SECOND SECTION

CASE OF ŞAHİN v. TURKEY

(Application no. 27303/09)

JUDGMENT

STRASBOURG

12 December 2017

This judgment is final but it may be subject to editorial revision.

In the case of Şahin v. Turkey,
The European Court of Human Rights (Second Section), sitting as a Committee composed of:
	Julia Laffranque, President,
	Jon Fridrik Kjølbro,
	Stéphanie Mourou-Vikström, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having deliberated in private on 21 November 2017,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 27303/09) 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 Deniz Şahin (“the applicant”), on 22 April 2009.
2.  The applicant was represented by Mr M. Tanzi, a lawyer practising in Ankara. The Turkish Government (“the Government”) were represented by their Agent.
3.  On 29 September 2010 the complaints concerning access to a lawyer during police custody and the length of the criminal proceedings were communicated to the Government.
4.  On 7 October 2016 the Vice-President of the Second Section invited the Government to submit further observations, if they so wished, following the judgment in Ibrahim and Others v. the United Kingdom ([GC], nos. 50541/08 and 3 others, ECHR 2016).
5.  The Government objected to the examination of the application by a Committee. After having considered the Government’s objection, the Court rejects it.
THE FACTS
Article I.	I.  THE CIRCUMSTANCES OF THE CASE
6.  The applicant was born in 1979 and lives in Adana.
7.  On 11 July 2000 the Adana Magistrate’s Court ordered the detention of the applicant in absentia.
8.  On 20 July 2000 the applicant was questioned by the gendarmerie in the absence of his lawyer. In his statement, the applicant gave a detailed description about his involvement in an illegal organisation and the activities in which he had taken part. Subsequently, he was brought before the public prosecutor at the Adana State Security Court. During the interview, the applicant stated, again in the absence of a lawyer, that his statements made to the gendarmerie had been correct.
9.  On 15 September 2000 the investigating judge at the Mardin Magistrate’s Court ordered the applicant’s pre-trial detention, again in the absence of a lawyer.
10.  On 24 October 2000 the public prosecutor lodged an indictment before the Adana State Security Court, charging the applicant under Section 125 of the former Criminal Code with carrying out activities with the aim of bringing about the secession of part of the national territory.
11.  On 25 October 2005 the Adana Assize Court convicted the applicant as charged.
12.  On 26 April 2006 the Court of Cassation quashed the conviction.
13.  On 6 November 2007 the Adana Assize Court found that, inter alia, on the basis of the applicant’s statements to the gendarmerie and the public prosecutor, the applicant had committed the offence under Section 125 of the former Criminal Code and sentenced him to life imprisonment.
14.  On 12 November 2008 the Court of Cassation upheld the conviction.
Article II.	II.  RELEVANT DOMESTIC LAW
15.  A description of the relevant domestic law concerning the right of access to a lawyer may be found in Salduz v. Turkey ([GC] no. 36391/02, §§ 27‑31, ECHR 2008).
16.  On 15 July 2003 Law no. 4928 repealed Section 31 of Law no. 3842, thus the restriction on an accused’s right of access to a lawyer in proceedings before the State Security Courts was lifted.
THE LAW
Article III.	I.  ALLEGED VIOLATION OF ARTICLE 6 §§ 1 and 3 (c) OF THE CONVENTION
17.  The applicant complained that he had not had access to a lawyer while in police custody. He further alleged that the criminal proceedings against them had been excessive. Article 6 §§ 1 and 3 (c) of the Convention, which, in so far as relevant, provides:
“1.  In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by [a] tribunal ...
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;”
18.  The Government contested those arguments.
Section 3.01	A.  Admissibility
19.  The Court notes that these complaints are 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.
Section 3.02	B.  Merits
(a)	1.  Access to a lawyer during police custody
20.  The applicant complained that he had been deprived of legal assistance pursuant to section 31 of Law no. 3842, as he was accused of committing an offence that fell within the jurisdiction of the State Security Courts.
21.  The Government submitted that the applicant had been represented by lawyers throughout the trial and as such had the possibility to present his arguments and challenge those put forward by the prosecution. Moreover, the trial court delivered its judgment on the basis of a number serious evidence, and not relied solely on the applicant’s statements to the police.
22.  The Court notes that the applicant’s access to a lawyer was restricted by virtue of Law No. 3842 and was as such a systemic restriction applicable at the time of the applicant’s arrest (Salduz v. Turkey ([GC] no. 36391/02, §§ 27‑31, § 56, ECHR 2008). The Court does not consider it necessary to examine whether the systematic nature of the restriction on the applicant’s right of access to a lawyer was, in itself, sufficient to find a violation of Article 6 §§ 1 and 3 (c) of the Convention, as, in any event, the Government have not offered any compelling reasons for the restriction or demonstrated that the absence of legal assistance at the initial stage of the investigation did not irretrievably prejudice the applicant’s defence rights (Salduz, cited above, § 58, and Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3 others, § 274, ECHR 2016) In that respect, the Court notes that in convicting the applicant, the first-instance court relied on his statements to the police and the public prosecutor. Moreover, it did not examine the admissibility of evidence at the trial. Likewise, the Court of Cassation dealt with this issue in a formalistic manner and failed to remedy this shortcoming.
23.  The foregoing considerations are sufficient to enable the Court to conclude that there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention.
(b)	2.  Length of proceedings
24.  The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention.
25.  The Government contended that the length of the proceedings could not be considered unreasonable in view of the complexity of the case, the number of accused and the seriousness of the charges against the applicant.
26.  The Court observes, at the outset, that a new domestic remedy has been established in Turkey since the application of the pilot judgment procedure in the case of Ümmühan Kaplan v. Turkey (no. 24240/07, 20 March 2012). The Court observes that in its decision in the case of Turgut and Others v. Turkey (no. 4860/09, 26 March 2013), it declared a new application inadmissible on the ground that the applicants had failed to exhaust the domestic remedies, that is to say the new remedy. In so doing, the Court in particular considered that this new remedy was, a priori, accessible and capable of offering a reasonable prospect of redress for complaints concerning the length of proceedings.
