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SECOND
SECTION
CASE OF HALİL KAYA v. TURKEY
(Application
no. 22922/03)
JUDGMENT
STRASBOURG
22
September 2009
This judgment will become
final in the circumstances set out in Article 44 § 2
of the Convention.
In the case of Halil Kaya v.
Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Ireneu Cabral Barreto,
Vladimiro
Zagrebelsky,
Danutė Jočienė,
Dragoljub
Popović,
András Sajó,
Işıl
Karakaş, judges,
and Sally
Dollé, Section
Registrar,
Having
deliberated in private on 1 September 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 22922/03) 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 Halil Kaya (“the
applicant”), on 4 February 2003.
- The
applicant was represented by Mr K. Derin, a lawyer practising in
Adana. The Turkish Government (“the Government”) were
represented by their Agent.
- On
28 September 2006 the Court declared the application partly
inadmissible and decided to communicate to the
Government the complaint concerning the lack of legal assistance to
the applicant during his police custody. It also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
- The
applicant was born in 1983 and lives in Adana.
- On
31 December 2000 at about 00.15 a.m. the applicant, who was seventeen
years old at the time, was taken into police custody in Adana on
suspicion of aiding and abetting an illegal organisation by way of
chanting slogans in favour of that organisation and by burning tyres
in the streets. The same day he was interrogated by the police and
the public prosecutor respectively, in the absence of a lawyer.
According to the information in the file, the applicant was released
on the second day of custody.
- On
10 January 2001 the Public Prosecutor at the Adana State Security
Court filed an indictment accusing the applicant and three others of
aiding and abetting an illegal organisation, an offence under Article
169 of the Criminal Code and Section 5 of the Prevention of Terrorism
Act (Law no. 3713).
- Between
10 January and 13 August 2001, the court held thirty-four hearings,
during which the applicant was not represented by a lawyer. A lawyer
was assigned to the applicant for the hearing of 3 September 2001.
- On
3 December 2001 the State Security Court delivered its judgment. It
convicted the applicant as charged and sentenced him to two years and
six months' imprisonment. In convicting the applicant, the court had
regard to the applicant's statements to the police and the public
prosecutor, which were taken in the absence of a lawyer. On 8 July
2002 the Court of Cassation dismissed the applicant's appeal, without
holding a hearing on the merits. The decision dated 8 July 2002 was
deposited with the registry of the Adana State Security Court on 21
August 2002. Subsequently, on 11 September 2002 the applicant
was sent to prison to serve his sentence.
- In
the meantime, on 30 July 2003 Law no. 4963 entered into force, which
amended Article 169 of the Criminal Code. Relying on the fact that
the new law provided more favourable provisions for the applicant, on
29 August 2003 the applicant's lawyer requested the re-opening
of the proceedings. On 15 September 2003 the Adana Criminal Court
decided to re-open the case and ordered the applicant's release from
prison. The matter was accordingly re-examined by the Adana Criminal
Code and, in view of the new wording of Article 169 of the Criminal
Code, on 7 October 2004 the court held that the applicant should not
be convicted under Article 169 but under Article 312. As a
result, he was sentenced to three months and ten days' imprisonment
and his sentence was converted to a fine. Furthermore, in accordance
with Law no. 647, the execution of his sentence was postponed. On 7
October 2004 the applicant appealed.
- On
19 December 2005 the Principal Public Prosecutor at the Court of
Cassation decided that the case file should be remitted to the Adana
Criminal Court for re-examination. In his decision, the prosecutor
referred to new legislation which had entered into force on 12
October 2004, amending the Criminal Code once again. The Prosecutor
drew further attention to another new amendment which had been made
on 31 March 2005 to Law no. 5326 concerning misdemeanours.
- The
applicant's case was once again examined by the Adana Criminal Court
in view of the recent legislative amendments. Finally, on 8 May
2006 the court found the applicant guilty under Article 215 of Law
no. 5326 and sentenced him to twenty five days' imprisonment.
The court further converted the sentence to a fine and, pursuant to
Law no. 5395 on Juvenile Protection, it decided to defer adjudication
of the sentence. This decision was upheld by the Adana Assize Court
on 20 June 2007.
THE LAW
- Relying
on Article 6 § 3 (c) of the Convention, the applicant complained
that, although he was a minor at the time, he had been denied the
assistance of a lawyer during his police custody.
- The
Government maintained in the first place that the applicant had not
exhausted domestic remedies, as required by Article 35 § 1 of
the Convention, since at no stage of the domestic proceedings did he
rely on the fact that he had been deprived of his right to legal
assistance during police custody. In the alternative, they stated
that the application was introduced outside the six months
time-limit, since the applicant was represented by a lawyer during
his trial after 3 September 2001. In the alternative, relying on the
Court's case-law in the Okul v. Turkey decision (no. 45358/99,
4 September 2003), they considered that the six months
time-limit should run from 8 July 2002, the date on which the Court
of Cassation delivered its decision.
