SECOND SECTION

CASE OF ŞİRAY v. TURKEY

(Application no. 29724/08)

JUDGMENT

STRASBOURG

11 February 2014

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 Şiray v. Turkey,
The European Court of Human Rights (Second Section), sitting as a Committee composed of:
	Guido Raimondi, President,
	Işıl Karakaş,
	Peer Lorenzen,
	Dragoljub Popović,
	András Sajó,
	Paulo Pinto de Albuquerque,
	Helen Keller, judges,
and Stanley Naismith, Section Registrar,
Having deliberated in private on 21 January 2014,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 29724/08) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Abdurrahman Şiray (“the applicant”), on 6 June 2008.
2.  The applicant was represented by Ms F. Danış, a lawyer practising in Diyarbakır. The Turkish Government (“the Government”) were represented by their Agent.
3.  On 6 September 2010 the application was communicated to the Government.
THE FACTS
I.  THE CIRCUMSTANCES OF THE CASE
4.  The applicant, Mr Abdurrahman Şiray, is a Turkish national who was born in 1972 and lives in Siirt.
5.  On 20 June 2003 the applicant, who is of Kurdish origin, was arrested in Mardin and taken into police custody with three other individuals on suspicion of acting as a courier for an illegal armed organisation, namely the PKK/KADEK. The applicant was in possession of a false identity card at the time of his arrest.
6.  On 21 June 2003 F.A., who was arrested with the applicant on suspicion of attempting to participate in the armed activities of the PKK/KADEK, was questioned at the Nusaybin police headquarters, in the absence of a lawyer. F.A. claimed that he had met the applicant the day before in Batman and that at the time they were arrested in Nusaybin the applicant was taking him to the mountains to join members of the PKK/KADEK.
7.  On 22 June 2003 the applicant was taken for questioning at the Nusaybin police headquarters. Before his questioning the applicant signed a form which explained the rights of arrested persons, by which he was informed of the charges against him and his right to remain silent. In his statement, given in the absence of a lawyer, the applicant denied any affiliation with the illegal organisation and contested F.A.’s allegations. He also stated that he was a shepherd and at the time of his arrest he was in the mountains looking for sheep that he had lost. He also explained that he had been carrying a false identity card as he was an army deserter. An interpreter was present during this questioning.
8.  A confrontation was held between the applicant and F.A., without any legal assistance.
9.  On 23 June 2003 the applicant was brought before the Nusaybin Public Prosecutor, where he reiterated the statement he had made to the police.
10.  Later the same day the applicant was also questioned at the Nusaybin Magistrates’ Court in the absence of a lawyer. At the end of that questioning the judge remanded the applicant in pre-trial custody.
11.  On the same day the applicant’s co-accused, F.A., also made statements before the Nusaybin public prosecutor and the Nusaybin Magistrates’ Court, in which he repeated his allegations about the applicant.
12.  On 7 July 2003 the Public Prosecutor at the Diyarbakır State Security Court filed an indictment with that court accusing the applicant of aiding and abetting the PKK/KADEK, and F.A. of membership of that organisation.
13.  On 19 August 2003 the Diyarbakır State Security Court held its first hearing, at which the applicant informed the court that he did not have sufficient knowledge of Turkish to follow the hearings. The court bailiff, who spoke Kurdish, was therefore appointed as interpreter. During the hearing, the applicant denied the charges against him, but confirmed that the statements he had made during his detention in police custody were accurate. He explained that those statements, which he had made in Kurdish, had been translated into Turkish by Kurdish-speaking clerks.
14.  F.A. was also heard by the State Security Court at the same hearing, with the assistance of an interpreter. F.A. also denied all charges against him, as well as retracting the statements he had made before the police, the public prosecutor and the magistrates’ court. He asserted that those statements had been extracted from him under duress. He further argued that he had made his statements in Kurdish and had no way of knowing whether they had been translated into Turkish accurately.
15.  At the sixth hearing, held on 1 April 2004, the applicant’s lawyer requested the applicant’s release, claiming that the only piece of evidence found against him was F.A.’s statements made during the preliminary investigation stage. The applicant’s lawyer further argued that both the applicant’s and F.A.’s statements had been taken unlawfully and without the assistance of an interpreter, despite their inadequate knowledge of Turkish.
16.  State Security Courts were abolished by Law no. 5190 of 16 June 2004, published in the Official Gazette on 30 June 2004. The case against the applicant was therefore transferred to the Diyarbakır Assize Court.
17.  On 31 August 2004 the Diyarbakır Assize Court found the applicant guilty as charged and convicted him pursuant to Article 169 of the former Criminal Code and Section 5 of the Prevention of Terrorism Act for aiding and abetting the PKK/KADEK. The applicant appealed.
18.  On 14 February 2006 the Principal Public Prosecutor at the Court of Cassation decided that the case file should be remitted to the Diyarbakır Assize Court for examination, to decide whether the new Criminal Code which had entered into force on 1 June 2005 (Law no. 5237) had provisions which would be more favourable for the applicant. The case was thus once again examined by the Diyarbakır Assize Court in view of the recent legislative changes.
19.  On 11 May 2006 the Diyarbakır Assize Court once again convicted the applicant of aiding and abetting the PKK/KADEK, under Article 169 of the former Criminal Code and Section 5 of the Prevention of Terrorism Act, and sentenced him to four years and six months’ imprisonment. The assize court held that under the new Criminal Code the act of aiding and abetting an illegal organisation constituted the offence of membership of an illegal organisation and thus carried a higher sentence. It stated that the applicant was therefore being convicted under Article 169 of the former Criminal Code, which was more favourable to him than the corresponding provisions of the new Criminal Code. In delivering its judgment, the first-instance court mainly relied on the statements made by F.A. in respect of the applicant during the preliminary investigation stage.
20.  On 22 December 2008 the Court of Cassation upheld the judgment of the Diyarbakır Assize Court.
II.  RELEVANT DOMESTIC LAW AND PRACTICE
