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SECOND
SECTION
CASE OF ASLAN AND DEMİR v. TURKEY
(Applications
nos. 38940/02 and 5197/03)
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 Aslan and Demir 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. 38940/02 and 5197/03)
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
Mahmut Aslan and Mr Hüseyin Demir (“the applicants”),
on 13 July 2000 and 12 November 2002 respectively.
- The
applicants were represented by Mr E. Talay and Mr M. Taş
respectively, lawyers practising in Diyarbakır and Elazığ.
The first applicant was granted legal aid. The Turkish Government
(“the Government”) were represented by their Agent.
- On
1 June 2006 and 20 November 2007 respectively, the Court declared the
applications partly inadmissible and decided to communicate to the
Government the complaint concerning the lack of legal assistance to
the applicants during their police custody. It 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 1974 and 1960 respectively and live in
Turkey. 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 two 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
|
|
38940/02
Mahmut Aslan
|
19/6/1999
to 25/6/1999
|
25/6/1999
|
25/6/1999
|
19/12/2000
|
|
5197/03
Hüseyin Demir v. Turkey
|
28/1/2000
to 3/2/2000
|
2/2/2000
|
3/2/2000
|
2/7/2002
|
THE LAW
- In
view of the similarity of the applications, the Court finds it
appropriate to join them.
- Relying
on Article 6 §§ 1 and 3 (c) of the Convention, the
applicants complained that they had been denied the assistance of a
lawyer while in police custody.
- The
Court notes that this remaining complaint of the applicants 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.
- 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, Mahmut Aslan, claimed 30,000 euros (EUR) in respect
of non-pecuniary damage. The second applicant, Hüseyin Demir,
claimed EUR 10,800 in respect of pecuniary damage. Referring to
his application form, he further requested EUR 1,000,000 in respect
of non-pecuniary damage. Referring to the Diyarbakır Bar
Association’s scale of fees, the first applicant’s
representative claimed a total of EUR 2,119, covering the time spent
in the preparation and presentation of this case before the Court,
and other costs and expenses. The second applicant did not make any
request under this head. 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 each of the applicants.
- 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, in respect of costs and expenses, the Court
considers it reasonable to award the sum of EUR 1,000 to the first
applicant less the sum of EUR 850 received in legal aid from the
Council of Europe.
- 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 remainder of 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
(a) that
the respondent State is to pay, 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) to each of the applicants,
plus any tax that may be chargeable, in respect of non-pecuniary
damage;
(ii) EUR
1,000 (one thousand euros) to the first applicant, Mahmut Aslan, less
the EUR 850 (eight hundred and fifty euros) received in legal aid,
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
