SECOND SECTION
CASE OF
ÇARKÇI v. TURKEY (No .2)
(Application no.
28451/08)
JUDGMENT
STRASBOURG
October 2014
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 Çarkçı v. Turkey
(no. 2),
The European Court of Human
Rights (Second Section), sitting as a Chamber composed of:
Guido Raimondi, President,
Işıl Karakaş,
András Sajó,
Nebojša Vučinić,
Egidijus Kūris,
Robert Spano,
Jon Fridrik Kjølbro, judges,
and Abel Campos, Deputy Section Registrar,
Having deliberated in private on 23 September 2014,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
28451/08) 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 Önder Çarkçı (“the
applicant”), on 25 May 2008.
The applicant was represented by Mrs G. Tuncer, a
lawyer practising in Istanbul. The Turkish Government (“the Government”) were
represented by their Agent.
On 29 March 2011 the application was communicated
to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1973 and is currently
serving a sentence in Kandıra Prison.
On 17 July 1996 the applicant was wounded by a
gunshot in the vicinity of a jewellery shop, which had been robbed by a group of
people, allegedly including him. During the incident, shots were fired and the
owner of the shop was shot dead. The applicant was unconscious when admitted to
the emergency department of the hospital.
On 18 July 1996 the gendarmerie took statements from
the applicant, which he did not sign. They noted that as the applicant’s hands
were wounded and bandaged, he was unable to sign them. In these statements, the
applicant admitted that he had been involved in the armed robbery. He stated, inter
alia, that he had had a gun in his possession, which he had used during the
robbery after the shop owner had begun firing. He also stated that he had
committed the offence with two other people.
On 22 July 1996 the officers took further
statements from the applicant and the applicant’s fingerprint was added in lieu
of a signature. On the same day, he was discharged from the emergency department
of the hospital. According to a document drafted and signed by a doctor, the
applicant had undergone a thoracotomy and laparotomy while there.
On 23 July 1996 the applicant was taken to the
gendarmerie for questioning. According to a document drafted by three officers,
the applicant’s doctors had authorised his transfer to custody. On the same day,
he was asked to identify the guns allegedly used in the incident. He was also
asked to identify two other people who had been arrested in connection with the
same robbery. According to reports drawn up by the officers on the same day,
the applicant’s condition deteriorated at around 11 p.m. and he was therefore
taken back to hospital.
On 25 July 1996 the applicant was brought before
the public prosecutor and the investigating judge. According to a document
containing his statements to the judge, the applicant did not ask to be
represented by a lawyer. He once again admitted that he had been involved in the
armed robbery, but denied the accusation that he had killed the owner of the
shop. The applicant’s fingerprint was added at the end of the statements. On
the same day, the investigating judge ordered his pre-trial detention.
While being questioned in custody and
subsequently by the public prosecutor and the judge, the applicant was not
represented by a lawyer.
On 9 August 1996 the public prosecutor at the
Bakırköy Assize Court filed an indictment against the applicant and three
other people, charging them with armed robbery and murder.
On 21 February 1997 the public prosecutor at the
Istanbul State Security Court filed a second indictment against the applicant
and eight other people, accusing them of being members of the THKP-C (Turkish
People’s Liberation Party/Front) and of attempting to undermine the
constitutional order by force.
On 27 September 1996 the applicant told the Bakırköy
Assize Court that he had not been involved in the armed robbery in question. He
submitted that he had been in possession of a firearm as he had enemies, and
had used the gun as he had heard gunshots when he was in the vicinity of the
incident. He had thought that he had been attacked by his enemies, and had
therefore opened fire.
On 13 May 1997 in his defence submissions to the
Istanbul State Security Court, the applicant challenged the veracity of his
statements taken between 17 and 22 July 1996 and claimed that they had been
taken by the gendarmerie while he was unconscious in hospital.
In decisions of 23 October 1997 and 29 April
1998 respectively, the Istanbul State Security Court and the Bakırköy
Assize Court decided to join the two sets of criminal proceedings against the
applicant with another case before the Istanbul State Security Court on the
ground that there was a factual and legal link between the cases (1996/180E).
In a petition dated 18 June 1998 to the Istanbul
State Security Court, the applicant’s
representative contended that the applicant had been seriously injured on 17
July 1996, and that when his statements drafted by the security officers had
been taken on 18 July 1996, he had been in such a state that he could not even
sign them. The lawyer alleged that the security forces had made up a scenario
implicating the applicant in the armed robbery and in terrorist-related
activities.
On 28 June 1998 the applicant’s representative told
the Istanbul State Security Court that the applicant had not known the people whose
names had been mentioned in his statements and had denied their veracity, as their
contents had been concocted by the security forces.
. On
18 June 1999 Article 143 of the Constitution was amended, excluding military
members from State Security Courts. As a consequence, the military judge
sitting on the bench of the Istanbul Security Court was replaced by a civilian
judge. Following the abolition of State
Security Courts by Law no. 5190 of 16 June 2004, the case against the applicant
was transferred to the Istanbul Assize Court.
. On
20 March 2007 the applicant’s representative told the Assize Court that the
applicant’s statements had been taken by the gendarmerie under torture.
On 30 May 2008 the Istanbul Assize Court
convicted the applicant under Article 146 § 1 of the
former Criminal Code of attempting to undermine the constitutional order
by force and sentenced him to “aggravated” life imprisonment (without the
possibility of parole). Basing its decision on ballistic, autopsy and other
expert reports, statements taken from the accused, the shop owner’s cousin, who
had intervened in the proceedings as a civil party, witnesses and all other
evidence available in the case file, the court established that the applicant
and three other people were accomplices in the armed robbery on behalf of the THKP-C
and in murder.
