SECOND SECTION
CASE OF
KONAK v. TURKEY
(Application no.
3042/05)
JUDGMENT
STRASBOURG
3 September 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 Konak 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 Stanley Naismith, Section Registrar,
Having deliberated in private on 9 July 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
3042/05) 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 Nihat Konak (“the applicant”), on
19 November 2004.
The applicant was represented by Mr M. A. Kırdök,
a lawyer practising in Istanbul. The Turkish Government (“the Government”) were
represented by their Agent.
On 20 January 2011 the application was
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, who was born in 1964, is currently
serving his prison sentence in the Tekirdağ Prison.
On 26 March 1998, following a house search and
the seizure of certain items, the applicant was taken into police custody on
suspicion of being a member of the TKP/ML-TIKKO (Communist Party of Turkey//Marxist-Leninist Turkish Workers and
Peasants’ Liberation Army), an illegal organisation.
According to the applicant’s statements, he was
questioned by police officers on an unspecified date but exercised his right to
remain silent. During the questioning, he was not provided with a lawyer.
In the meantime, on 29 March 1998, a certain
co-accused L.L. was confronted with the applicant, in the absence of a lawyer,
and identified him as the secretary of the Marmara District and the person
responsible for the Istanbul branch of the organisation.
On 1 April 1998, the applicant and twenty-two
other accused persons were examined by a doctor who noted that none of them
showed signs of physical violence apart from three of them, including L.L.
According to the medical report, L.L. had a three-centimetre ecchymosis on her
back and face.
On the same day, the applicant was brought before
the public prosecutor and the investigating judge at the Istanbul State
Security Court where he denied the allegations, in the absence of his lawyer.
In his statements, the applicant also mentioned that he had not been provided
with a lawyer during his police custody despite his request to that effect. He
also denied the confrontation and identification records in his statements made
to the public prosecutor. After the questioning was over, the investigating
judge remanded the applicant in custody.
On 21 April 1998 the Istanbul Public Prosecutor
issued an indictment, charging the applicant under section 168 of the former
Turkish Criminal Code with being a leader of an armed organisation.
On 6 July 1998 the applicant was released
pending trial.
On 26 October 2001 the first-instance court
convicted the applicant as charged.
On 19 November 2001 the applicant was detained
to serve his prison sentence.
On 14 February 2002 the Court of Cassation
quashed the conviction for lack of reasoning.
On 26 December 2003 the Istanbul State Security
Court once again convicted the applicant as charged and sentenced him to
eighteen years and nine months’ imprisonment. It noted that, according to the
confrontation and identification records, certain of his co-accused, namely
M.Ş., L.L., T.Ö. and M.Ş., had identified the applicant as the
district leader of the organisation. It further found it established that he
had taken part in a number of the organisation’s activities such as hanging
illegal banners, throwing Molotov cocktails and participating in illegal
demonstrations. The court concluded that the applicant had acted as district
leader of the organisation in Istanbul.
On 25 May 2004 the Court of Cassation upheld the
conviction.
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 statements made to the
police by some of the co-accused persons, allegedly which had been taken under
duress. Invoking Article 6 § 2, the applicant further complained that the
national authorities were biased because they had failed to prove that he was
guilty and that they convicted him in the absence of sufficient evidence.
The Government contested the allegations.
The Court notes that 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.
In so far as the applicant argued that he had
been denied legal assistance during his police custody, the Court notes 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 v. Turkey [GC], no. 36391/02, §§ 56-63, ECHR 2008, and 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 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 26 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,
and Tezcan Uzunhasanoğlu v. Turkey, no. 35070/97, § 23, 20
April 2004).
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
The applicant claimed 40,000 euros (EUR) in
respect of non-pecuniary damage. He further claimed 4,720 Turkish liras
(TRY) for legal fees (approximately EUR 2,000) and TRY 490 (EUR 200) for costs
and expenses. In respect of his claim for legal fees, the applicant’s lawyer
submitted an invoice.
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
Salduz, cited above, § 72).
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 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 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, to be converted into the currency of the respondent State 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;
5. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 3 September
2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Guido
Raimondi
Registrar President
