred from the Istanbul State Security Court to the Istanbul Second Assize Court on 24 December 2001.

17. At a hearing held on 10 October 2002 the trial court appointed three experts. In particular, the experts were asked to clarify whether irregular loans had been provided to companies owned by the main shareholder of the bank; whether the accused board members could be held responsible for those allegedly illegal transactions; and whether in providing the loans the bank had complied with the domestic legislation and obtained the prior authorisations and documents that were legally required. The experts were further asked to investigate the legality of the offshore activities of Yurt Security Offshore Bank. On 14 July 2003 the experts submitted a lengthy report to the court. At the outset, they pointed out that there was no domestic legislation which banned offshore banking activities in Turkey and that the establishment of Yurt Security Offshore Bank had been in line with domestic law and the “TRNC” legislation.

18. At a hearing held on 4 December 2003, the court ordered another expert report. On 13 January 2004 the report was submitted to the court. The experts concluded that, in the circumstances of the present case, it could not be concluded that the accused persons had committed aggravated fraud. In that connection they referred to the fact that when depositors opened offshore accounts it was clearly indicated in the relevant documents that these were offshore accounts, and therefore the depositors should have been aware of the fact that their deposits were not protected by the Savings Deposits Insurance Fund.

19. On 15 January 2004, pursuant to a change in the banking legislation, the Istanbul Eighth Assize Court became the competent specialised court to deal with cases concerning the Banking Activities Act (Law no. 4389), and the applicant’s case was accordingly transferred to that court. The new court requested a third expert report in order to calculate the damage sustained by the third-party interveners. In a report dated 14 October 2004, the experts pointed out that from 21 December 1999 onwards the accused persons, including the applicant, had been responsible for a total sum of TRL 15,832,536,971,373.

20. In the course of the hearings, several witness statements were taken, including from the managers of branch offices, who testified that they had been pressurised into collecting deposits for the offshore accounts. The applicant and his co-accused also submitted several legal opinions to the court drafted by university professors, attesting to the legality of offshore banking activities.

21. On 17 December 2004 the Istanbul Eighth Assize Court delivered its judgment. It held in the first place that it could not be established that the accused persons had intended to form a criminal organisation. It accordingly acquitted them of this charge. As to the accusations that the applicant had been involved in aggravated fraud on two counts, namely by providing illegal real estate loans and by using offshore banking activities to cover up fraudulent loans, the court found the applicant guilty as charged under Article 504 § 3 of the Criminal Code (Law no. 765). The applicant was accordingly sentenced to a total of five years and ten months’ imprisonment and a fine. In delivering its judgment, the court based its findings on the bank’s inspection reports, the expert reports, the police statements of the applicant and his co-accused, and witness statements. The court found it established that in his capacity as Director General of Yurtbank the applicant had given authorisation for the granting of irregular loans to companies which were owned by Mr A.B.

22. On 7 February 2005 the applicant appealed.

23. On 22 April 2005 the Principal Public Prosecutor at the Court of Cassation submitted his written opinion on the merits of the case. This opinion was served on the applicant’s lawyer on 7 June 2005. After holding a hearing, the Court of Cassation quashed the judgment of the first-instance court in so far as it concerned the term of imprisonment, stating that the sentence should be reassessed in the light of the new Criminal Code (Law no. 5237) that had entered into force in June 2005. It also upheld the acquittal of the applicant on the charge of forming a criminal organisation.

24. The case was accordingly remitted to the Istanbul Eighth Assize Court. On 29 September 2005 the applicant requested the court to hear evidence from several witnesses, including directors of the bank and certain experts, in particular a certain İ.F. The court rejected his requests on the same day, stating that the proceedings were at a stage where no more evidence was necessary. Nevertheless, at a hearing held on 27 October 2005 the witness İ.F. was heard and he made submissions regarding offshore banking. In his testimony, İ.F. explained the development of offshore banking and maintained that, in his opinion as an expert, the acts in question had not constituted an offence at the time when they were committed by the applicant.

