SECOND SECTION

CASE OF HÜSEYİN HABİP TAŞKIN v. TURKEY

(Application no. 5289/06)

JUDGMENT

STRASBOURG

1 February 2011

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 Hüseyin Habip Taşkın v. Turkey,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
	Françoise Tulkens, President,
	Ireneu Cabral Barreto,
	Dragoljub Popović,
	Nona Tsotsoria,
	Işıl Karakaş,
	Kristina Pardalos,
	Guido Raimondi, judges,
and Stanley Naismith, Section Registrar,
Having deliberated in private on 11 January 2010,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 5289/06) 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 Hüseyin Habip Taşkın (“the applicant”), on 27 January 2006.
2.  The applicant, who had been granted legal aid, was represented by Ms A. Kuru, a lawyer practising in İzmir. The Turkish Government (“the Government”) were represented by their Agent.
3.  On 6 October 2009 the Court declared the application partly inadmissible and decided to communicate to the Government the complaints raised under Article 5 § 2 and Article 6 §§ 1 and 3 (c) of the Convention. It also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
4.  The applicant was born in 1960 and lives in Izmir.
5.  On 9 July 2002 at 4 p.m., the applicant was taken into custody by police officers from the Anti-Terrorist Branch of the Izmir Security Directorate. Immediately, he was taken to the Atatürk Teaching and Research Hospital, where he was examined by a doctor. The medical report stated that there was no trace of ill-treatment on his body. The applicant was then taken to the Izmir Security Directorate Building for interrogation.
6.  According to a form dated 9 July 2002 that explained arrested persons' rights, and which was signed by the applicant, he had been reminded of his right to remain silent.
7.  On 10 July 2002 the applicant was interrogated at the Anti-Terrorist Branch in the absence of a lawyer. In his statement, the applicant gave a detailed description about his involvement in an illegal organisation, namely the Bolşevik Parti - Kuzey Kürdistan/Türkiye (Bolshevik Party – North Kurdistan/Turkey). The applicant further took part in an identification parade with other accused persons and identified certain persons as members of the said organisation.
8.  On 12 July 2002 the applicant was visited by a lawyer, Mr M.R., for a short period of time. The applicant told the lawyer that he did not need anything and that during his trial he wished to be represented by Mr H.D., a lawyer practising in Izmir.
9.  On 13 July 2002 the applicant was again examined by a doctor, who stated that there were no traces of ill-treatment on his body.
10.  On the same day, the applicant was brought before the public prosecutor and the investigating judge respectively, again in the absence of a lawyer. Before the public prosecutor and the investigating judge, the applicant repeated his police statement. After the questioning was over, the investigating judge remanded the applicant in custody.
11.  On 6 September 2002 the public prosecutor at the Izmir State Security Court filed an indictment with that court accusing the applicant of membership of an illegal organisation, an offence under Article 168 of the former Criminal Code and Section 7 of the Prevention of Terrorism Act (Law no. 3713). During the proceedings, the applicant was represented by his lawyer, and he denied his police statement alleging that it had been extracted under duress.  On 21 January 2003 the applicant was released pending trial.
12.  On 24 July 2003 the Izmir State Security Court found the applicant guilty as charged and sentenced him to four years and two months' imprisonment under Section 7 of Law no. 3713.
13.  On 8 April 2004 the Court of Cassation quashed the judgment, holding that the first instance court should have taken into account the recent amendments made to Law no. 3713 when giving its judgment. By Law no. 5190 of 16 June 2004, published in the Official Gazette on 30 June 2004, State Security Courts were abolished. The case against the applicant was therefore transferred to the Izmir Assize Court.
14.  On 12 October 2004 the Izmir Assize Court found the applicant guilty as charged and sentenced him to two years and six months' imprisonment. In convicting him, the court had regard to the applicant's statements to the police, the public prosecutor and the investigating judge respectively. The applicant appealed against this decision. While the appeal was pending before the Court of Cassation, in 2005 new legislation amending the Criminal Procedure Code came into force. By a decision dated 10 November 2005, the Chief Public Prosecutor at the Court of Cassation sent the case file back to the first instance court and requested the latter to reconsider the case in the light of the amendments made to the Code of Criminal Procedure. On 16 March 2006 the Izmir Assize Court repeated its previous judgment and held that the new provisions were not more favourable to the applicant. On 25 December 2006 the Court of Cassation upheld the judgment dated 16 March 2006.
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

