SECOND SECTION
CASE OF
DAVUT ABO v. TURKEY
(Application no.
22493/07)
JUDGMENT
STRASBOURG
26 November 2013
This judgment is final but it may be subject to
editorial revision.
In the case of Davut Abo v. Turkey,
The European Court of Human
Rights (Second Section), sitting as a Committee composed of:
Dragoljub Popović,
President,
Paulo Pinto de Albuquerque,
Helen Keller, judges,
and Seçkin Erel, Acting Deputy Section Registrar,
Having deliberated in private on 5 November 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
22493/07) 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 Davut Abo (“the applicant”), on 15
May 2007.
The applicant was represented by Ms E. Akgül, a
lawyer practising in Diyarbakır. The Turkish Government (“the Government”)
were represented by their Agent.
On 2 November 2010 the application was
communicated to the Government.
THE FACTS
The applicant, Mr Davut Abo, is a Turkish
national who was born in 1975 and is currently serving his prison sentence in
Diyarbakır.
On 1 October 2000 the applicant was arrested by
gendarmerie forces on the suspicion of his membership of an illegal
organisation, namely the PKK (the Workers’ Party of Kurdistan).
Between 2 and 4 October 2000 the applicant was
questioned by police officers from the Anti-Terrorism Branch of the
Beytülşebap Security Directorate. All of the interviews were conducted in
the absence of a lawyer. In his statements, the applicant acknowledged that he
was a member of the PKK and gave details of certain events in which he had
taken part.
On 5 October 2000 the Beytülşebap Public
Prosecutor took statements from the applicant. The applicant confirmed the
contents of his police statements and gave detailed information about the
events, again in the absence of a lawyer.
On the same day, an investigating judge at the
Beytülşebap Magistrate’s Court ordered the applicant’s pre-trial
detention, without the assistance of a lawyer. The applicant repeated the
statements he had made to the police and public prosecutor.
On 1, 2, 4 and 5 October 2000, the applicant was
medically examined by a doctor who noted that there were no sign of physical
violence on the applicant’s body.
On 22 December 2000 the Diyarbakır Public
Prosecutor lodged an indictment with the Diyarbakır State Security Court,
composed of three civilian judges, accusing the applicant of carrying out
activities with the aim of bringing about the secession of part of the national
territory, pursuant to Article 125 of the Criminal Code in force at the time.
In his written submissions to the
Diyarbakır State Security Court lodged on 6 February 2001, the
applicant explained in detail the treatment to which he had allegedly been
subjected.
On 22 February 2001 the Diyarbakır State
Security Court heard the applicant at its first hearing. He denied all the
accusations against him and retracted his statements given to the police, the
public prosecutor and the investigating judge. He maintained that he had been
threatened by the police whilst being taken to both the public prosecutor and
the investigating judge, and he further stated that he thought that he was
being brought before police officers when he had been taken to the offices of
the prosecutor and judge. He complained that he had been subjected to torture
in police custody. During the hearing, the applicant read out his written
submissions.
State Security Courts were abolished by Law no.
5190 of 16 June 2004. The case was accordingly transferred to the
Diyarbakır Assize Court.
On 22 September 2005, the applicant’s recently
appointed lawyer requested the court for a fresh medical examination to be
ordered in order to determine whether the applicant had been subjected to
ill-treatment five years ago during his detention in police custody. The court
dismissed this request, having based its rejection on the content of the case
file and the state of the evidence.
On 9 November 2006 the Diyarbakır Assize
Court convicted the applicant as charged. The court emphasised the consistency
of the applicant’s statements during the preliminary investigation with the
investigation reports obtained from another case file related to the offence in
question. It further found the applicant’s allegation of ill-treatment implausible
in the light of the medical reports in the case file. Subsequently, the court
sentenced him to aggravated life imprisonment.
On 10 November 2006 he appealed against the
judgment without raising a complaint into ill-treatment.
On 10 May 2007 the Court of Cassation upheld the
conviction.
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLES 6 §§ 1 AND 3 (C)
AND 13 OF THE CONVENTION
1. Right of access to a lawyer
The applicant alleged Article 6 § 3 (c) of the
Convention that his defence rights had been violated as he had been denied
access to a lawyer during his police custody.
The Court finds it appropriate to examine these
complaints under Article 6 §§ 1 and 3 (c) of the Convention, which reads:
“1. In the determination of ... any criminal charge against
him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
...
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.”
The Government contested the allegations.
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 and must therefore be declared admissible.
The Court notes that it is not in dispute
between the parties that the applicant was denied legal assistance during the
custody period. The restriction imposed on the applicant’s right of access to a
lawyer was systemic and applied to anyone held in custody in connection with an
offence falling under the jurisdiction of the State Security Courts (see Salduz
v. Turkey, [GC], no. 36391/02, §§ 56-63, 27 November 2008). 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.