25. On 29 November 2005 the first-instance court delivered its judgment. In lengthy reasoning, taking into account the decision of the Court of Cassation, it decided to sentence the applicant to one year and fifteen days’ imprisonment and a fine for providing illegal real estate loans, and then suspended this sentence. As to the charge of aggravated fraud through offshore banking activities, the court sentenced him to two years and one month’s imprisonment and a fine under Article 158 § (f) of the new Criminal Code, indicating that this was the most favourable provision applicable to the applicant’s case. In this connection, it was noted that the main shareholder of the bank, Mr A.B., had committed fraud by way of banking activities. The court further stated that although the applicant had not been officially working for the offshore bank, in his capacity as the Director General of Yurtbank he was aware of the fraudulent actions, and had actively participated in the unlawful activities by using Yurtbank’s resources.

26. The applicant appealed against the judgment of the Assize Court. On 9 February 2006 the opinion of the Principal Public Prosecutor attached to the Court of Cassation was notified to the applicant’s lawyer and on 13 April 2006 the applicant submitted his written observations in reply.

27. On 19 October 2006 the Court of Cassation discontinued the proceedings concerning the suspended sentence in respect of illegal real estate loans, holding that the statutory time-limit had expired. The appeal court further upheld the judgment of the first-instance court in respect of the applicant’s conviction for aggravated fraud by way of banking activities.

II. RELEVANT DOMESTIC LAW

A. Legislation regarding banking and offshore banking

28. Criminal Code (Law no. 765, repealed)

Article 504 - Aggravated cases of fraud

“A person who commits fraud;

...

(3) By using postal services or the resources of banks or lending institutions or any public institution;

... shall be sentenced to between two and five years’ imprisonment and a cash penalty of twice the amount of his or her unlawful gains.”

29. Law on Banking Activities (Law no. 3182, repealed)

Section 74 - Offshore banking

“...

2) This Code shall not be applied to banks exclusively carrying out offshore activities.”

30. Criminal Code (Law no. 5237)

Article 158 - Aggravated cases of fraud

“A person who commits fraud;

...

(f) By using the resources of information systems, banks or lending institutions,

... shall be sentenced to between two and seven years’ imprisonment and a cash penalty of up to 5,000 days’ standard income.”

31. Recent regulations criminalising unlawful offshore banking activities

Offshore banking was regulated in more detail with the entry into force of the Regulation on the Operations of Banks in 2001. An additional section of the Regulation, adopted in 2002, states that banking activities carried out with the purpose of providing deposits for banks’ offshore affiliates is to be considered as unlawful acceptance of deposits, an offence which is subject to a term of imprisonment of from three to five years and a fine of three thousand to five thousand Turkish liras under the recent Banking Activities Act (Law no. 4389).

B. Legislation in force at the time of the application regarding access to legal assistance during police custody

32. The relevant provisions of the former Code of Criminal Procedure (Law no. 1412), namely Articles 135, 136 and 138, provided that anyone suspected or accused of a criminal offence had a right of access to a lawyer from the moment he was taken into police custody.

33. According to section 31 of Law no. 3842 of 18 November 1992, which amended the legislation on criminal procedure, the above-mentioned provisions were not applicable to persons accused of offences falling within the jurisdiction of the State Security Courts.

C. Legislation regarding the notification of the opinion of the Principal Public Prosecutor at the Court of Cassation

34. Following the Court’s judgment in the case of Göç v. Turkey ([GC], no. 36590/97, §§ 54-55, ECHR 2002-V), Article 316 of the Code of Criminal Procedure (Law no. 1412) was amended in 2003 by Law no. 4778. As a result of the amendment, it is now stipulated that the written opinion of the Principal Public Prosecutor at the Court of Cassation must be notified to the parties.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

35. The applicant alleged that his defence rights had been violated during the criminal proceedings which had been instituted against him. In particular, he relied on Article 6 §§ 1 and 3 (c), which read as follows:

“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.”

A. Legal assistance during police custody

36. The applicant alleged that he had been denied access to a lawyer during his time in police custody as he had been arrested in connection with an offence which fell within the jurisdiction of the State Security Courts.

