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SECOND
SECTION
CASE OF AMUTGAN v. TURKEY
(Application
no. 5138/04)
JUDGMENT
STRASBOURG
3
February 2009
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 Amutgan 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,
Nona Tsotsoria,
Işıl
Karakaş, judges,
and Sally
Dollé, Section
Registrar,
Having
deliberated in private on 13 January 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 5138/04) 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 Nusret Amutgan (“the
applicant”), on 29 December 2003.
- The
applicant was represented by Ms B Özpolat, a lawyer practising
in Gaziantep. The Turkish Government (“the Government”)
were represented by their Agent.
- On
4 January 2008 the Court declared the application partly inadmissible
and decided to communicate the complaint concerning the lack of legal
assistance to the applicant during his police custody to the
Government. It also decided to examine the merits of the application
at the same time as its admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1970 and is serving his prison sentence in the
Gaziantep H-type Prison.
- On
27 April 1998 the applicant was taken into custody during a military
operation carried out by the Turkish armed forces on suspicion of
being a member of an illegal armed organisation, namely the PKK (the
Workers' Party of Kurdistan). The applicant was detained at a
gendarme station, where he was questioned in the absence of a lawyer
and his detailed statement was recorded verbatim.
- In
the statement the applicant was quoted as having said that he had
joined the PKK on 13 February 1995 and that he had carried out a
number of armed activities since that date.
- On
6 May 1998 the applicant was brought before the public prosecutor and
subsequently the investigating judge. When questioned by the
prosecutor and the judge, in the absence of a lawyer, the applicant
confirmed the accuracy of the information contained in the statement
he had made at the gendarme station, and repeated that he had carried
out a number of armed activities. The applicant was placed in
detention on remand on the order of the investigating judge.
- On 15 June 1998 the public prosecutor at the Diyarbakır
State Security Court filed an indictment, charging the applicant with
the offence of carrying out activities for the purpose of bringing
about the secession of part of the national territory. He sought the
death penalty under Article 125 of the Criminal Code.
- The
trial of the applicant and his seven co-defendants began on 20 August
1998 before the Diyarbakır State Security Court. In the course
of the trial, the applicant was represented by his lawyer. He
informed the court that he had joined the PKK in 1995 and had
received military training. He further admitted to certain charges
brought against him. The applicant also stated, during the hearings,
that he had been forced to put his thumbprint on the statement taken
from him at the gendarme station.
- On
28 November 2002 the Diyarbakır State Security Court found the
applicant guilty as charged and sentenced him to death. The death
penalty was commuted to a life sentence. The court found it
established, on the basis of, inter alia, the statements taken
from the applicant after his arrest and the testimony given by him
during the trial, that he had carried out a number of illegal
activities and had been involved in the killing and kidnapping of a
number of village guards.
- On
16 September 2003 the Court of Cassation dismissed the applicant's
appeal.
II. RELEVANT DOMESTIC LAW
- A
description of the relevant domestic law 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
- The
applicant alleged that his defence rights had been violated as he had
been denied access to a lawyer during his police custody. He relied
on Article 6 § 3 (c) of the Convention, which provides:
“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. Admissibility
- The
Court notes that the remainder 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 stated that the restriction on his right to legal
assistance while in police custody had breached his right to a fair
trial. He maintained that he was illiterate and therefore he did not
know what was written in his statement taken by the gendarmes. He
also stated that this statement was not read out to him and that he
was forced to put his thumbprint on the statement to authenticate it.
- The
Government maintained in the first place that, in assessing whether
or not the trial was fair, regard should be had to the entirety of
the proceedings. As the applicant was represented by a lawyer during
the proceedings before the State Security Court and the Court of
Cassation, his right to a fair hearing had not been violated. The
Government further stated that, as the applicant was illiterate, his
statement taken by the gendarmes was read out to him. They underlined
the fact that his confessions during his custody period were not the
sole basis of the conviction.
- The
Court reiterates the basic principles laid down in the Salduz
judgment cited above (§§ 50-55).
- In
the present case, the Court notes that the restriction imposed on the
applicant's right of access to a lawyer was systematic and applied to
anyone held in custody in connection with an offence falling under
the jurisdiction of the State Security Courts. The Court observes
that the applicant had access to a lawyer after his detention on
remand and during the ensuing criminal proceedings, when he had the
possibility of challenging the prosecution's arguments. Nevertheless,
in convicting the applicant, the Diyarbakır Sate Security Court
relied heavily on the applicant's statements taken while he had been
in police custody, in the absence of a lawyer. Thus, in the present
case, the applicant was undoubtedly affected by the restrictions on
his access to a lawyer in respect of those statements. Neither the
assistance provided subsequently by a lawyer nor the adversarial
nature of the ensuing proceedings could cure this defect.
- In
sum, even though the applicant had the opportunity to challenge the
evidence against him at the trial and subsequently on appeal, the
absence of a lawyer while he was in police custody irretrievably
affected his defence rights.
- There
has therefore been a violation of Article 6 § 3 (c) of the
Convention in conjunction with Article 6 § 1 in the present
case.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 15,000 New Turkish liras (TRY) (approximately 7,700
euros (EUR)) in respect of pecuniary damage and TRY 30,000
(approximately EUR 15,400) in respect of non-pecuniary damage.
- The
Government contested these 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 the applicant EUR 1,500.
- 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 the
applicant so request (see, mutatis mutandis, Gençel
v. Turkey, no. 53431/99, § 27, 23 October 2003; Salduz,
cited above, § 72).
B. Costs and expenses
- Referring
to the Gaziantep Bar Association's scale of fees, the applicant's
representative claimed TRY 8,400 (approximately EUR 4,300),
covering 21 hours' legal work, spent in the preparation and
presentation of this case before the Court. She also claimed
TRY 1,825 (approximately EUR 940) for the costs and expenses. In
this respect, she submitted an invoice amounting to TRY 325
(approximately EUR 167) paid for translation.
- The
Government contested the claims.
- According
to 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 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 sum of EUR 1,000 to the applicant under this
head.
C. Default interest
- 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 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
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 3 February 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens
Registrar President