27.  The Court further points out that, in its judgment in the case of Ümmühan Kaplan (cited above, § 77), it stressed that it could nevertheless pursue the examination of such applications under the normal procedure in cases which had already been communicated to the Government prior to the entry into force of the new remedy. It further notes that in the present case the Government did not raise an objection in respect of the new domestic remedy. In view of the above, the Court decides to pursue the examination of the present application (see Rifat Demir v. Turkey, no. 24267/07, §§ 34‑36, 4 June 2013).
28.  The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicants and the relevant authorities (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999‑II).
29.  In the present case, the Court observes that the period to be taken into consideration began on 11 July 2000 with the detention order issued in respect of the applicant and ended on 12 November 2008 with the final decision delivered by the Court of Cassation. It thus lasted for nearly eight years and four months at two levels of jurisdiction, which each examined the case twice. It further notes that the case before the criminal court was not particularly complex. As to the conduct of the authorities, the Court observes that it took five years for the trial court to deliver its judgment. No sufficient explanation has been provided for those delays and no other explanation been offered as to whether the applicant bore any responsibility for the delay in the proceedings. Having regard to the documents in its possession, the Court also does not discern any delays that can be imputed to the applicant.
30.  The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Selek v. Turkey, no. 43379/02, § 24, 12 December 2006).
31.  Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement (Daneshpayeh v. Turkey, no. 21086/04, § 28, 16 July 2009, and Gürbüz and Özçelik v. Turkey, no. 11/05, § 24, 2 February 2016).
32.  There has accordingly been a breach of Article 6 § 1.
Article IV.	II.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION
33.  The applicant complained that the length of his police custody – which allegedly lasted fourteen days – had exceeded the reasonable time requirement. He further contended that there had been no effective remedy in domestic law whereby he could challenge the unlawfulness of his police custody. He also complained that he had had no enforceable right to compensation in accordance with Article 5 § 5.
34.  Relying on Article 6 § 1 of the Convention, the applicant alleged a violation of his right to a fair trial on the basis of the involvement of a military judge in part of his trial in the Adana State Security Court.
35.  Relying on Article 7, the applicant argued that the domestic courts had erred in the legal classification of his conduct and in application of the relevant provisions of the domestic law
36.  An examination by the Court of the material submitted to it does not disclose any appearance of a violation of these provisions. It follows that this part of the application is manifestly ill-founded and must be declared inadmissible pursuant to Article 35 §§ 3 and 4 of the Convention.
Article V.	III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
37.  The applicant sought pecuniary and non-pecuniary damage as well as costs and expenses, albeit without specifying the amount. He left it to the discretion of the Court to determine the amount (compare with Nagmetov v. Russia [GC], no. 35589/08, §§ 56-92, 30 March 2017).
38.  The Government submitted that his claims had neither been itemised nor substantiated.
39.  The Court observes that it has found a violation of Article 6 §§ 1 and 3 (c) of the Convention in the present case. It cannot speculate as to the outcome of the proceedings against the applicant if there had been no breach of the Convention (see Ibrahim and Others, cited above, § 315). The Court therefore makes no award in respect of pecuniary damage.
40.  The Court further notes that Article 311 of the Code of Criminal Procedure allows the possibility to reopen proceedings. It considers that the most appropriate form of redress would be the retrial of the applicants in accordance with the requirements of Article 6 of the Convention, should they so request (see Salduz, cited above, § 72, and Abdulgafur Batmaz v. Turkey, no. 44023/09, § 58, in fine, 24 May 2016). It further considers that in these circumstances the finding of a violation constitutes in itself sufficient just satisfaction.
41.  The Court finds, however, that the applicant must have suffered pain and distress which cannot be compensated solely by the Court’s finding of a violation in respect of the length of the proceedings against him. Ruling on an equitable basis, it therefore finds it appropriate to award the applicant the sum of 3,500 euros (EUR) in respect of non-pecuniary damage.
42.  As regards costs and expenses, the Court notes that the applicant has not submitted any legal or financial documents in support of his claim for costs and expenses. In accordance with Rule 60 § 2 of the Rules of Court, itemised particulars of all claims must be submitted, failing which the Court may reject the claim in whole or in part. Having regard to the absence of any documents, the Court dismisses the claim for costs and expenses.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1.  Declares the complaints concerning access to a lawyer during police custody and the length of the criminal proceedings admissible and the remainder of the application inadmissible;

2.  Holds that there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention;

3.  Holds that there has been a violation of Article 6 § 1 of the Convention on account of the length of the criminal proceedings;

4.  Holds that the finding of a violation of Article 6 §§ 1 and 3 (c) of the Convention constitutes in itself sufficient just satisfaction in respect of any non-pecuniary damage that may have been sustained by the applicant in relation to his complaint concerning denial of access to a lawyer during police custody;

5.  Holds
(a)  that the respondent State is to pay the applicant, within three months the following amount, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
EUR 3,500 (three thousand and five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage caused by the excessive length of the criminal proceedings;
(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;

6.  Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 12 December 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Hasan Bakırcı	Julia Laffranque
	Deputy Registrar	President