37. The Government denied the allegation and stated that the investigating judge had allowed the applicant’s lawyer to enter the hearing room during questioning. In this connection, they referred to Rule 47 of the Rules of Court and maintained that, by not submitting this information in his application form, the applicant had misled the Court.

38. At the outset, the Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

39 The Court observes that in the present case the applicant’s access to a lawyer was restricted pursuant to section 31 of Law no. 3842, which was in force at the time. It further observes that although the applicant’s lawyer was allowed to enter the hearing room during the questioning of the applicant by the investigating judge, the applicant was not given an opportunity to consult him, and his lawyer was not allowed to take the floor and defend him.

40. In its Salduz v. Turkey judgment ([GC], no. 36391/02, §§ 54-55, ECHR 2008), the Court stressed the importance of the investigation stage for the preparation of criminal proceedings, as the evidence obtained during this stage determines the framework in which the offence charged will be considered at the trial. In order for the right to a fair hearing to remain sufficiently “practical and effective”, Article 6 § 1 requires, as a rule, access to a lawyer as from the first questioning of a suspect by the police, unless it is demonstrated in the particular circumstances of the case that there are compelling reasons to restrict this right. In the present case, the applicant’s lawyer was allowed to enter the hearing room during the questioning of the applicant, however, this was a passive presence without any possibility at all to intervene to ensure respect for the applicant’s rights. Furthermore, the restriction imposed concerning access to a lawyer was systematic, pursuant to section 31 of Law no. 3842, and applied to anyone held in police custody in connection with an offence falling under the jurisdiction of the State Security Courts. Accordingly, the Court concludes that the mere presence of the applicant’s lawyer in the hearing room cannot be considered to have been sufficient by Convention standards.

41. The Court has already examined the issue of the lack of legal assistance in police custody in the case of Salduz (cited above, §§ 56-62) and found a violation of Article 6 § 3 (c) of the Convention in conjunction with Article 6 § 1. It has examined the present case and finds no particular circumstances which would require it to depart from its findings in the aforementioned Salduz judgment.

42. There has therefore been a violation of Article 6 § 3 (c) of the Convention in conjunction with Article 6 § 1 in the present case.

B. Non-communication of the written opinion of the Principal Public Prosecutor at the Court of Cassation

43. The applicant maintained that the written opinion of the Principal Public Prosecutor at the Court of Cassation had never been served on him, depriving him of the opportunity to put forward his counter-arguments.

44. The Government submitted that the applicant could not be considered to be a victim of such a violation since the written opinion of the Principal Public Prosecutor at the Court of Cassation had been served on the applicant’s lawyer on 22 April 2005 and 9 February 2006. In support of this argument, the Government submitted the notification documents addressed to the applicant’s lawyer.

45. The Court notes that in 2003, following the amendment of Article 316 of the Code of Criminal Procedure by Law no. 4778, the written opinion of the Principal Public Prosecutor at the Court of Cassation is now notified to the parties (see, conversely, Göç , cited above, §§ 55-58). It is also observed that the Principal Public Prosecutor at the Court of Cassation submitted his written opinion twice during the appeal proceedings and that both opinions were served on the applicant’s lawyer, and that the applicant was able to put forward his counter-arguments.

46. It follows that this part of the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

C. Remaining complaints raised under Article 6 of the Convention

47. Relying on Article 6 of the Convention, the applicant alleged that the domestic courts had erred in their evaluation of the evidence, in particular in the assessment of the expert reports. The applicant also submitted that the fact that his case had been transferred to a different chamber of the Istanbul Assize Court had constituted a violation of his right to a fair trial. He further alleged that his right to the presumption of innocence had been breached, that the Court of Cassation had failed to give detailed reasoning in its decision and that his witnesses had not been called by the trial court.

48. In the light of all the material in its possession, the Court finds that these allegations by the applicant do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that these complaints must be declared inadmissible as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 7 OF THE CONVENTION

49. The applicant alleged under Article 7 of the Convention that he had been convicted of an act which had not constituted a criminal offence when it had been committed. He submitted that offshore banking activities had not been regulated under national law at the material time. He therefore concluded that the acts in dispute could not have given rise to an offence of aggravated fraud and that his conviction had been based on the new Criminal Code, which had entered into force in 2005, after the impugned acts. Article 7 of the Convention reads:

“1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.