In view of this, the Court holds that there has
been a violation of Article 6 § 3 (c) of the Convention in conjunction with
Article 6 § 1 in the present case.
2. Length of the
criminal proceedings
The applicant complained that the length of the
proceedings had exceeded the “reasonable time” requirement and alleged that
there had been no domestic remedy available under Turkish law whereby he could
challenge the length of the criminal proceedings in question. He relied on
Articles 6 § 1 and 13 of the Convention, which reads as follows:
Article 6 § 1
“In the determination of ... any criminal charge against him
everyone is entitled to a ... hearing within a reasonable time by [a] ...
tribunal...”
Article 13
“Everyone whose rights and freedoms as set forth in the
Convention are violated shall have an effective remedy before a national
authority...”
The Government contested the claims.
The Court notes that the criminal proceedings
commenced on 1 October 2000 with the applicant’s arrest and ended on 10 May
2007 with the final decision delivered by the Court of Cassation. They thus
lasted for six years and seven months before two levels of jurisdiction.
The Court observes that a new domestic remedy has
been established in Turkey after the application of the pilot judgment
procedure in the case of Ümmühan Kaplan v. Turkey (no. 24240/07, 20 March 2012). The Court recalls that
in its decision in the case of Turgut and Others v. Turkey (no. 4860/09,
26 March 2013), it declared a new application inadmissible on the ground that the
applicants had failed to exhaust the domestic remedies as a new domestic remedy
had been envisaged. In so doing, the Court in particular considered that this
new remedy was, a priori, accessible and capable of offering a
reasonable prospect of redress for complaints concerning the length of
proceedings.
The Court further recalls that in its decision
in the case of Ümmühan Kaplan v. Turkey (cited above, § 77) it stressed
that it could pursue the examination of the applications of this type which
were already communicated to the Government. It further notes that in the
present case the Government did not raise an objection in respect of the new
domestic remedy.
In light of the above, the Court decides to
pursue the examination of the present application. However, it notes that this
conclusion is without prejudice to an exception that may ultimately be raised
by the Government in the context of other communicated applications.
The Court notes that this part of the
application is not manifestly ill-founded within the meaning of Article
35 § 3 (a) of the Convention. It further notes that it is not inadmissible on
any other grounds. It must therefore be declared admissible.
As regards Article 6 § 1, the Government argued that the length of the proceedings in
the present case had been reasonable, considering the complexity of the prosecution
of crimes committed on behalf of an illegal organisation, the difficulty in
collecting evidence and the number of accused, intervening and complainant
parties involved in the proceedings. In this connection, the Government
contended that there had been no delay in the proceedings which could be
attributable to the national authorities.
The Court reiterates that the reasonableness of
the length of proceedings must be assessed in the light of the circumstances of
the case and with reference to the following criteria: the complexity of the
case, the conduct of the applicant and the relevant authorities and what was at
stake for the applicant in the dispute (see, among many other authorities, Frydlender
v. France [GC], no. 30979/96, § 43, ECHR 2000-VII, and Ümmühan Kaplan, cited above § 49, 20 March 2012).
Having examined all the material submitted to it
and having regard to its case-law on the subject, the Court considers that in
the instant case the length of the proceedings was excessive and failed to meet
the “reasonable time” requirement (see Daneshpayeh, cited above, § 28).
The Court therefore holds that there has
accordingly been a breach of Article 6 § 1 of the Convention.
In view of the above (see paragraphs 27-28
above) the Court considers that it is unnecessary to examine the complaint
raised under Article 13 of the Convention (see Rifat Demir v. Turkey,
no. 24267/07, § 41, 4 June 2013).
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
1. Article 3 of the Convention
The applicant complained under Articles 3 and 13
of the Convention that he had been tortured while in police custody and that
the domestic authorities had not conducted an adequate investigation into his
allegations of ill-treatment.
The Court considers that these complaints should
be examined from the standpoint of Article 3 of the Convention alone.
The Court observes that the applicant did not provide any
concrete evidence in support of his allegations of ill-treatment, demonstrating that he had been subjected to any
physical or psychological pressure while in police custody. Nor did he argue
that he had been unable to obtain, or had been prevented from obtaining, any
such evidence. On the contrary, the medical reports drafted on 1, 2, 4 and 5
October 2002 did not reveal any signs of physical violence on his body. The Court
therefore considers that the applicant has failed to substantiate his complaint
with appropriate evidence and to lay the basis of an arguable claim that he was
ill-treated in police custody (see Yıldırım v. Turkey
(dec.) no.33396/02, 30 August 2007; Tanrikolu and Others v. Turkey
(dec.), no. 45907/99, 22 October 2002; and Kesik v. Turkey (dec.), no. 18376/09,
24 August 2010).
This complaint is therefore inadmissible for being manifestly
ill-founded and must be rejected pursuant to Article 35 § 4 of the Convention.