21.  The relevant domestic law and practice in force at the material time in respect of the right to legal assistance during detention in police custody, as well as recent developments, can be found in Salduz v. Turkey ([GC], no. 36391/02, §§ 27-44, 27 November 2008).
THE LAW
I.  ALLEGED VIOLATIONS OF ARTICLE 6 OF THE CONVENTION
22.  The applicant complained that his conviction had been based entirely on allegations made by his co-accused, F.A., which had been extracted from the latter under duress during the preliminary investigation stage, and which he had subsequently retracted. He further complained that his defence rights had been violated as he had been denied access to a lawyer while in police custody. In respect of these complaints the applicant relied on Article 6 §§ 1 and 3 of the Convention, the relevant part of which provides 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.”
23.  The Government contested the applicant’s complaints.
A.  Admissibility
24.  The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.
B.  Merits
25.  The applicant complained that he had not been provided with legal assistance at the early stages of the criminal proceedings.
26.  The Government contested those allegations, arguing that the applicant’s conviction was not solely based on his statement taken in police custody, and maintained that the authorities had fully complied with the domestic legislation which was in force at the time.
27.  The Court notes that it is not in dispute between the parties that the applicant was denied legal assistance while in custody. The restriction imposed on the applicant’s right of access to a lawyer was systemic and applied to anyone held in custody in connection with an offence falling under the jurisdiction of the State Security Courts (see Salduz, cited above, §§ 56-63; Dayanan v. Turkey, no. 7377/03, § 30-34, 13 October 2009). The Court has examined the present case and finds no particular circumstances which would require it to depart from its findings in the aforementioned Dayanan judgment.
28.  In view of this, the Court holds that there has been a violation of Article 6 § 3 (c) of the Convention in conjunction with Article 6 § 1 in the present case.
29.  Having regard to its finding above and referring to paragraph 35 below, the Court, without taking a position on the complaint raised by the applicant regarding the fairness of the proceedings in respect of the use of the statement of his co-accused, F.A., which had allegedly been obtained by ill-treatment, considers that it is unnecessary to examine it. It nevertheless considers it appropriate to affirm that if a statement obtained in breach of the principles established in the Salduz judgment were the sole and decisive evidence used in securing the conviction of a third person, this would normally constitute a breach of the right to a fair trial. The reopening of the proceedings, as being the most appropriate form of redress, would allow the clarification of all these circumstances (see Geçgel and Çelik v. Turkey, nos. 8747/02 and 34509/03, § 16, 13 October 2009, and Tezcan Uzunhasanoğlu v. Turkey, no. 35070/97, § 23, 20 April 2004).
II.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION
30.  In the application form the applicant further complained under Article 5 §§ 1 (c), 3 and 5 of the Convention that there had been no reasonable suspicion giving grounds for his arrest, that the length of his pre-trial detention was excessive, and that there was no right to compensation in domestic law for such violations of Article 5 of the Convention. The applicant further complained under Article 6 §§ 1 and 3 (e) of the Convention that he had been denied a fair hearing by an independent and impartial tribunal and that he had not been provided with an interpreter during the preliminary investigation stage despite his insufficient knowledge of Turkish. He further complained under Article 7 of the Convention that at the time of his conviction the acts which had given rise to his conviction had ceased to be classified as “aiding and abetting an illegal organisation” under the new Criminal Code. The applicant lastly contended that he faced discrimination in the exercise of his fundamental rights on account of his Kurdish ethnic origin.
31.  In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court considers that the remainder of the complaints do not disclose any appearance of a violation of any of the above Articles of the Convention. It follows that these complaints are inadmissible as manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.
III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
32.  The applicant claimed 10,000 Turkish liras (TRY) (approximately 4,000 euros (EUR)) in compensation for pecuniary damage, and TRY 30,000 (approximately EUR 12,000) in compensation for non‑pecuniary damage. He further claimed TRY 10,950 (approximately EUR 4,300) for legal fees and TRY 1,500 (approximately EUR 600) for stationery and postal expenses. He did not submit any copies of invoices, and referred to the Diyarbakır Bar Association’s tariff of lawyers’ fees.
33.  The Government contested those claims.
34.  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 him EUR 1,500 in compensation for non-pecuniary damage.
35.  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 of the Convention, should he so request (see Gençel v. Turkey, no. 53431/99, § 27, 23 October 2003).
36.  As regards costs and expenses, in accordance with the Court’s case-law an applicant is entitled to reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, the applicant has not demonstrated that he actually incurred the costs claimed. In particular, he has failed to submit documentary evidence, such as bills, receipts, a contract, a fee agreement or a breakdown of the hours spent by his lawyer on the case. Accordingly, the Court makes no award under this head.
37.  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 UNANIMOUSLY
1.  Declares the complaints concerning the denial of access to a lawyer and the use of unlawfully obtained evidence admissible and the remainder of the application inadmissible;

2.  Holds that there has been a violation of Article 6 § 3 (c) of the Convention in conjunction with Article 6 § 1, on account of the lack of legal assistance available to the applicant while in police custody;

3.  Holds that there is no need to examine the complaint concerning the use of unlawfully obtained evidence under Article 6 §§ 1 and 3 of the Convention;

4.  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, the following amount:
(i)  EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable, in respect of non- pecuniary damage;
(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 the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 11 February 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Stanley Naismith	Guido Raimondi
	Registrar	President