- The
Court notes that the restriction imposed on the applicant's right of
access to a lawyer was systemic, pursuant to section 31 of Law
no. 3842, and applied to anyone held in police custody in
connection with an offence falling within the jurisdiction of the
State Security Courts. As a result, this restriction was applied as a
blanket rule and the applicant could not request the benefit of legal
assistance during his police custody.
Accordingly, the Court rejects the Government's preliminary objection
regarding exhaustion of domestic remedies. As to the
Government's contention that the applicant failed to comply with the
six months time-limit, the Court recalls that,
in assessing whether or not a trial was fair, regard should be had to
the entirety of the proceedings (see John
Murray v. the United Kingdom,
8 February 1996, § 63, Reports
of Judgments and Decisions 1996 I).
Furthermore, in the Okul
decision, referred to by the Government, the Court had referred to
Article 324 of the Code of Criminal
Procedure, which states that, if the Court of Cassation holds a
hearing, it should deliver its decision within one week following
that hearing. However, in the present case, the Court of Cassation
did not hold a hearing on the merits of the case.
- The
Court reiterates that where an applicant is not entitled to be served
ex officio
with a written copy of the final domestic decision and if she or he
was represented by a lawyer during the domestic proceedings, as in
the present case, the date on which the final domestic decision was
deposited with the registry of the first-instance court should be
taken as the starting-point under Article 35 § 1 of the
Convention, being the latest date by which the
applicant or his or her representative was definitively able to find
out about the content of the final decision (see İpek
v. Turkey (dec.), no. 39706/98,
7 November 2000). In the present case, the decision dated 8 July
2002 was deposited with the Registry of the
Adana State Security Court on 21 August 2002. As the applicant lodged
his application with the Court on 4 February 2002, the Court
considers that he has lodged his
application with the Court within the six month time-limit, as
required by Article 35 § 1 of the Convention. Consequently,
the Government's objection cannot be upheld.
- At
this point, the Court observes that, after the introduction of the
present application with the Court, the criminal proceedings against
the applicant were reopened following several amendments in the
national legislation. At the end of the trial, the domestic courts
found the applicant guilty under Article 215 of Law no. 5326, but
deferred sentencing. As a result, the applicant was placed under
supervision for a period of five years and the conviction was not
noted in his criminal record. However, before this decision, the
applicant had already been serving his prison sentence between 11
September 2002 and 15 September 2003. Consequently, the applicant can
still be considered as a victim within the meaning of Article 34
of the Convention (see, mutatis
mutandis, Birdal
v. Turkey, no. 53047/99, § 24, 2 October 2007;
a contrario,
Koç and Tambaş
(dec.), no. 46947/99,
24 February 2005).
- The
Court notes that this remaining 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 and must therefore be declared admissible.
- As
regards the merits, the Court observes that it has already examined
the same grievance in the case of Salduz v. Turkey and found a
violation of Article 6 § 3 (c) of the Convention in conjunction
with Article 6 § 1 ([GC], no. 36391/02, §§
56-62, 27 November 2008). In that judgment, the Court held that, the
restriction imposed on the right of access to a lawyer was systematic
and applied to anyone held in police custody during that period,
regardless of his or her age, in connection with an offence falling
within the jurisdiction of the State Security Courts. The Court has
examined the present case and finds no particular circumstances which
would require it to depart from its findings in the aforementioned
Salduz judgment.
- The
Court notes that one of the specific elements of the instant case was
the applicant's age. Having regard to a significant number of
relevant international law materials concerning legal assistance to
minors in police custody (see Salduz, cited above, §§
32-36), the Court stresses the fundamental importance of such a
service (ibidem, § 60).
- In
view of the above, 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.
- As
regards just satisfaction under Article 41 of the Convention, the
applicant requested 40,000 euros (EUR) in respect of pecuniary damage
and EUR 40,000 in respect of non-pecuniary damage. He also
requested EUR 5,000 in respect of legal fees and EUR 300 in
respect of costs and expenses. In support of his requests, he
submitted an invoice from a translator in the amount of EUR 200. 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. In
respect of non-pecuniary damage, ruling on an equitable basis, it
awards EUR 1,500 to the applicant.
- The
Court further considers that the most appropriate form of redress
would be the re-trial of the applicant in accordance with the
requirements of Article 6 § 1 of the Convention, should he
so request (see Salduz, cited above, § 72).
- 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 were
reasonable as to quantum. In the present case, regard being had to
the documents in its possession and the above criteria, the Court
finds it reasonable to award the sum of EUR 200 under this head.
- The
Court further finds it appropriate that the default interest should
be based on the marginal lending rate of the European Central Bank,
to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the remainder of the application
admissible;
- Holds that there has been a violation of Article
6 § 3 (c) of the Convention in conjunction with Article 6 §
1, on account of the lack of legal assistance to the applicant while
in police custody;
- Holds
(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 amounts, to be converted into Turkish
liras at the rate applicable at the date of settlement:
(i) EUR
1,500 (one thousand five hundred euros) plus any tax that may be
chargeable, in respect of non-pecuniary damage;
(ii) EUR
200 (two hundred 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 22 September 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally
Dollé Françoise Tulkens
Registrar President
