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FOURTH
SECTION
CASE OF SEYİTHAN DEMİR v. TURKEY
(Application
no. 25381/02)
JUDGMENT
STRASBOURG
28
July 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 Seyithan Demir v.
Turkey,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Giovanni Bonello,
Ljiljana
Mijović,
Päivi Hirvelä,
Ledi
Bianku,
Işıl Karakaş, judges,
and
Lawrence Early,
Section Registrar,
Having
deliberated in private on 7 July 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 25381/02) 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 Seyithan Demir
(“the applicant”), on 21 March 2002.
- The
applicant was represented by Ms T. Aslan, a lawyer practising in
Izmir. The Turkish Government (“the Government”) were
represented by their Agent.
- On
6 December 2007 the President of the Fourth Section decided to give
notice of the application to the Government. It was 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 1980 and lives in Antalya.
- On
24 May 2000 the applicant started his compulsory military service.
- On
10 July 2000 two conscripts, Mr Karaman and Mr Gezici, informed their
superiors and other soldiers that the applicant had made several
improper comments to them.
- Mr
Karaman claimed that the applicant had shown him a map of Turkey
indicating how they were going to establish Kurdistan and put up its
flag and had also said that the Special Forces and soldiers were
killing their people and innocent children. According to Mr Karaman,
the applicant also stated that “during target practice they can
if they want shoot right on target but that they would not”.
- Mr
Gezici alleged that the applicant had kept telling him that they were
going to establish Kurdistan and that he had a commando physique and
they should take him to the camps.
- On
the same day the head of the military unit heard the applicant,
Mr Karaman and Mr Gezici, Mr Dere and Mr Sancı.
- The
applicant maintained that he had never made such remarks and that it
was nothing but lies and smears. He stated that he did not have any
quarrel with the people who had accused him.
- Subsequently, on 15 December 2000, the public
prosecutor at the Izmir State Security Court filed
a bill of
indictment
with that court charging the applicant with the offence
defined in section 8 of the Anti Terrorism Act, namely,
disseminating separatist propaganda.
- On
18 December 2000 the Izmir State Security Court held a preparatory
hearing at which it decided on procedural matters, namely issuing
rogatory letters to various authorities in order to secure the
applicant's and the witnesses' statements. The next hearing was fixed
for 6 February 2001.
- On
2 February 2001 the applicant appeared before the Erzurum State
Security Court. The indictment was read out to him. The applicant
denied the accusations against him and claimed that Mr Karaman, with
whom he had had an argument, was lying. He maintained that he had
never uttered the words mentioned in the indictment. The record of
the hearing noted that the applicant had requested to be exempted
from the obligation to appear at the hearing (duruşmadan
vareste tutulma). The applicant was not represented by a lawyer.
- On
various dates the rogatory courts heard evidence from Mr Sancı,
Mr Gezici, Mr Karaman and Mr Dere. In their statements, Mr Sancı
and Mr Dere both affirmed, inter alia, that they had not
heard the applicant making the impugned remarks but had been informed
of them through Mr Gezici and Mr Karaman.
- In
his statement Mr Gezici claimed, inter alia, that the
applicant had told him “we have camps in the east. Let me take
you to them. You have a commando physique”. He stated that the
applicant was smiling and it looked like a joke. However, he started
to take his words seriously when he heard what the applicant had said
to Mr Karaman and decided to complain about him to their hierarchical
authorities.
- In
his statement Mr Karaman claimed, inter alia, that on various
occasions the applicant had told him “Turkish soldiers are
traitors, they kill our people. Special Forces have killed our people
and blame it on us. Before military service I was receiving
instruction at a camp.” He further claimed that the applicant
was pointing at the eastern part of Turkey on the map and saying “We
are going to divide Turkey and establish Kurdistan”.
- On
6 February, 27 March, 10 May and 26 June 2001 the first-instance
court held hearings, in the absence of the applicant, during which
the statements of the applicant and two of the witnesses taken by way
of rogatory letters were read out.
- During
the trial the applicant was doing his military service in Erzurum.
- In
the hearing held on 4 September 2001 the statements of the other two
witnesses, taken by way of rogatory letters, were read out. The
prosecutor did not ask for an additional investigation and read out
his observations on the merits of the case. On the same day the
court, on the basis of witness testimonies, considered that the
applicant had disseminated separatist propaganda and convicted him as
charged. He was sentenced to one year's imprisonment and to a heavy
fine. This decision was served on the applicant on 24 September
2001.
