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SECOND
SECTION
CASE OF EK AND ŞIKTAŞ v. TURKEY
(Applications
nos. 6058/02 and 18074/03)
JUDGMENT
STRASBOURG
17
February 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 Ek and Şıktaş
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 27 January 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in two applications (nos. 6058/02 and 18074/03)
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 two Turkish nationals, Mr
Mehmet Şirin Ek and Mr Hüseyin Şıktaş (“the
applicants”), on 16 November 2001 and 14 May 2003
respectively.
- The
applicants were represented by Mr O.K. Cengiz and Ms M. Kırdök
respectively, lawyers practising in Izmir and Istanbul. The Turkish
Government (“the Government”) were represented by their
Agent.
- On
4 January 2006 and 3 October 2006 respectively, the Court decided to
give notice of the applications to the Government. It was also
decided to examine the merits of the applications at the same time as
their admissibility (Article 29 § 3).
THE FACTS
- The
applicants were born in 1975 and 1978 respectively. The facts common
to these cases are that the applicants were arrested and placed in
custody in different times and places. During their custody period,
they were interrogated by the police, the public prosecutor and the
investigating judge respectively, in the absence of a lawyer. These
statements were subsequently used for their convictions by the trial
court.
- The
details concerning the applications are indicated in the table below.
|
Application no.
and
case name
|
Dates
of police custody
|
Date
of interrogation by the police
|
Date
of interrogation by the public prosecutor and the investigating
judge
|
Date
of final decision by the Court of Cassation
|
|
6058/02
Ek v. Turkey
|
29/2/2000
to 5/3/2000
|
4/3/2000
|
5/3/2000
|
16/5/2001
|
|
18074/03
Şıktaş v. Turkey
|
25/1/1996
to 31/1/1996
|
27/1/1996
|
30/1/1996
31/1/1996
|
23/12/2002
|
THE LAW
- In
view of the similarity of the applications, the Court finds it
appropriate to join them.
- Relying
on Article 6 § 3 (c) of the Convention, the applicants
complained in the first place that they had been denied the
assistance of a lawyer during their police custody, and that their
statements which had been taken during this period, allegedly under
duress, had been used for their conviction. They further stated under
Article 6 § 3 (d) that they had not had an opportunity to
question or to confront some of the witnesses. Finally, again relying
on Article 6 of the Convention, the second applicant complained that
he had not been able to contact members of his family during his
police custody.
- The
complaint, which the Court finds of particular importance and which
is common to the present applications, is the absence of legal
assistance to the applicants during their police custody. It
therefore considers it appropriate to limit its examination solely to
this matter.
- As
regards application no. 18074/03, the Government stated that this
application was introduced outside the six month time-limit, since
the first instance court had delivered its judgment on 31 October
2001, whereas the application was introduced on 14 May 2003. The
Court recalls 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.
- The
Court notes that these applications are not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. It
further notes that they are not inadmissible on any other grounds.
They 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 during that period,
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.
- As
regards just satisfaction under Article 41 of the Convention, the
first applicant, Mehmet Şirin Ek, did not make any request. The
second applicant, Hüseyin Şıktaş, claimed 15,000
euros (EUR) in respect of non-pecuniary damage. Based on a legal fee
agreement, he also requested 8,000 New Turkish liras (TRY)
(approximately EUR 3,900) in respect of his lawyer's fees, and TRY
210 (approximately EUR 100) in respect of costs and expenses. The
Government contested the claims.
- In
respect of non-pecuniary damage, ruling on an equitable basis, the
Court awards EUR 1,500 to the second applicant.
- The
Court further considers that the most appropriate form of redress
would be the re-trial of the applicants in accordance with the
requirements of Article 6 § 1 of the Convention, should the
applicants so request (see, mutatis mutandis, Gençel
v. Turkey, no. 53431/99, § 27, 23 October 2003, and Salduz,
cited above, § 72).
- According
to its relevant case-law, the Court also considers it reasonable to
award the sum of EUR 1,000 to the second applicant in respect of
costs and expenses.
- 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
- Decides to join the applications;
- Declares the applications admissible;
- 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
applicants while in police custody;
- Holds that there is no need to examine the
applicants' other complaints under Article 6 of the Convention;
- Holds
(a) that
the respondent State is to pay the second 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 applicants' claim
for just satisfaction.
Done in English, and notified in writing on 17 February 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens
Registrar President