...”

A. The parties’ submissions

50. Relying on Article 7 of the Convention, the applicant alleged that at the time of the incidents offshore banking activities had not been regulated in Turkey and could not be considered as an offence. He further submitted that his conviction under the new Criminal Code, which had entered into force in 2005, had been in breach of Article 7.

51. The Government contested the allegation. They pointed out that the applicant had been convicted of fraud and that his conviction was supported by convincing evidence. The applicant had been the Director General of Yurtbank at a time when deposits collected for transfer to the offshore accounts had in fact been transferred irregularly to several companies that had been owned by the main shareholder of the bank. In this connection the Government stated that the companies belonging to Mr A.B. had been under the supervision of the Office of the Deputy Secretary of the Treasury since January 1998 and that these companies had been banned from concluding loan agreements. The Government accordingly submitted that there had been no violation of Article 7 in the present case, as the crime of which the applicant had been accused and convicted had been defined clearly under domestic law, namely under Article 504 of the former Criminal Code and Article 158 of the new Criminal Code.

B. The Court’s assessment

52. The Court reiterates that Article 7 of the Convention is not confined to prohibiting the retrospective application of the criminal law to an accused’s disadvantage: it also embodies, more generally, the principle that only the law can define a crime and prescribe a penalty (nullum crimen, nulla poena sine lege) and the principle that the criminal law must not be extensively construed to an accused’s detriment. From these principles it follows that an offence must be clearly defined in the law. This requirement is satisfied where the individual can know from the wording of the relevant provision and, if need be, with the assistance of the courts’ interpretation of it, what acts and omissions will make him criminally liable (see Veeber v. Estonia (no. 2), no. 45771/99, § 31, ECHR 2003-I).

53. It is not the Court’s task to rule on an applicant’s individual criminal responsibility, that being primarily a matter for the assessment of the domestic courts, but to verify that at the time when an accused person performed the act which led to his being prosecuted and convicted there was in force a legal provision which made that act punishable (see Streletz, Kessler and Krenz v. Germany [GC], nos. 34044/96, 35532/97 and 44801/98, § 51, ECHR 2001-II), and that the punishment imposed did not exceed the limits fixed by that provision (see Del Rio Prada v. Spain [GC], no. 42750/09, § 80, ECHR 2013).

54. When speaking of “law” Article 7 alludes to the very same concept as that to which the Convention refers elsewhere when using that term, a concept which comprises statutory law as well as case-law and implies qualitative requirements, notably those of accessibility and foreseeability (see Del Rio Prada, cited above, § 91). However, in the Convention States, the progressive development of the criminal law through judicial law-making is a well-entrenched and necessary part of legal tradition. Accordingly, Article 7 of the Convention cannot be read as outlawing the gradual clarification of the rules of criminal liability through judicial interpretation from case to case, provided that the resultant development is consistent with the essence of the offence and could reasonably be foreseen (see Del Rio Prada, cited above, § 93).

55. In the present case, the Court observes that in the indictment dated 10 January 2001 the applicant was charged with aggravated fraud. In this connection it was alleged that the applicant, as the Director General of Yurtbank, had influenced the bank’s branch offices to collect deposits to be transferred to offshore accounts. It was pointed out that these deposits had been used to provide loans to companies which were owned by the bank’s main shareholder, Mr A.B. During the proceedings, in which the case was examined at length twice at two levels of jurisdiction and the applicant was manifestly able to submit his counter-arguments by submitting legal opinions and witness statements in his favour, the domestic courts found it established that a large sum of money that had been collected from depositors for the offshore accounts had never been transferred to the “TRNC” and had been used instead to provide loans to several companies owned by Mr A.B. In its judgment dated 17 December 2004 the trial court found the applicant guilty as charged under Article 504 of the now repealed Criminal Code (Law no. 765) and sentenced him to two years and eleven months’ imprisonment and a fine in respect of this offence. As the appeal proceedings were pending, the Court of Cassation decided that the sentence should be reassessed in the light of the new Criminal Code (Law no. 5237) that had entered into force in June 2005. Accordingly, the case was remitted to the Assize Court. Following a retrial, on 29 November 2005 the court sentenced the applicant to two years and one month’s imprisonment and a fine under Article 158 § (f) of the new Criminal Code, indicating that this was the most favourable provision applicable to the case.