- On
28 September 2001 the applicant appealed.
- On
8 October 2001 the applicant hired a lawyer.
- On
31 October 2001 the applicant's lawyer filed an appeal.
- On
8 January 2002 the principal public prosecutor at the Court of
Cassation submitted his written opinion to that court. The prosecutor
asked the court to dismiss the applicant's legal representative's
appeal, in accordance with Article 317 of the Code on Criminal
Procedure, on the ground that it had been submitted out of time. This
opinion was not communicated to the applicant.
- On
28 January 2002 the Court of Cassation dismissed the applicant's
objections and upheld the judgment of the first-instance court. In
its judgment the court stated, inter alia, that, having regard
to the evidence and the conviction and the assessment of the
first-instance court in line with the conclusions of its
investigation, the applicant's conviction had been in accordance with
the procedure and the law.
- On
17 April 2002 the principal public prosecutor at the Court of
Cassation dismissed a request by the applicant's lawyer for
rectification of the Court of Cassation's judgment.
- On
7 March 2003 the applicant started serving his prison sentence.
- The
applicant paid the fine, in three instalments, on 26 March 2003,
29 April 2003 and on 27 May 2003.
- By
an additional judgment, dated 25 July 2003, the Izmir State Security
Court, taking into account that section 8 of Law no. 3713 had
been abolished pursuant to Law no. 4928, annulled the applicant's
conviction and ordered his immediate release. On the same day the
applicant was released.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- Article
226 of the Code of Criminal Procedure, in force at the material time,
provided as follows:
“1. If the accused or his lawyer, who
has a power of attorney in this respect, so requests, the court may
exempt the accused from the obligation to be present during the
hearing.
2. ... the accused shall be questioned by a
judge in another judicial district, acting on rogatory letters, about
the principal facts of the case.
4. Even if the accused does not so request,
if the accused has been remanded in custody or is serving a sentence
for another crime, the trial court can decide that the accused shall
be questioned by a judge in another judicial district, acting on
rogatory letters.
5. The public prosecutor and the accused's lawyer
shall be notified of the date set for questioning. There is no
obligation for them to be present during the questioning.
6. The record of the questioning shall be read out
at the hearing.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- Under
Article 6 §§ 1 and 3 of the Convention, the applicant
argued that he had been denied a fair hearing on account of the
failure of the domestic courts to respect the rights of the defence.
In this connection the applicant submitted that he had been deprived
of his right to attend the hearings and the opportunity to examine
the prosecutor's witnesses or to call witnesses or adduce evidence on
his own behalf. He stated in this regard that the first-instance
court had convicted him without ever hearing him or the prosecutor's
witnesses. He further complained that he had not been sent either the
public prosecutor's observations before the first instance court
or the opinion of the principal public prosecutor at the Court of
Cassation. In addition, the applicant maintained that
in his case the first-instance court had arbitrarily failed to apply
Article 59 of the Criminal Code and that he had been denied
the assistance of a lawyer since the Court of Cassation had failed,
without reason, to examine the objections submitted by his legal
representative.
- The
relevant parts of Article 6 §§ 1 and 3 of the Convention
read as follows:
“1. In the determination ... of any
criminal charge against him, everyone is entitled to a fair ...
hearing ...
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 ...;
(d) to examine or have examined witnesses
against him and to obtain the attendance and examination of witnesses
on his behalf under the same conditions as witnesses against him;”
A. Admissibility
- The
Government asked the Court to dismiss the applicant's complaint
regarding his inability to participate in the hearings before the
first-instance court for failure to comply with the six-month rule
because he had failed to lodge his application within six months
following the date on which he had appeared before the rogatory
court.
- The
Court reiterates that, in assessing whether or not a trial was fair,
regard should be had to the entirety of the proceedings (see John
Murray v. the United Kingdom, 8 February 1996, § 63,
Reports of Judgments and Decisions 1996 I). In the
present case the applicant lodged his application with the Court
within six months of the delivery of the final decision in the case
given by the Court of Cassation. He therefore lodged his application
to the Court within the six-month time-limit, as required by Article
35 § 1 of the Convention. Consequently, the Government's
objection cannot be upheld.
- Moreover,
the Court notes that this part 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
1. The parties' observations
- The
Government maintained that the applicant's trial had been fair. In
this connection they submitted, giving examples, that the criminal
procedure in Turkey provided equal rights to the defence and the
prosecution. In particular, the Government claimed that the applicant
had asked to be exempted from the obligation to attend the hearings
and had failed to ask for witnesses to be heard before the
first-instance court.
- The
applicant maintained his allegations. In particular, he submitted
that the trial had been conducted in his absence. In this connection
he pointed out that he had been unable to leave his army barracks
since he had been doing his military service during the trial and
that it was up to the trial court to secure his attendance before it.