2. Article 5 §§ 1 (c), 3 and 4 of the Convention
The applicant complained under Article 5 §§ 1
(c), 3 and 4 of the Convention that there had been no reasonable suspicion for
his arrest. He further maintained that the length of his police custody and
pre-trial detention was excessive, and there was no effective remedy in
domestic law to challenge the lawfulness of his detention on remand.
The Court reiterates that pursuant to Article 35
§ 1 of the Convention, the Court may only deal with the matter within a period
of six months from the date on which the final decision was taken. When the
acts of an authority are not open to any effective remedy, the six-month period
runs from the date on which the act took place.
The Court observes that the applicant was taken into police
custody on 1 October 2000 and that his detention in police custody ended
on 5 October 2000, when the judge ordered his detention on remand. He
notes that the applicant’s detention on remand continued until the final
judgment of the Assize Court of 9 November 2006. Following that date, the
applicant was detained “after conviction by a competent court”. However, the
application was lodged with the Court on 15 May 2007, which is more than six
months from the end of the detention period complained of.
The Court considers that these complaints are introduced out of
time and should be rejected for non-compliance with the six-month rule under Article
35 § 1 of the Convention.
3. Article 6 § 1 of the Convention (the use of
unlawful evidence and the independence of the tribunal)
As regards the applicant’s allegation that he
had been convicted on the basis of statements extracted from him while being
ill-treated by the police, the Court notes that it has not been established
that the applicant was subjected to ill-treatment in police custody. This
complaint should therefore be rejected for being manifestly ill-founded (see Musa
Karataş v. Turkey, no. 63315/00, § 84-86, 5 January 2010).
Concerning the applicant’s complaint that he had
been denied a fair hearing by an independent and impartial tribunal on account
of the presence of a military judge on the bench of the State Security Court
which tried him, the Court notes that the military judges in the state security
courts were replaced by civilian judges in June 1999. In the present case, the
proceedings commenced before the Diyarbakır State Security Court only
after the public prosecutor’s indictment dated 22 December 2000, that is, after
the removal of the military judge from the bench. Accordingly, the applicant
was tried by a tribunal consisting of three civilian judges.
The Court considers that this complaint should be rejected for
being manifestly ill-founded under Article 35 § 4 of the Convention (see Sever
and Aslan v. Turkey (dec.), no. 33675/02, 12 April 2007; and Şaman
v. Turkey, no. 35292/05, § 39, 5 April 2011).
4. The remaining complaints
The applicant also made certain complaints under
Article 6 of the Convention concerning the unfairness of the proceedings, the
principle of equality of arms and the right to be presumed innocent.
The Court considers that none of the remaining
complaints seem to disclose any appearance of a violation of the rights and
freedoms set out in the Convention. These complaints are therefore inadmissible
for being manifestly ill-founded and must be rejected pursuant to Article 35 §
4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
The applicant claimed 40,000 euros (EUR) in
respect of pecuniary damage and EUR 50,000 in respect of non-pecuniary damage.
He further claimed EUR 2,178 for legal fees and EUR 242 for translation and
postal expenses. He did not submit any copies of invoices, but referred to the Diyarbakır
Bar Association’s tariff of fees for attorneys.
The Government contested these claims.
Deciding on an equitable basis, the Court awards
the applicant EUR 3,900 in respect of non-pecuniary damage.
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 and 3 (c) of the Convention, should he so
request (see Salduz, cited above, § 72).
As regards the costs and expenses, according to
the Court’s case-law, an applicant is entitled to 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 actually incurred the costs
claimed. In particular, he failed to submit documentary evidence, such as
bills, receipts, a contract, a fee agreement or a breakdown of the hours spent
by his lawyer on the case. Accordingly, the Court makes no award under this
head.
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 complaints concerning the
length of the criminal proceedings against the applicant, the absence of an
effective remedy for undue length of proceedings and the denial of access to a lawyer
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 available to the applicant while in
police custody;
3. Holds that there has been a violation of
Article 6 § 1 of the Convention on account of the excessive length of the
criminal proceedings;
4. Holds that there is no need to examine the
complaint raised under Article 13 of the Convention;
5. Holds
(a) that the respondent State is to pay the
applicant, within three months, EUR 3,900 (three thousand nine hundred euros),
to be converted into Turkish liras at the rate applicable at the date of
settlement, plus any tax that may be chargeable, in respect of non-pecuniary
damage;
(b) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the above
amount at a rate equal to the marginal lending rate of the European Central
Bank during the default period plus three percentage points;
6. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 26 November
2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Seçkin Erel Dragoljub
Popoviċ
Acting Deputy Registrar President