56. In the light of the above, the Court observes that contrary to the allegations of the applicant, he was not convicted on account of his involvement in offshore activities, as alleged. It is clear that the applicant was convicted of involvement in fraudulent banking operations and that this offence was clearly punishable under Article 504 of the former Criminal Code (Law no. 765) and subsequently under Article 158 of Law no. 5237. As this latter provision provided more favourable terms to the applicant, the trial court decided to rely on this new provision, and accordingly the applicant’s prison sentence was reduced to two years and one month (see Scoppola v. Italy (no. 2) [GC], no. 10249/03, §§ 103-109, 17 September 2009).

57. The Court reiterates that the scope of the notion of foreseeability depends to a considerable degree on the content of the text in issue, the field it is designed to cover and the number and status of those to whom it is addressed. A law may still satisfy the requirement of foreseeability even if the person concerned has to take appropriate legal advice to assess, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. This is particularly true in relation to persons carrying on a professional activity, who are used to having to proceed with a high degree of caution when pursuing their occupation. They can on this account be expected to take special care in assessing the risks that such activity entails (see Cantoni v. France, 15 November 1996, § 35, Reports of Judgments and Decisions 1996-V; Soros v. France, no. 50425/06, § 53, 6 October 2011).

58. Having regard to the foregoing, the applicant, who was an executive board member and Director General of Yurtbank, and who undoubtedly had the benefit of appropriate legal advice in the course of his duties, should have foreseen at the material time that he ran a risk of prosecution for fraudulent granting of loans to companies belonging to the main shareholder of the bank. As a result, it cannot be concluded that he was found guilty of an offence on account of an act which did not constitute a criminal offence under national law.

59. In the light of the foregoing, the Court concludes that this part of the application is manifestly ill-founded and should be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

A. Damage

60. The applicant claimed 90,750 euros (EUR) in respect of pecuniary damage. He further claimed a symbolic sum of EUR 1 in respect of non-pecuniary damage for the suffering caused by the alleged violations of the Convention.

61. The Government contested the claims.

62. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. As regards non-pecuniary damage, the Court, having regard to the specific circumstances of the case as well as the applicant’s request for a symbolic sum, considers that the finding of a violation of Article 6 constitutes sufficient just satisfaction for any non-pecuniary damage sustained.

B. Costs and expenses

63. The applicant also claimed EUR 1,818 for the costs and expenses incurred before the Court. In that regard, he submitted a copy of the invoice.

64. The Government contested the claim.

65. 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 were 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 applicant EUR 1,000.

C. Default interest

66. The Court considers it appropriate that the default interest rate 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

1. Declares, unanimously, the complaint concerning the applicant’s right to legal assistance during his police custody admissible and the remainder of the application inadmissible;

2. Holds, by five votes to two, 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 during his police custody;

3. Holds, by five votes to two, that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant;

4. Holds, by five votes to two,

(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 1,000 (one thousand euros) plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be converted into the currency of the respondent State 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;

5. Dismisses, unanimously, the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 18 November 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stanley Naismith Guido Raimondi
Registrar President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Spano joined by Judge Lemmens is annexed to this judgment.

G.R.A.
S.H.N.

PARTLY DISSENTING OPINION OF JUDGE SPANO JOINED BY JUDGE LEMMENS

1. The majority finds 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 during his police custody. With this finding the majority interprets the Court’s Grand Chamber judgment in Salduz v. Turkey ([GC], no. 36391/02, ECHR 2008) as providing for a rule which is purely theoretical and illusory on the facts of this case. As I will explain in more detail below, this interpretation of the judgment in Salduz is neither warranted in the light of the reasoning of the Grand Chamber in that case nor does it take into account the subsequent developments in the Court’s case-law on the fair trial guarantee of Article 6 § 1 and its subsidiary components in paragraph 3 of the same Article. I therefore respectfully dissent.

