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SECOND
SECTION
CASE OF TAŞÇIGİL v. TURKEY
(Application
no. 16943/03)
JUDGMENT
STRASBOURG
3 March 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 Taşçıgil
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 Françoise Elens-Passos,
Deputy Section
Registrar,
Having
deliberated in private on 10 February 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 16943/03) 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 Fırat Taşçıgil
(“the applicant”), on 9 April 2003. The applicant
was represented by Mr M. Nacak, a lawyer practising in
Diyarbakır. The Turkish Government (“the Government”)
were represented by their Agent.
- On
16 October 2007 the Court declared the application partly
inadmissible and decided to communicate to the Government the
complaints concerning the alleged unfairness of
the criminal proceedings against the applicant on account of the use
made of computer hard discs which were found in the flats raided by
the police, the use by the Diyarbakır State Security Court of
his statements allegedly taken under duress in the absence of legal
assistance during his detention in police custody, and the
non communication of the observations of the Principal Public
Prosecutor at the Court of Cassation. It also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1981 and lives in Diyarbakır.
- On
14 March 1999 the police carried out an operation against Hizbullah,
an illegal organisation, in Mardin. At around 3 a.m. the police
raided a flat after receiving information from a certain A.T., who
was allegedly a member of Hizbullah. During the search conducted in
the apartment, three weapons with their cartridges and three computer
hard discs, among other objects, were found. According to information
retrieved from one of these hard discs, the applicant was allegedly
involved in Hizbullah and had been giving religious lessons to
children in the Kuba mosque in Diyarbakır.
- On
5 June 1999 the public prosecutor at the Diyarbakır State
Security Court drew up a list of the material seized during the raid
in Mardin in order to place it in the custody of the State Security
Court. The material included the computer hard discs.
- On
18 October 1999 at around 8.30 p.m. the applicant was arrested while
leaving the Kuba mosque in Diyarbakır along with four other
persons. According to the arrest report, he was arrested as part of
the investigation being conducted into Hizbullah.
- On
19 October 1999 the security forces conducted a search of the
applicant's house. According to the house search and seizure report
signed by three police officers and the applicant's father, nine
books with religious content and four tapes were found in the
apartment.
- On
25 October 1999 the applicant made statements to the police.
According to these submissions, the applicant admitted that he was
involved in the activities of Hizbullah.
- On
26 October 1999 the applicant was examined by a doctor in a health
clinic in Diyarbakır, along with four other suspects. The doctor
observed no sign of ill-treatment on the applicant's person.
- On
the same day the applicant was brought before the public prosecutor
and subsequently a single judge at the Diyarbakır State Security
Court and was questioned about his affiliation to Hizbullah. The
applicant maintained that he was not a member of Hizbullah and
denied that he had given religious lessons on behalf of this
organisation. As regards the books found in his apartment, the
applicant contended that he had been a student in an İmam Hatip
High School
and that he had bought them at a book fair. The applicant contended
that he had been blindfolded in police custody and forced to sign the
document allegedly containing his statements.
- On
the same day, the judge remanded the applicant in custody. 12. On
2 November 1999 the public prosecutor at the Diyarbakır State
Security Court filed a bill of indictment against six persons,
including the applicant, charging them with membership of Hizbullah
under Article 168 of the former Criminal Code and Section 5 of Law
no. 3713.
- On
16 December 1999 the applicant made statements before the
first-instance court. He maintained that one of the other accused was
his schoolmate and that he did not know the other persons. He stated
in this connection that he had no affiliation with Hizbullah. The
applicant also denied the accuracy of his police statements, alleging
that they had been made under duress. He contended that he had been
in the mosque for prayer and that he had not given religious lessons
to children there. The applicant lastly submitted that the tapes
which had allegedly been found in his apartment did not belong to
him.
- On
the same day, the State Security Court ordered the applicant's
release pending trial.
- On
17 January 2000 the police carried out operations against Hizbullah
in Istanbul. Security forces raided an apartment where three leaders
of Hizbullah lived. One of the leaders was killed and two others were
captured. The police also found several hard discs containing
information about the organisation. On one of these hard discs a
personal history form belonging to the applicant was found.
