SECOND SECTION
CASE OF
HİKMET YILMAZ v. TURKEY
(Application no.
11022/05)
JUDGMENT
STRASBOURG
4 June 2013
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 Hikmet Yılmaz v. Turkey,
The European Court of Human
Rights (Second Section), sitting as a Chamber composed of:
Guido Raimondi, President,
Danutė Jočienė,
Peer Lorenzen,
Dragoljub Popović,
Işıl Karakaş,
Nebojša Vučinić,
Paulo Pinto de Albuquerque, judges,
and Françoise Elens-Passos, Acting Section
Registrar,
Having deliberated in private on 7 May 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
11022/05) 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 Hikmet Yılmaz (“the
applicant”), on 28 February 2005.
The applicant was represented by Mr R Jespers, a
lawyer practising in Antwerp. The Turkish Government (“the Government”) were
represented by their Agent.
On 20 September 2011 the application was declared
partly inadmissible and the complaints concerning the lack of legal assistance
to the applicant during his police custody and his right to a fair trial were
communicated to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1962 and lives in Belgium.
On 26 June 2002 the applicant was arrested at the
Istanbul Atatürk Airport on suspicion of membership of the PKK (the Kurdistan
Workers’ Party), an illegal organisation.
On 27 June 2002 the applicant was interrogated at
the Anti-Terrorism Branch of the Istanbul Security Directorate, in the absence
of a lawyer. According to a form explaining arrested persons’ rights which the
applicant signed, he was informed of the charges against him and of his right
to remain silent. In his statement, the applicant admitted his involvement in
the PKK. He explained that he had moved to Italy for financial reasons and that
while he was in Milan he had met with a certain A.T., who had helped him in
finding a job and obtaining a residence permit. The applicant stated that while
he was living in Milan, he had distributed leaflets on behalf of the PKK and
organised information meetings about the illegal organisation.
On 28 June 2002 the applicant was questioned by
the public prosecutor at the Istanbul State Security Court in the absence of a
lawyer and he repeated the statement he had made to the police. Later on the
same day, the applicant was further questioned by the investigating judge at
the Istanbul State Security Court, still in the absence of a lawyer. The
applicant admitted to his activities in the illegal organisation and largely
repeated his statement to the police. At the end of the questioning, the judge
ordered his pre-trial detention. The applicant was then allowed to have access
to a lawyer.
On 3 July 2002 the public prosecutor at the
Istanbul State Security Court filed an indictment with that court, accusing the
applicant of membership of the PKK, an offence under Article 168 § 2 of the
former Criminal Code (Law no. 765) and Section 5 of the Prevention of Terrorism
Act (Law no. 3713).
In his defence submissions, the applicant denied the
charges against him and argued that his police statement had been taken under
duress. He also stated that he had still been under the influence of the
pressure exerted on him by the police during his questioning by the public
prosecutor and the investigating judge respectively. The applicant further
called a witness to attest to his innocence.
On 13 November 2002 the Istanbul State Security
Court ordered the applicant’s release from pre-trial detention.
On 5 November 2003 the Istanbul State Security
Court found the applicant guilty as charged and sentenced him to twelve years
and six months’ imprisonment. In convicting the applicant, the court took into
consideration the self-incriminating statements he had made before the police,
the public prosecutor and the investigating judge respectively. The court
further relied on a classified information note submitted by the Ministry of
the Interior regarding the applicant’s activities within the PKK. It also took
into account the police statement of another accused, namely A.T., who had been
convicted of being a member of the PKK in 2001 by the Diyarbakır State
Security Court. In this statement, A.T. had given a detailed account of the
applicant’s activities in the PKK.
The applicant appealed. In his appeal petition,
he denied being involved in the activities of the PKK and claimed that he was
innocent.
On 8 July 2004 the Court of Cassation, after holding
a hearing, upheld the judgment of the first-instance court. The decision, which
was pronounced on 14 July 2004, was deposited with the registry of the
first-instance court on 31 August 2004.
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. In this respect, he relied on Article 6 § 3
(c) of the Convention. He also maintained that his conviction had been based on
a classified document, submitted by the Ministry of Interior. Finally, under
Article 6 § 3 (d), the applicant argued that he had not been given an
opportunity to cross-examine one of the co-accused persons, who had given an
incriminating statement against him.
A. Admissibility
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 this part of the
application was introduced outside the six months time-limit. In this respect,
they stated that although the decision of the Court of Cassation had been
pronounced on 14 July 2004, the application was introduced with the Court
on 28 February 2005, more than six months later.
As to the Government’s plea of non-exhaustion,
the Court reiterates that it has already examined and rejected the Government’s
preliminary objections in similar cases (see, in particular, Halil Kaya
v. Turkey, no. 22922/03, § 14,
22 September 2009). The Court finds no particular circumstances in the
instant case which would require it to depart from its findings concerning the
above-mentioned application.
As to the objection concerning the failure of
the applicant to comply with the six months time-limit, the Court notes that
the decision of the Court of Cassation was deposited with the Registry of the
first-instance court on 31 August 2004. 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, Okul v. Turkey
(dec.), no. 45358/99, 4 September 2003). Accordingly,
in the present case the applicant lodged his application to the Court within
the six months time-limit, as required by Article 35 § 1 of the Convention. In
conclusion, this objection cannot be upheld either.
The Court further notes that the remainder of
the application 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.
B. Merits
The applicant stated that the restriction on his
right to legal assistance during his police custody had breached his right to a
fair trial.
. The
Government contested the allegations. In particular, they stated that the
restriction imposed on the applicant’s access to a lawyer during his police
custody had not infringed his right to a fair trial under Article 6 of the
Convention.
22. The Court observes that at the material time, the
restriction imposed on the applicant’s right to legal assistance 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). 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 in the present case.
Having regard to its finding above and referring
to paragraph 28 below, the Court, without taking a position on the remaining
complaints raised by the applicant regarding the fairness of the proceedings,
considers that it is unnecessary to examine them (see Geçgel and Çelik v.
Turkey, nos. 8747/02 and 34509/03, § 16, 13 October 2009, Tezcan
Uzunhasanoğlu v. Turkey, no. 35070/97, § 23, 20 April 2004).
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
The applicant claimed 8,000 euros (EUR) in
respect of pecuniary damage and EUR 5,000 in respect of non-pecuniary damage.
He further claimed EUR 6,500 for legal fees and EUR 266.20 for costs and
expenses.
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. 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 respect of non-pecuniary damage.
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).
As regards costs and expenses, the Court
reiterates that 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 are reasonable as to quantum. Taking into account the
awards made in comparable cases (see Şaman v. Turkey, no. 35292/05, § 45, 5 April 2011; Bolukoç
and Others v. Turkey, no. 35392/04, § 47, 10 November 2009; Gürova v.
Turkey, no. 22088/03, § 21, 6 October 2009; and Salduz, cited above,
§ 79), the Court finds it reasonable to award EUR 1,000 under this head.
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 remainder of the application
admissible;
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
remaining complaints raised under Article 6 of the Convention;
4. Holds
(a) that the respondent State is to pay the
applicant, within three months of the date on which the judgment becomes final
in accordance with Article 44 § 2 of the Convention, the following
amounts:
(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;
5. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 4 June 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Guido
Raimondi
Acting Registrar President