II.

2. It is undisputed in this case that during the first hearing of the trial court in the applicant’s case on 19 March 2001 the applicant, assisted by a lawyer, submitted his written submissions and “stated that he accepted the statements taken from him in custody and pleaded not guilty” (see paragraph 14 of the judgment). It follows that although he was questioned on 17 November 2000 whilst in police custody without a lawyer present, the applicant did not, directly or indirectly, deviate from those statements or deny their relevance at any point in time throughout his trial, or in any way make the claim that the taking of those statements without the presence of a lawyer had had any prejudicial effect on his defence. The majority’s finding of a violation is thus based on a purely automatic application of the requirement of legal assistance under Article 6 § 3 (c), without it being deemed necessary to show that the lack of such assistance had a prejudicial effect, even speculatively, on the fairness of the applicant’s trial.

3. The majority’s reasoning for this finding is based solely on the purported application of Salduz v. Turkey (cited above, §§ 54-62) to the facts of this case.

In Salduz, the Grand Chamber began its reasoning in § 50, in the part dealing with the “general principles”, by noting that Article 6, especially paragraph 3 thereof, “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 ...” (emphasis added). The Court then observed in § 51 that although the right of everyone charged with a criminal offence to be effectively defended by a lawyer was one of the fundamental features of a fair trial,

“... Article 6 § 3 (c) does not specify the manner of exercising this right. It thus leaves to the Contracting States the choice of the means of ensuring that it is secured in their judicial systems, the Court’s task being only to ascertain whether the method they have chosen is consistent with the requirements of a fair trial. In this respect, 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” and that assigning counsel does not in itself ensure the effectiveness of the assistance he may afford an accused...” (emphasis added).

4. This qualification of the scope of the Grand Chamber’s findings in Salduz is clear in my view. The Court refrained from adopting an absolute rule on the assistance of legal counsel which would have the effect of unifying rules of criminal procedure within the Contracting States. On the contrary, the criterion to be examined by the Court was limited to “whether the method they have chosen is consistent with the requirement of a fair trial”. This reading of Salduz, as providing for a relative rule as to the application of Article 6 § 3 (c) which is closely connected to a holistic assessment of fairness under Article 6 § 1, is furthermore supported by subsequent Grand Chamber case-law on Article 6 § 1 and paragraph 3 of the same Article, notably in Taxquet v. Belgium ([GC], no. 926/05, ECHR 2010), and Al-Khawaja and Tahery v. the United Kingdom ([GC], nos. 26766/05 and 22228/06, ECHR 2011), as I will explain more fully in paragraphs 12 and 13 below.

5. To return to the reasoning in Salduz, the Grand Chamber, having made the above findings (see paragraphs 3 and 4 above), went on to observe, very importantly, as follows (§ 52):

“National laws may attach consequences to the attitude of an accused at the initial stages of police interrogation which are decisive for the prospects of the defence in any subsequent criminal proceedings. In such circumstances, Article 6 will normally require that the accused be allowed to benefit from the assistance of a lawyer already at the initial stages of police interrogation. However, this right has so far been considered capable of being subject to restrictions for good cause. The question, in each case, has therefore been whether the restriction was justified and, if so, whether, in the light of the entirety of the proceedings, it has not deprived the accused of a fair hearing, for even a justified restriction is capable of doing so in certain circumstances. ...” (emphasis added).

6. Here again, the Grand Chamber took great care to limit its findings to an assessment of whether the lack of legal assistance had, in the light of the “entirety of the proceedings”, had the effect of depriving “the accused of a fair hearing”. The reasoning continued on that basis, with the Grand Chamber stating in § 54 that “[e]arly access to a lawyer is part of the procedural safeguards to which the Court will have particular regard when examining whether a procedure has extinguished the very essence of the privilege against self-incrimination” .