- On
19 October 2000 the Diyarbakır State Security Court ordered the
detention of the applicant in absentia.
- On
21 July 2001 at 8.15 p.m. the applicant was arrested under the
detention order of 19 October 2000 and subsequently detained pending
trial.
- On
8 November 2001 the public prosecutor at the State Security Court
made his submissions on the merits of the case. In respect of the
applicant, the public prosecutor submitted that he had been involved
in the activities of Hizbullah, had given religious lessons to
children in the Kuba mosque and had provided a personal history form
to Hizbullah, relying on the information contained in the hard discs
found during the police operations of 14 March 1999 and 17 January
2000.
- On
23 March 2002 the applicant's representative submitted the
applicant's reply to the public prosecutor's submissions of
8 November 2001. He contended, inter alia, that the
personal history form contained in the hard disc found in Istanbul
could not be relied on in evidence, as there was nothing to prove
that the applicant had given this information to Hizbullah. The
lawyer further noted that it was not clear how the hard discs had
been seized and that transcription of these discs had not been
undertaken by experts. He also maintained that the applicant's
statements to the police could not be used as evidence against him as
he had not subsequently reiterated these statements before the
judicial authorities.
- On
16 May 2002 the Diyarbakır State Security Court convicted the
applicant of membership of Hizbullah and sentenced him to
twelve years and six months' imprisonment. It noted that, according
to the information found in one of the computer hard discs in Mardin,
the applicant was giving religious lessons to children and that
according to his personal history form found in a hard disc in
Istanbul, he was involved in Hizbullah activities in the Aksakal
mosque. The court further observed that five persons who had also
been accused of membership of Hizbullah had mentioned the applicant
in their statements to the police and that books written by the
Ayatollah Khomeini, the founder of the Islamic Republic of Iran, had
been found in the applicant's house. The State Security Court lastly
noted that the applicant had accepted, in his statements to
the police, that he had had an affiliation with Hizbullah.
- On
the same day the applicant appealed.
- On
an unspecified date the public prosecutor at the Court of Cassation
submitted his written opinion (tebliğname) on the merits
of the appeal. This opinion was not served on the applicant.
- On
17 December 2002 the Court of Cassation upheld the judgment of the
Diyarbakır State Security Court.
- On
29 January 2006 the applicant was released conditionally.
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLE 6 OF THE CONVENTION
- The
applicant submitted under Article 6 §§ 1 and 3 (c) of the
Convention that he had been denied legal assistance while in police
custody and that he had been convicted on the basis of his statements
to the police which had been made under duress.
The
applicant alleged under Article 6 § 1 of the Convention that the
evidence used against him for his conviction had not been handed over
to the judicial authorities promptly, thus casting doubt on its
reliability. He further submitted under the same provision that the
transcription of the hard discs had not been undertaken by experts,
but by the police.
The
applicant lastly complained under the same head that the written
observations of the Principal Public Prosecutor at the Court of
Cassation on the merits of his appeal had not been served on him.
A. Admissibility
1. Use of the computer hard discs as evidence by the
Diyarbakır State Security Court
- The
Government argued that the applicant had failed to exhaust the
domestic remedies available to him, within the meaning of Article 35
§ 1 of the Convention. They maintained that the applicant
had not raised the substance of this complaint before the domestic
courts.
- The
Court observes that the applicant submitted his complaints concerning
the hard discs to the first-instance court with his submissions of 23
March 2002. The Court therefore finds that the
applicant raised this complaint before the national authorities.
- However,
the Court notes that it has already examined a similar complaint and
found it manifestly ill-founded in the case of Ayçoban and Others
v. Turkey ((dec.), nos. 42208/02, 43491/02 and 43495/02, 13
January 2005). It finds no elements, in the present case, which would
allow it to conclude that the State Security Court acted in an
arbitrary or unreasonable manner in assessing the evidence found
during the police operations of 14 March 1999 and 17 January
2000.
