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SECOND
SECTION
CASE OF MEHMET ZEKİ DOĞAN v. TURKEY
(Application
no. 38114/03)
JUDGMENT
STRASBOURG
6 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 Mehmet Zeki Doğan
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 15 September 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 38114/03) 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 Mehmet Zeki Doğan
(“the applicant”), on 13 November 2003.
- The
applicant was represented by Mr M.A. Kırdök and Mrs M.
Kırdök, lawyers practising in Istanbul. The Turkish
Government (“the Government”) were represented by their
Agent.
- On
13 May 2008 the Court
declared the application partly inadmissible and decided to
communicate to the Government the complaints concerning the use of
the applicant’s statements allegedly taken under
duress by the Istanbul State Security Court and the lack of
legal assistance to the applicant during his police custody. It 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 1978 and is serving his prison sentence in the
Edirne prison.
- On
13 March 1998 the applicant was taken into police custody on
suspicion of membership of an illegal organisation. On 15 March 1998
his statement was taken by the police and on 20 March 1998 he was
released due to lack of evidence.
- On
7 May 1998 the applicant was arrested once again on suspicion of
injuring a third person and collecting money by force from third
persons on behalf of an illegal organisation. On 12 May 1998 the
applicant was interrogated by the police in the absence of a lawyer.
On 14 May 1998 he was taken for a medical examination. The medical
report stated that there was no trace of ill-treatment on his body.
On the same day, the applicant was brought before the public
prosecutor and subsequently the investigating judge. Before both
officials, the applicant retracted his police statement, alleging
that he had been forced to sign it. After the questioning was over,
the investigating judge remanded the applicant in custody. On 25 May
1998 the public prosecutor at the Istanbul State Security Court filed
an indictment, charging the applicant under Article 146 of the former
Criminal Code with attempting to undermine the constitutional order.
On 13 December 2001 the Istanbul State Security Court convicted
the applicant of being a member of an illegal organisation and
sentenced him to fifteen years, seven months and fifteen days’
imprisonment, pursuant to Article 168 § 2 of the former Criminal
Code. In convicting the applicant, the first instance court relied,
inter alia, on the police statement of the applicant.
- On
8 July 2002 the Court of Cassation quashed the judgment of the
Istanbul State Security Court, holding that the applicant should have
been convicted under Article 146 of the former Criminal Code. After
re-examining the case file, on 12 November 2002 the Istanbul State
Security Court convicted the applicant under Article 146 of the
former Criminal Code and sentenced him to life imprisonment. On 5 May
2003 the Court of Cassation rejected the applicant’s appeal. On
2 June 2003 the decision of the Court of Cassation was deposited with
the Registry of the Istanbul State Security Court.
THE LAW
- Relying
on Article 6 §§ 1 and 3 (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,
allegedly under duress, had been used for his conviction.
- The
Government maintained that the applicant had not exhausted domestic
remedies, as required by Article 35 § 1 of the Convention, since
at no stage of the domestic proceedings did he rely on the fact that
he had been deprived of his right to legal assistance during police
custody. In the alternative, they stated that the application was
introduced outside the six months time-limit, since the applicant’s
police custody had ended on 14 May 1998 and, as of the first
hearing on 23 July 1998, the applicant was represented by a lawyer.
- The
Court notes that the restriction imposed on the applicant’s
right of 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. As a result this restriction applied as a
blanket rule and the applicant could not request the benefit of legal
assistance during his police custody.
Accordingly, the Court rejects the Government’s preliminary
objection regarding the exhaustion of domestic remedies. As to
the Government’s contention that the applicant failed to comply
with the six months time-limit, 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 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 second
objection cannot be upheld.
- The
Court notes that this remaining 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 the medical report dated 14 May 1998, which is not disputed by
the applicant, stated that there was no sign of ill-treatment on the
applicant’s body. There is no other evidence which could lead
to the conclusion that he had signed his police statement under
duress. Nevertheless, it is an undisputed fact that the applicant did
not have the assistance of a lawyer during this period. The Court
therefore considers it appropriate to limit its examination solely to
this matter.
- The
Court recalls 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). 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
applicant did not submit any claims for pecuniary or non-pecuniary
compensation. He only requested a retrial. Based on a legal fee
agreement, the applicant also requested 5,000 euros (EUR) in respect
of legal fees and 400 Turkish liras (TRY) (approximately EUR 190) in
respect of costs and expenses.
- The
Court considers that the most appropriate form of redress would
indeed 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).
- According
to its relevant case-law and the documents in its possession, the
Court also considers it reasonable to award the applicant the sum of
EUR 1,000 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
- Declares the remainder of the application
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 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, EUR 1,000 (one thousand
euros), plus any tax that may be chargeable to
the applicant, in respect of costs and expenses, to be
converted into Turkish liras at the rate applicable at the date of
settlement;
(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;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 6 October 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise
Tulkens
Registrar President