7. The Grand Chamber then concluded its reasoning under the heading of “The general principles applicable in this case” as follows (§ 55):

“Against this background, the Court finds that in order for the right to a fair trial to remain sufficiently ‘practical and effective’ (see paragraph 51 above), Article 6 § 1 requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right. Even where compelling reasons may exceptionally justify denial of access to a lawyer, such restriction - whatever its justification - must not unduly prejudice the rights of the accused under Article 6 ... . 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” (emphasis added).

8. As before, the Grand Chamber emphasised the relative effect of the fact that the accused had provided “incriminating statements” during police interrogation without access to a lawyer, in the form of his rights of defence being “irretrievably prejudiced”.

9. In sum, taking account of the reasoning in §§ 50-55 of Salduz, comprising the part on the applicable general principles, it cannot, in my view, be reasonably inferred from the Court’s analysis that the judgment provides for an absolute rule whereby the lack of legal assistance during police interrogation will always, without exception, entail a violation of the Convention, even when, as in the present case, it is clear that the absence of counsel did not have a prejudicial effect on the accused’s conviction at trial, nor did the accused even claim that this was the case.

10. In proceeding to apply the general principles articulated in §§ 50-55 to the facts of the case, the Grand Chamber in Salduz noted in § 56 that the applicant’s right of access to a lawyer had been restricted during his police custody pursuant to section 31 of Law no. 3842, as he had been accused of committing an offence falling within the jurisdiction of the State Security Courts. As a result, he had not had access to a lawyer when he made his statements to the police, the public prosecutor and the investigating judge respectively. Thus, no justification had been given for denying the applicant access to a lawyer other than the fact that this was provided for on a systematic basis by the relevant legal provision. The Grand Chamber then stated as follows:

“As such, this already falls short of the requirements of Article 6 in this respect, as set out in paragraph 52 above” (emphasis added).

At first glance this sentence, read in isolation, might be understood to mean that the mere fact that the restriction on access to a lawyer in Turkey at the relevant time was of a systematic nature entailed, in and of itself, a violation of Article 6. However, such a literal understanding of this sentence is untenable for two reasons.

Firstly, such a reading would in essence render the careful and limited analysis of the general principles in §§ 50-55 effectively redundant. On the contrary, it is crucial to understand this sentence in context, in particular in the light of the analysis by the Grand Chamber of the general principles set forth in §§ 50-55 which I have discussed above (see paragraphs 3-8), as supported by the clear reference in the sentence to § 52 (see paragraph 5 above).

Secondly, the sentence must be read in the light of the facts of Salduz itself and the way in which the Grand Chamber applied the general principles of the case to those facts. In Salduz, the applicant, a minor, had clearly given an incriminating statement during police questioning in the absence of a lawyer, a statement whose accuracy he subsequently denied. Thus, the Grand Chamber stated in clear and unequivocal terms in § 58 that the applicant “was undoubtedly affected by the restrictions on his access to a lawyer in that his statement to the police was used for his conviction. Neither the assistance provided subsequently by a lawyer nor the adversarial nature of the ensuing proceedings could cure the defects which had occurred during police custody. ...” (emphasis added).

11. In conclusion, nothing in the reasoning in Salduz warrants, in my view, the application of an expansive and inflexible rule providing that a lack of legal assistance will automatically result in a Contracting State having violated Article 6 § 3 (c) in conjunction with Article 6 § 1, without it being shown (or even claimed by the applicant) that this prejudiced the rights of the defence.

12. Furthermore, and importantly, I would reiterate that the above understanding of the judgment in Salduz is clearly supported by subsequent Grand Chamber case-law on the scope of the fair trial guarantee of Article 6 § 1, alone and in conjunction with the safeguards of paragraph 3. Thus, in Taxquet, cited above, the Court emphasised (§ 83) that a “variety of legal systems [exist] in Europe, and it is not the Court’s task to standardise them”. Furthermore, the Court noted that a “State’s choice of a particular criminal-justice system is in principle outside the scope of the supervision carried out by the Court at European level, provided that the system chosen does not contravene the principles set forth in the Convention”. The Court then stated explicitly (§ 84):

“... The Contracting States enjoy considerable freedom in the choice of the means calculated to ensure that their judicial systems are in compliance with the requirements of Article 6. The Court’s task is to consider whether the method adopted to that end has led in a given case to results which are compatible with the Convention, while also taking into account the specific circumstances, the nature and the complexity of the case. In short, it must ascertain whether the proceedings as a whole were fair...” (emphasis added).

