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SECOND
SECTION
CASE OF FATMA TUNÇ v. TURKEY (no. 2)
(Application
no. 18532/05)
JUDGMENT
STRASBOURG
13 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 Fatma Tunç
v. Turkey (no. 2),
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Ireneu Cabral Barreto,
Danutė
Jočienė,
András Sajó,
Nona
Tsotsoria,
Işıl Karakaş,
Kristina
Pardalos, judges,
and Françoise Elens-Passos,
Deputy Section Registrar,
Having
deliberated in private on 22 September 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 18532/05) 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, Ms Fatma Tunç (“the
applicant”), on 15 April 2005.
- The
applicant was represented by Mrs F. Karakaş Doğan, a lawyer
practising in İstanbul. The Turkish Government (“the
Government”) were represented by their Agent.
- On
10 September 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 1980 and lives in Kocaeli.
- On
10 October 2001 the applicant was arrested in Istanbul on suspicion
of being a member of an illegal organisation. On 14 October 2001 the
applicant was allowed to see her lawyer for a short period of time
(five minutes) following the permission given by the public
prosecutor.
- On
14 October 2001 the applicant's statement was taken by the police in
the absence of a lawyer. In her statement, the applicant accepted the
charges against her and gave a detailed account of her connections in
the illegal organisation. Subsequently, on 16 October 2001 the
applicant was brought before the public prosecutor, and thereafter
before the investigating judge of the Istanbul State Security Court.
Before the public prosecutor, the applicant admitted that she was a
member of the illegal organisation. When questioned by the
investigating judge, the applicant denied the charges against her.
After the interrogation, the investigating judge ordered that the
applicant be detained on remand.
- On
23 November 2001 the public prosecutor filed an indictment with the
Istanbul State Security Court, accusing the applicant of being a
member of an illegal armed organisation under Article 168 § 2 of
the Criminal Code and Article 5 of the Anti-Terrorism Act.
- On
4 March 2004, based on her police statement and other evidence before
it, the Istanbul State Security Court convicted the applicant as
charged and sentenced her to twelve years and six months'
imprisonment. On 11 November 2004 the Court of Cassation rejected the
applicant's appeal.
- On
7 October 2005 the applicant was released from prison.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- Relying
on Article 6 § 3 (a), (b) and (c) of the Convention, the
applicant complained that she had been denied the assistance of a
lawyer during her police custody and that her police statement which
had been taken in the absence of a lawyer had been used in her
conviction by the trial court.
- The
Government argued that the applicant had failed to comply with the
six months time-limit prescribed by Article 35 § 1 of the
Convention. In their view, the applicant should have lodged her
application with the Court within six months following the first
hearing before the Istanbul State Security Court, which was held on
10 December 2001. As regards the merits, the Government submitted
that the applicant had seen her lawyer on 14 October 2001, during her
police custody.
- The
Court recalls that, in assessing whether or not a trial was fair,
regard should be had to the entirety of the proceedings (John
Murray v. the United Kingdom, 8 February 1996, § 63, Reports
of Judgments and Decisions 1996 I). In the present case, the
applicant lodged her application with the Court within six months
following the final decision of the Court of Cassation which had been
delivered on 11 November 2004, as required by Article 35 § 1 of
the Convention. Consequently, the Government's objection cannot be
upheld.
- The
Court further 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.
- From
the documents submitted by the parties, the Court observes that,
indeed, the applicant had seen her lawyer on 14 October 2001 for five
minutes, between 4.40 and 4.45 p.m. In this connection, the Court
recalls that in its Salduz judgment ([GC],
no. 36391/02, §§ 54-55, 27 November 2008), it
underlined the importance of the investigation stage for the
preparation of the criminal proceedings, as the evidence obtained
during this stage determines the framework in which the offence
charged will be considered at the trial. In order for the right to a
fair hearing to remain sufficiently “practical and effective”,
Article 6 § 1 requires, as a rule, access to a lawyer as from
the first interrogation of a suspect by the police, unless it is
demonstrated in the particular circumstances of the particular case
that there are compelling reasons to restrict this right. Having
regard to the foregoing, and bearing in mind that the restriction
imposed concerning access to a lawyer was systemic, pursuant to
section 31 of Law no. 3842, and applied to anyone held in police
custody in connection with an offence falling under the jurisdiction
of the State Security Courts, the Court concludes that although the
applicant had met her lawyer during police custody, this meeting
cannot be considered to have been sufficient by Convention standards.
- The
Court further observes that it has already examined the issue
concerning the lack of legal assistance in police custody in the case
of Salduz (cited above, §§ 56-62) and found a
violation of Article 6 § 3 (c) of the Convention in conjunction
with Article 6 § 1. It 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.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant further alleged under Article 6 that she had not been tried
by an independent and impartial tribunal. She maintained under
Articles 13 and 14 that she had no effective remedy for her
Convention grievances.
- The
Court finds nothing whatsoever in the case file to substantiate the
applicant's allegations or 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 5,000 euros (EUR) in respect of pecuniary damage
and EUR 15,000 in respect of non-pecuniary compensation. She further
claimed EUR 2,000 for costs and expenses and EUR 5,000 for legal
fees. In support of her claims, the applicant submitted a legal fee
agreement.
- 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 re-trial 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 were
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 further finds 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 complaint concerning the lack of
legal assistance to the applicant admissible 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, on account of the lack of legal assistance to the applicant while
in police custody;
- 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 13 October 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Françoise
Tulkens
Deputy Registrar President
