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SECOND
SECTION
CASE OF GÜROVA v. TURKEY
(Application
no. 22088/03)
JUDGMENT
STRASBOURG
6
October 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 Gürova 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 Sally
Dollé, Section
Registrar,
Having
deliberated in private on 15 September 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 22088/03) 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 Mehmet Gürova (“the
applicant”), on 6 May 2003.
- The
applicant was represented by Mr E. Yurtalan, a lawyer practising in
Ankara. The Turkish Government (“the Government”) were
represented by their Agent.
- On
16 February 2008 the President of the Second 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
- The
applicant was born in 1960 and lives in Ankara.
- On
17 May 2000 the applicant was arrested on suspicion of membership of
an illegal organisation. The same day, the applicant was
examined by a doctor, who reported that there was no sign of
ill-treatment on his body. On 18 May 2000 he was questioned in police
custody in the absence of a lawyer. In his police statement, the
applicant admitted that he had had military training in Iran but
rejected the allegation that he was a member of an illegal
organisation.
- On
21 May 2000 the applicant was again medically examined by a doctor,
who stated that there were no traces of ill-treatment on his body.
Subsequently, on the same day, the applicant was brought before the
prosecutor and the investigating judge at the Ankara State Security
Court, still in the absence of a lawyer. Before the public
prosecutor, the applicant declared that he had been subjected to
“psychological torture” in police custody and refuted his
police statement. He acknowledged that he had been to Iran but
denied having had military training there. The applicant also gave a
statement to the investigating judge. He retracted his police
statement but did not mention any allegations of ill-treatment or
duress. After the questioning was over, the investigating judge
remanded the applicant in custody.
- On
11 July 2000 the prosecutor at the Ankara State Security Court filed
an indictment with that court, charging the applicant with the
offence of membership of an illegal organisation, namely the
Tevhid-Selam and its sub-group the Kudüs Savaşçıları.
A number of other persons were also included in the same indictment
and accused of various offences, such as the assassination of a
number of prominent journalists and academics in Turkey. According to
the prosecutor, the organisation's aim was to establish a religious
regime in Turkey similar to that in Iran.
- On
7 January 2002 the Ankara State Security Court rendered its
152 page-long judgment. The trial court found it established, on
the basis of the applicant's police custody statement of 18 May 2000,
that he was a member of the illegal organisation. It sentenced him to
twelve years and six months' imprisonment under Article 168 of the
Criminal Code. In its decision the trial court also examined the
applicant's allegation of psychological pressure in police custody.
Having regard to the two medical reports drawn up at the time of the
applicant's arrest and his release from police custody, which stated
that there were no marks of injury on the applicant's body, the court
concluded that the applicant had retracted his police custody
statement in order to avoid conviction.
- On
12 November 2002 the Court of Cassation upheld the applicant's
conviction. The applicant was released from prison on 10 June 2006.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- Relying
on Article 6 § 3 (c) of the Convention, the applicant complained
that he had been denied the assistance of a lawyer while he was in
police custody.
- 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 also notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
- As
regards the merits, the Government
maintained that, in assessing whether or not the trial was fair,
regard should be had to the entirety of the proceedings. As the
applicant was represented by a lawyer during the proceedings before
the State Security Court and the Court of Cassation, his right to a
fair hearing had not been violated.
- The Court observes 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). It has also 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.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant complained under Article 3 that he had been subjected to
psychological torture in police custody. Relying on Article 5 §
3 of the Convention, he further complained that he had been held in
police custody for a long time. Under Article 6, the applicant
alleged that the State Security Court which had tried and convicted
him was not an independent and impartial tribunal. He also complained
about the length of the proceedings. Finally, the applicant alleged
that his conviction, which was based on his visit to Iran, had been
in violation of Article 7 of the Convention.
- However,
the Court finds nothing whatsoever in the case file which might
disclose any appearance of a violation of these provisions. It
follows that this part of the application is manifestly-ill founded
and must be rejected, pursuant to Article 35 §§ 3 and 4 of
the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- The
applicant requested 40,000 euros (EUR) in respect of pecuniary damage
and EUR 30,000 in respect of non-pecuniary damage. He further claimed
EUR 7,500 for legal fees and EUR 500 for costs and expenses. In
respect of his claims, the applicant submitted a legal fee agreement.
- 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. In
respect of non-pecuniary damage, ruling on an equitable basis, it
awards EUR 1,500 to the applicant.
- 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 § 1 of the Convention, should the
applicant so request (see Salduz,
cited above, § 72).
- According
to the Court's case-law, 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. In the present case, regard being had to
the documents in its possession and the above criteria, the Court
finds it reasonable to award the sum of EUR 1,000 under this head.
- 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 admissible
the complaint concerning the lack of legal
assistance to the applicant while in police custody, and the
remainder of the application inadmissible;
- Holds
there has been a violation of Article 6 § 3 (c) of the
Convention in conjunction with Article 6 § 1;
- 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, the following amounts,
to be converted into Turkish liras 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;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 6 October 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens
Registrar President