2. The Court's assessment
- The
Court reiterates that although this is not expressly mentioned in
paragraph 1 of Article 6, the object and purpose of the Article taken
as a whole show that a person “charged with a criminal offence”
is entitled to take part in the hearing. Moreover, sub-paragraphs
(c), (d) and (e) of paragraph 3 guarantee to “everyone
charged with a criminal offence” the right “to defend
himself in person”, “to examine or have examined
witnesses” and “to have the free assistance of an
interpreter if he cannot understand or speak the language used in
court”, and it is difficult to see how he could exercise these
rights without being present (see Sejdovic v. Italy [GC],
no. 56581/00, § 81, ECHR 2006 II and the references
therein).
- In
this connection the Court further reiterates that neither the letter
nor the spirit of Article 6 of the Convention prevents a person from
waiving of his own free will, either expressly or tacitly, the
entitlement to the guarantees of a fair trial (see Kwiatkowska v.
Italy (dec.), no. 52868/99, 30 November 2000). However,
if it is to be effective for Convention purposes, a waiver of the
right to take part in the trial must be established in an unequivocal
manner and be attended by minimum safeguards commensurate to its
importance (see Poitrimol v. France, 23 November 1993, §
31, Series A no. 277 A). Furthermore, it must not run counter to
any important public interest (see Håkansson and Sturesson
v. Sweden, 21 February 1990, § 66, Series A no. 171-A).
The Court has also pointed out that, before an accused can be said to
have implicitly, through his conduct, waived an important right under
Article 6 of the Convention, it must be shown that he could
reasonably have foreseen what the consequences of his conduct would
be (see Jones v. the United Kingdom (dec.), no. 30900/02,
9 September 2003).
- As
the requirements of paragraph 3 of Article 6 are to be seen as
particular aspects of the right to a fair trial guaranteed by
paragraph 1, the Court will examine the complaint under both
provisions taken together (see, among other authorities, Van
Geyseghem v. Belgium [GC], no. 26103/95, § 27,
ECHR 1999 I).
- In
the present case the Court observes that the applicant was doing his
compulsory military service in Erzurum throughout the criminal
proceedings held before the Izmir State Security Court. It further
observes that, at the outset, he was not invited to attend the
hearings before the Izmir State Security Court which tried and
sentenced him. The Erzurum State Security Court had been asked to
take evidence from him in his defence, under the powers delegated to
it by the Izmir State Security Court (see paragraph 12 above).
- The
Court further observes that, according to the record of the hearing
held before the Erzurum State Security Court on 2 February 2001, the
applicant did give evidence to this court and requested to be
exempted from the obligation to appear at the trial court (see
paragraph 13 above). The Court points out that the fact that
the applicant raised no objection when the rogatory court took his
statement does not signify that he implicitly waived his right to
defend himself or to appear before the Izmir State Security Court
(see, for example, Kahraman v. Turkey, no. 42104/02, §
31, 26 April 2007). Moreover, having regard to the fact that the
applicant was not assisted by a lawyer at that hearing and that the
rogatory court neither read out his rights, including his right to a
lawyer, nor provided information to the applicant regarding the
consequences of such a request, the Court considers that the
applicant, as a layman, cannot have been expected to appreciate that
such a demand would result in his being tried and convicted in his
absence. Thus, the circumstances surrounding the applicant's decision
deprived it of any validity from the point of view of the Convention.
In such circumstances, it cannot be said, therefore, that the
applicant unequivocally and intentionally waived his rights under
Article 6 (see Jones, cited above, and, mutatis mutandis,
Pfeifer and Plankl v. Austria, 25 February 1992, § 38,
Series A no. 227).
- Moreover,
the Court considers that, in view of the prominent place held in a
democratic society by the right to a fair trial (see, among many
other authorities, Delcourt v. Belgium, 17 January 1970, §
25 in fine, Series A no. 11), Article 6 of the Convention
imposes on every national court an obligation to check whether the
defendant has had the opportunity to apprise himself of and
participate in the proceedings against him where, as in the instant
case, this is disputed on a ground that does not immediately appear
to be manifestly devoid of merit (see, mutatis mutandis,
Somogyi v. Italy, no. 67972/01, § 72, ECHR
2004 IV). While it is not fully clear from the judgment of the
court whether the Court of Cassation only examined the grounds of
appeal submitted by the applicant and disregarded those submitted by
his legal representative, the Court does not find any indication from
the judgment that any scrutiny was exercised by that court, on its
own motion pursuant to Article 320 § 1 of the Code of Criminal
Procedure, to determine whether the applicant had unequivocally
waived the right to appear at his trial or whether he had been given
an adequate and proper opportunity to challenge and question the
witnesses against him. In this connection the Court reiterates that
where a conviction is based solely or to a decisive degree on
depositions that have been made by a person whom the accused has had
no opportunity to examine or to have examined, whether during the
investigation or at the trial, the rights of the defence are
restricted to an extent that is incompatible with the guarantees
provided by Article 6 (see Sadak and Others v. Turkey,
nos. 29900/96, 29901/96, 29902/96 and 29903/96, § 65, ECHR
2001 VIII). This is even more so when the witnesses whose
testimonies on which the conviction was based have not appeared or
given evidence before the trial court which convicted the applicant.
