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SECOND
SECTION
CASE OF OĞRAŞ v. TURKEY
(Application
no. 13918/03)
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 Oğraş v.
Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Ireneu Cabral Barreto,
Vladimiro
Zagrebelsky,
Dragoljub Popović,
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. 13918/03) 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 Yahya Oğraş
(“the applicant”), on 2 April 2003.
- The
applicant was represented by Mr I. Sağlam, a lawyer practising
in Diyarbakır. The Turkish Government (“the Government”)
were represented by their Agent.
- On
6 November 2007 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 1972 and lives in Diyarbakır.
- On
31 October 2000 the applicant was taken into police custody in
Diyarbakır on suspicion of membership of Hezbollah, an illegal
armed organisation. In his police statement dated 9 November 2000,
taken in the absence of a lawyer, the applicant accepted the charges
against him.
- On
10 November 2000 the applicant was brought before the public
prosecutor and subsequently the investigating judge. Before the
public prosecutor and the investigating judge, the applicant denied
that he was a member of Hezbollah.
- On
30 November 2000 the public prosecutor at the Diyarbakır State
Security Court filed a bill of indictment and accused the applicant
of membership of an illegal armed organisation. He requested that the
applicant be charged and sentenced pursuant to Article 168 of the
Criminal Code. On 30 April 2002 the Diyarbakır State Security
Court convicted the applicant as charged and sentenced him to twelve
years and six months' imprisonment. In convicting the applicant, the
court had regard to his statement taken in the absence of a lawyer.
- On
30 April 2002 the applicant appealed. On 19 June 2002 the Principal
Public Prosecutor at the Court of Cassation lodged a written opinion,
in which he submitted that the Court of Cassation should uphold the
judgment of the State Security Court. This opinion was not served on
the applicant or his representative. On 21 October 2002 the Court of
Cassation upheld the judgment of the Diyarbakır State Security
Court.
- On
8 July 2005 the applicant was released from prison.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant complained that the written opinion of the Principal Public
Prosecutor at the Court of Cassation had not been communicated to
him. He further stated that he had been denied the assistance of a
lawyer while in police custody and that his statements taken in the
absence of a lawyer had been used by the domestic courts for his
conviction. Finally, the applicant raised complaints about the
fairness of the proceedings and alleged that two witnesses, whose
evidence had been used for his arrest and subsequent conviction, were
not summoned before the trial court and, consequently, he had not had
an opportunity to have these witnesses questioned by the court. He
also stated that the evidence used against him for his conviction was
not submitted to the judicial authorities in a proper manner, which
cast doubt on its reliability. According to the applicant, the
transcription of the hard disks had not been undertaken by the
experts. He invoked Article 6 §§§ 1, 2 and 3 in
respect of his complaints.
- The
complaints which the Court finds of particular importance are the
non-communication of the written opinion of the Principal Public
Prosecutor at the Court of Cassation and the absence of legal
assistance to the applicant during his police custody. It therefore
considers it appropriate to limit its examination solely to these
matters.
A. The
non-communication of the written opinion of the Principal Public
Prosecutor at the Court of Cassation
- Relying
on Article 6 § 1 of the Convention, the applicant complained
that the written opinion of the Principal Public Prosecutor at the
Court of Cassation had not been communicated to him.
- The
Court notes in the first place that this complaint 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 and must therefore be declared admissible.
- It
observes that it has already examined the same grievance in the case
of Göç v. Turkey and found a violation of Article
6 § 1 of the Convention ([GC], no. 36590/97, ECHR 2002-V, §§
55-58). In that judgment, the Court held that, having regard to the
nature of the principal public prosecutor's submissions and to the
fact that the applicant had not been given an opportunity to make
written observations in reply, there had been an infringement of the
applicant's right to adversarial proceedings.
- The
Court has examined the present case and finds no particular
circumstances which would require it to depart from its findings in
the aforementioned Göç judgment.
- Accordingly,
there has been a violation of Article 6 § 1 of the Convention.
B. Access to a lawyer during police custody
- The
applicant complained that he had been denied legal assistance during
his police custody and that his police statement which had been taken
in the absence of a lawyer was subsequently used for his conviction
by the trial court. In respect of his complaints, the applicant
invoked Article 6 §§ 2 and 3 (c) of the Convention.
- 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 and must therefore be declared admissible.
- As
regards the merits, 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). In that judgment, the Court held that the restriction
imposed on the right of access to a lawyer was systematic and applied
to anyone held in police custody at the material time, regardless of
his or her age, in connection with an offence falling within the
jurisdiction of the State Security Courts.
- 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.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Relying
on Article 5 of the Convention, the applicant complained that his
arrest had been unlawful as there had been no reasonable suspicion
against him, and that the length of his police custody had exceeded
the reasonable time requirement. He further alleged that he was
unable to challenge the lawfulness of his detention on remand and
that he had no enforceable right to compensation for his Article 5
grievances. However, the Court finds that these complaints are to be
rejected, either as having been lodged outside the six-month
time-limit prescribed by Article 35 § 1 of the Convention, or as
being wholly unsubstantiated, and therefore manifestly ill-founded,
within the meaning of Article 35 § 3. They must therefore be
rejected pursuant to Article 35 § 4 of the Convention.
- Invoking
Article 6 § 1 of the Convention, the applicant also complained
about the length of the criminal proceedings against him. However as
these proceedings only lasted one year and eleven months before two
levels of jurisdiction, this complaint is also to be rejected as
being manifestly ill-founded, pursuant to Article 35 §§ 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
- The
applicant claimed 38,202 Turkish liras (YTL) (approximately 17,600
euros (EUR)) in respect of pecuniary damage. He did not specify any
claims as regards non-pecuniary damage.
- The
Government contested the applicant's claim.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. As
regards non-pecuniary damage, the Court considers that where it finds
that an applicant has been convicted in criminal proceedings which
were found to be in breach of Article 6 § 1 of the
Convention, in principle, the most appropriate form of relief would
be to ensure that the applicant, as far as possible, be put in the
position in which he would have been had this provision not been
disregarded. The Court therefore concludes 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).
B. Costs and expenses
- The
applicant also claimed YTL 20,000 (approximately EUR 9,200) in
respect of costs and YTL 800 (approximately EUR 370) in respect of
legal fees.
- The
Government contested these claims.
- In
respect of costs and expenses, 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, the applicant has not substantiated that he has actually
incurred the costs claimed. Accordingly, it makes no award under this
head.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaints concerning the
lack of legal assistance to the applicant during his police custody
and the non-communication of the written opinion of the Principal
Public Prosecutor at the Court of Cassation admissible and the
remainder of the application inadmissible;
- 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 to the applicant when
he was in police custody;
- Holds that there has been a violation of Article
6 § 1 of the Convention, in respect of the non-communication of
the written opinion of the Principal Public Prosecutor at the Court
of Cassation;
- Dismisses 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