15.  Relying on Article 6 §§ 1 and 3 (a), (b) and (c) of the Convention, the applicant complained that he had been denied the assistance of a lawyer during his police custody and that his police statement which had been taken in the absence of a lawyer had been used in his conviction by the trial court.
16. The Court considers that this complaint should be examined under Article 6 §§ 1 and 3 (c) of the Convention, of which the relevant part reads as follows:
“1.  In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing within a reasonable time by an independent and impartial tribunal established by law.
3.  Everyone charged with a criminal offence has the following minimum rights:
(c)  to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require.”
17.  The Government asked the Court to reject the complaint raised under Article 6 of the Convention for failure to comply with the requirement of exhaustion of domestic remedies on the ground that the applicant had failed to raise his complaints before the domestic courts. In the alternative, the Government claimed that the applicant had failed to comply with the six months time-limit because he had not lodged his application within six months of the end of his police custody on 13 July 2002.
18.  As to the Government's plea of non-exhaustion, the Court reiterates that it has already examined and rejected the Government's preliminary objections in similar cases (see, in particular, Halil Kaya v. Turkey, no. 22922/03, § 14, 22 September 2009). The Court finds no particular circumstances in the instant case which would require it to depart from its findings concerning the above-mentioned application.
19.  As to the objection concerning the alleged failure to observe the six‑month rule, the Court notes that when examining complaints regarding the rights of the defence, it must have regard to the proceedings as a whole in order to determine whether the absence of a lawyer during police custody had an impact on the outcome of the proceedings (John Murray v. the United Kingdom, 8 February 1996, §63, Reports of Judgments and Decisions 1996‑I). Thus, the Court considers that the six months period in the instant case started running as from the date of the Court of Cassation's decision dated 25 December 2006 and that the application was introduced prior to that date, namely on 27 January 2006. Consequently, the Court rejects the Government's preliminary objections.
20.  The Court considers 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. It must therefore be declared admissible.
21.  As regards the merits, the Court observes from the documents in the case file that indeed the applicant saw a lawyer on 12 July 2002 for a short period of time. During this meeting the lawyer was able to ask the applicant if he needed anything and the applicant informed him that he wished to be represented by Mr H.D. during the trial. It is undisputed between the Parties that the applicant had no legal assistance before or when making his police statement or during the interrogation before the public prosecutor and the investigating judge. 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 specific 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 met his lawyer during police custody, this meeting cannot be considered to have been sufficient by Convention standards (see, Fatma Tunç v. Turkey (no. 2), no. 18532/05, § 14, 13 October 2009).
22.  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.
23.  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.  ALLEGED VIOLATION OF ARTICLE 5 § 2 OF THE CONVENTION
24.  Relying on Article 5 § 2 of the Convention, the applicant complained that he had not been promptly informed of the reasons for his arrest.
25.  The Government argued that this part of the application should be rejected for non-compliance with the six months rule.
26.  The Court observes that the applicant's police custody ended on 13 July 2002 but he did not lodge his application with the Court until 27 January 2006. He thereby failed to observe the six-month rule laid down in Article 35 § 1 of the Convention in respect of this complaint. This aspect of the case must therefore be rejected pursuant to Article 35 §§ 1 and 4 of the Convention (see, amongst many other authorities, Duman v. Turkey (dec.), no. 803/04, 11 December 2007).
III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
27.  The applicant claimed 8,300 euros (EUR) in respect of pecuniary damage and EUR 15,000 in respect of non-pecuniary damage. He further claimed EUR 2,400 for legal fees (corresponding to 16 hours' work) and EUR 378 for translation and postal expenses.
28.  The Government contested these claims.
29.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. However, deciding on an equitable basis, it awards the applicant EUR 1,800 in respect of non‑pecuniary damage.
30.  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 he so request (see, Salduz, cited above, § 72).
31.  As regards the costs and expenses, the Court reiterates that 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. Taking into account the awards made in comparable cases (see, Bolukoç and Others v. Turkey, no. 35392/04, § 47, 10 November 2009; Fatma Tunç, cited above, § 22; Gürova v. Turkey, no. 22088/03, § 21, 6 October 2009; and Salduz, cited above, § 79), the Court finds it reasonable to award EUR 1,000 under this head, less the EUR 850 which he received in legal aid from the Council of Europe.
32.  The Court further 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
1.  Declares the complaint concerning the lack of legal assistance to the applicant admissible and the remainder of the application inadmissible;

2.  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 while in police custody;

3.  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 1,800 (one thousand eight 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 less EUR 850 (eight hundred and fifty Euros) granted by way of legal aid;
(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;

4.  Dismisses the remainder of the applicant's claim for just satisfaction.
Done in English, and notified in writing on 1 February 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stanley Naismith	Françoise Tulkens	Registrar	President