In such circumstances the Court is not convinced that the subsequent
appeal proceedings remedied the fact that the proceedings before the
first instance had taken place in the applicant's absence
despite the fact that it had not been established that he had waived
his right to appear and to defend himself or that he intended to
escape trial.
- In
view of the above, the Court concludes that there has been a
violation of Article 6 § 1 of the Convention in
conjunction with Article 6 § 3 (c) in the present
case.
- Having
regard to the violation found above, the Court deems it unnecessary
to examine the applicant's remaining complaints under Article 6
of the Convention (see, for example, Sejdovic, § 107,
cited above, and Juhnke v. Turkey, no. 52515/99, §
94, 13 May 2008).
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- In
the application form the applicant also complained that
section 8 of Law no. 3713 was incompatible with Article
10 of the Convention and had infringed his freedom of expression.
- The
applicant further complained under the same provision that he
had been denied a fair hearing by an independent and impartial
tribunal on account of the different rules of procedure applicable in
the proceedings before the State Security Courts and the fact that
judges were appointed by the Supreme Council of Judges and
Prosecutors in Turkey. In his observations dated 8 August 2008, the
applicant claimed under Article 34 that his right of individual
petition had been infringed because the judgment of the Court of
Cassation was never served on him.
- As
regards the applicant's complaint under paragraph 45, the Court notes
that it is linked to the one examined above and must likewise be
declared admissible. However, having regard to the facts of the case,
the submissions of the parties and its finding of a violation of
Article 6 §§ 1 and 3 (c) of the Convention above,
the Court considers that it has examined the main legal question
raised in the present application. It concludes therefore that there
is no need to give a separate ruling on the applicant's complaint
under Article 10 of the Convention (see, for example, Kamil
Uzun v.
Turkey,
no. 37410/97, § 64, 10 May 2007; Getiren v. Turkey,
no. 10301/03, § 132, 22 July 2008; and Juhnke, cited
above, § 99).
- As
to the applicant's submissions under paragraph 46, the Court finds,
in the light of all the materials in its possession, that they do not
disclose any appearance of a violation of the rights and freedoms set
out in the Convention or its Protocols. It follows that this part of
the application must be declared inadmissible as being manifestly
ill-founded, pursuant to Article 35 §§ 1, 3 and 4 of
the Convention.
III. 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, costs and expenses
- The applicant claimed, in total, 7,500 euros (EUR) in
respect of pecuniary damage. This sum concerned loss of earnings
incurred during his imprisonment and the fine he had paid as a result
of his conviction. He further claimed, in total, EUR 4,150 for the
costs and expenses incurred both in the domestic proceedings and
before the Court. In support of that request, the applicant referred
to the Izmir Bar Association's scale of fees and submitted a time
sheet prepared by his legal
representative. In addition, the applicant claimed EUR 30,000 in
respect of non pecuniary damage.
- The
Government contested the amounts.
- On the question of pecuniary damage, the Court
considers in the first place that it cannot speculate as to what the
outcome of proceedings compatible with Article 6 §§ 1 and 3
(c) would have been. The Court therefore makes no award in respect of
pecuniary damage.
- As
regards non-pecuniary damage, ruling on an equitable basis, the Court
awards the applicant EUR 2,000 (see Kahraman, cited above, §
43).
- Moreover,
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 v. Turkey [GC], no. 36391/02, § 72,
27 November 2008).
- As
to 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 were reasonable as to quantum. In the present case,
regard being had to the documents in its possession and the above
criteria, the Court rejects the claim for costs and expenses in the
domestic proceedings and considers it reasonable to award the
applicant EUR 1,000 for the proceedings before the Court.
B. 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 complaints concerning the alleged
lack of a fair hearing on account of the failure of the domestic
courts to respect the rights of the defence (see paragraph 30 above)
and the alleged interference with his freedom of expression (see
paragraph 45 above) admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention in conjunction with Article 6
§ 3 (c) on account of the fact that the proceedings before the
first instance had taken place in the applicant's absence;
- Holds that there is no need to examine the
applicant's remaining complaints under Articles 6 and 10 of the
Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final according to
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
2,000 (two thousand 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 28 July 2009, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