- It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
2. Use by the Diyarbakır State Security Court of
statements allegedly taken under duress, in the absence of legal
assistance, and non-communication of the written opinion of the
Principal Public Prosecutor at the Court of Cassation
- The
Government argued that the applicant had also failed to raise
the substance of these complaints before the national authorities.
- The
Court observes at the outset that on 26 October and 16 December
1999 the applicant maintained before the judicial authorities that he
had been coerced into signing certain documents while in police
custody.
- The
Court further notes, as regards the complaint concerning the absence
of legal assistance available to the applicant in police custody,
that the applicant's right of access to a lawyer was
restricted pursuant to section 31 of Law no. 3842, as he was
accused of committing an offence falling within the jurisdiction of
the State Security Courts. The Court further notes that the applicant
did not allege that the law had been incorrectly applied. Therefore,
in the Court's view, the applicant's request for a lawyer while in
police custody or his subsequent complaint as to the absence of legal
assistance before the national authorities would be devoid of any
prospect of success (see, mutatis mutandis, Özel v.
Turkey, no. 42739/98, § 25, 7 November 2002).
- Finally,
regarding the applicant's complaint concerning the failure to
communicate to him the observations of the Principal Public
Prosecutor at the Court of Cassation, the Court reiterates that it
has already examined and rejected similar preliminary objections by
the Government (see, for example, Maçin v. Turkey (no. 2),
no. 38282/02, § 20, 24 October 2006).
- In
view of the above, the Court rejects the Government's preliminary
objections and declares this part of the application admissible.
B. Merits
- As
regards the complaint concerning the use by the Diyarbakır State
Security Court of statements allegedly taken under duress and in the
absence of legal assistance, the Court observes at the outset that,
on the basis of the case file, it cannot be concluded beyond
reasonable doubt that the applicant was subjected to ill-treatment or
was otherwise coerced into making statements in police custody
(contrast Örs and Others v. Turkey, no. 46213/99, §§
59-60, 20 June 2006). The Court therefore considers that the
examination of this part of the application should be confined to the
use by the trial court of statements made to the police in the
absence of a lawyer.
- The Court further reiterates
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). 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. There has therefore been a violation of Article 6 §
3 (c) of the Convention in conjunction with Article 6 § 1.
- As
to the applicant's complaint that the failure to communicate to him
the Principal Public Prosecutor's written opinion had infringed his
right to a fair trial, the Court notes that it has already examined
the same grievance in the past and has found a violation of Article 6
§ 1 of the Convention (see, for example, Göç v.
Turkey ([GC], no. 36590/97, § 55, ECHR 2002-V; Ayçoban
and Others v. Turkey, nos. 42208/02, 43491/02 and
43495/02, § 28, 22 December 2005). It
finds no reason to depart from that conclusion in the present
case. Consequently, the Court concludes that there has been
a violation of this provision.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- The
applicant claimed 20,000 euros (EUR) in respect
of non-pecuniary damage. He further claimed EUR 25,000 in respect of
pecuniary damage and EUR 1,500 for the costs and expenses
incurred before the Court.
- The
Government contested the applicant's claims.
- As
regards the alleged pecuniary damage sustained by the applicant and
the costs, the Court observes that the applicant did not produce any
document in support of his claims, which the Court, accordingly,
dismisses. As to the non-pecuniary damage, ruling on an
equitable basis, the Court awards the applicant EUR 2,000.
- 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 the
applicant so request (see Salduz,
cited above, § 72).
- The
Court finally 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 admissible the complaints concerning
the alleged unfairness of the criminal proceedings against the
applicant on account of the lack of legal assistance during his
detention in police custody and the non-communication of the
observations of the Principal Public Prosecutor at the Court of
Cassation;
- Declares inadmissible the remainder of the
application;
- 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 he was in police custody;
- Holds that there has been a violation of Article
6 § 1 of the Convention, on account of the non-communication of
the written opinion of the Principal Public Prosecutor at the Court
of Cassation;
- 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, EUR 2,000 (two
thousand euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage, to be converted into the national currency of
the respondent Government 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;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 3 March 2009, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Françoise
Tulkens
Deputy Registrar President