A year later, the Court reaffirmed this holistic and relative approach to the fair trial guarantee of Article 6 § 1, in conjunction with its subcomponents in paragraph 3 of the same Article, in Al-Khawaja and Tahery, cited above, where the Court examined a complaint alleging a violation of Article 6 §§ 1 and (3) (d), observing as follows (§ 118):

“The Court notes that the guarantees in paragraph 3 (d) of Article 6 are specific aspects of the right to a fair hearing set forth in paragraph 1 of this provision which must be taken into account in any assessment of the fairness of proceedings. In addition, the Court’s primary concern under Article 6 § 1 is to evaluate the overall fairness of the criminal proceedings (see, as a recent authority, Taxquet v. Belgium [GC], no. 926/05, § 84, ECHR 2010, with further references therein). In making this assessment the Court will look at the proceedings as a whole having regard to the rights of the defence but also to the interests of the public and the victims that crime is properly prosecuted (see Gäfgen v. Germany [GC], no. 22978/05, § 175, ECHR 2010) and, where necessary, to the rights of witnesses (see, among many authorities, Doorson, cited above, § 70). It is also observed in this context that the admissibility of evidence is a matter for regulation by national law and the national courts and that the Court’s only concern is to examine whether the proceedings have been conducted fairly (see Gäfgen, cited above, § 162, and the references therein).”

13. Consequently, in my view it follows clearly from the Grand Chamber judgments in Taxquet and Al-Khawaja and Tahery that the fair trial guarantee of 6 § 1, and the auxiliary safeguards of paragraph 3 of Article 6, are not to be read as encompassing automatic rules of criminal procedure. They require an overall judicial assessment of whether a person charged with a criminal act has been treated fairly at domestic level. Therefore, there is no legally tenable reason to apply the related judgment in Salduz in a manner that would flatly contradict this subsequent case-law of the Court, creating a rule that is liable, as the present case demonstrates, to be wholly theoretical and illusory.

III.

14. In conclusion, I disagree with the majority that a reasonable application of Salduz, in the light of its reasoning and taking account of the subsequent case-law of the Grand Chamber, warrants the finding of a violation in the present case. I note that it is true that in subsequent Chamber case-law (see in particular Dayanan v. Turkey, no. 7377/03, 13 October 2009), the Court adopted a rather categorical approach to the application of the Salduz judgment. However, in Dayanan, the facts were materially different from the facts of the present case. There, the applicant had remained silent during police questioning and up until the first hearing at his trial, when he denied all the charges against him and gave testimony (see §§ 6-11). Thus, a material question arose in that case as to whether and to what extent the trial judge “attach[ed] consequences” (see Salduz, cited above, § 52) to the applicant’s initial decision, taken without legal assistance, to remain silent. I reiterate that no such material question of prejudice arose in the present case as the applicant confirmed throughout the trial the statements he had given while he was in custody during the initial stage of the investigation. Before the Court, the applicant thus does not claim that the lack of legal assistance during police questioning irretrievably prejudiced his defence rights, only that the mere fact that a lawyer was not present automatically entailed a violation of his human rights.

For all the reasons adduced above, I cannot subscribe to such a categorical and inflexible approach to the interpretation of the fair trial guarantee of Article 6 § 1, along with the safeguards of paragraph 3, as such an approach is not, in my view, in conformity with the case-law of the Grand Chamber, correctly applied.

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You are here: BAILII >> Databases >> European Court of Human Rights >> ARAS v. TURKEY (No. 2) - 15065/07 - Chamber Judgment [2014] ECHR 1294 (18 November 2014) URL: http://www.bailii.org/eu/cases/ECHR/2014/1294.html Cite as: [2014] ECHR 1294