On 11 March 2009 the Court of Cassation upheld
the judgment of the first-instance court.
II. RELEVANT DOMESTIC LAW AND PRACTICE
The relevant domestic
law and practice in force at the material time can be found in the case of Salduz
v. Turkey ([GC], no. 36391/02, §§ 27-31, 27 November 2008).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE
CONVENTION
Referring to the placing of his fingerprint on
official documents instead of a signature, the applicant complained under
Article 3 of the Convention that his statements had been taken by the security
forces while he had been unconscious in hospital. He also submitted under the
same provision that he had been forced to make statements to the gendarmerie
and participate in identification parades even though his health condition had
not allowed him to leave hospital. Article 3 of the Convention reads as
follows:
“No one shall be subjected to torture or to inhuman or
degrading treatment or punishment.”
The Government submitted that the applicant had
been unable to sign his statements to the gendarmerie and other official
documents between 18 and 22 July 1996 as his hands had been bandaged.
The Court reiterates at the outset that in
assessing evidence, it has generally applied the standard of proof “beyond
reasonable doubt” (see Labita v. Italy [GC], no. 26772/95, § 121, ECHR 2000‑IV). However, such
proof may follow from the coexistence of sufficiently strong, clear and
concordant inferences or of similar unrebutted presumptions of fact.
Turning to the circumstances of the present
case, as regards the applicant’s allegation that his fingerprint had been placed
on the documents containing his statements when he was unconscious in hospital,
the Court observes that he was wounded on 17 July 1996 and underwent inpatient surgery
(see paragraph 7 above). It further observes that his initial questioning
within the investigation took place during that time, and that the documents
containing his statements to the gendarmerie did not bear his signature (see
paragraphs 6 and 7 above).
However, even assuming that the applicant’s
allegation that his fingerprint was placed on his statements without his
knowledge is true, there is nothing in the case file demonstrating that in
hospital he was subjected to treatment which would fall within the scope of
Article 3. The Court notes in this connection that the applicant and his
representatives only told the domestic courts that the applicant had been
unconscious when his statements were taken in hospital and that they reflected
a scenario that had been made up by the security forces (see paragraphs 14, 16
and 17 above). In fact, these submissions made to the trial courts aimed at
challenging the reliability and admissibility in evidence of the statements in
question. No details of the alleged duress or ill-treatment were given by the
applicant to the trial courts or to the Court. Nor did he submit any evidence
to that effect. The Court therefore considers that this part of his allegations
under Article 3 of the Convention is unsubstantiated.
As regards the applicant’s questioning by the
security forces and his participation in identification parades on 23 July
1996, the Court observes that although the applicant made submissions to the
Court regarding his transfer to the gendarmerie and back to hospital, he and
his lawyers failed to raise these issues before the domestic courts. According
to the documents drafted by the security forces, the applicant was taken out of
hospital after his doctors had authorised his discharge and was taken back again
by the gendarmerie on the same day, when his medical conditioned worsened (see
paragraph 8 above). The applicant did not challenge the veracity of these
documents before the national authorities or the Court. On 20 March 2007 one of the applicant’s
representatives told the trial court that the applicant had been subjected to
ill-treatment while being questioned by the gendarmerie (see paragraph 19
above), but she failed to give a detailed account of the alleged ill-treatment.
There is nothing in the case file demonstrating that the applicant’s alleged
suffering due to his transfer to the gendarmerie on 23 July 1996 and his
questioning on the same day were severe enough to be categorised as
ill-treatment prohibited by Article 3 of the Convention.
In sum, the Court concludes that the applicant’s
complaints under Article 3 are manifestly ill-founded and must be rejected in
accordance with Article 35 §§ 3 (a) and 4 of the Convention.
II. ALLEGED VIOLATIONS OF ARTICLE 6 OF THE
CONVENTION
The applicant complained under Article 6 § 1 of
the Convention that he had not been tried by an impartial court, due to the
presence of a military judge in the composition of the Istanbul State Security
Court. He also claimed under the same provision that a judge who had been
involved in the examination of his case before the Istanbul State Security
Court had also presided over the Istanbul Assize Court following the transfer
of the proceedings there. Lastly, he submitted under Article 6 § 1 of the
Convention that the length of the criminal proceedings brought against him had
exceeded the reasonable time requirement.
The applicant complained under Article 6 § 3 of
the Convention that the statements not bearing his signature had been used as
evidence against him and that he had been unable to benefit from the assistance
of a lawyer while being questioned by the gendarmerie. He further contended
under the same provision that he had not been adequately informed about the
charges against him at the time of his arrest, nor provided adequate time and
facilities to prepare his defence while in hospital.
Article 6 of the Convention, in so far relevant,
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:
(a) to be informed promptly, in a language which he
understands and in detail, of the nature and cause of the accusation against
him;
(b) to have adequate time and facilities for the
preparation of his defence;
(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 these arguments.
A. Admissibility
The Government submitted that the judgment
against the applicant had become final on 11 March 2009, whereas his application
had been lodged on 25 May 2008. They therefore asked the Court to dismiss the
applicant’s complaints for non-exhaustion of domestic remedies.
The applicant did not make any submissions on
this issue.
The Court reiterates that it has already
examined and rejected this objection by the Government in cases similar to the
present application (see, for example, E.K. v. Turkey (dec.), no.
28496/95, 28 November 2000). It finds no particular circumstances which
would require it to depart from this conclusion. Consequently, it rejects the
Government’s objection.
As regards the applicant’s complaint regarding
the length of the criminal proceedings brought against him, the Court would
like to stress that a new domestic remedy has been established in Turkey since
the application of the pilot judgment procedure in the case of Ümmühan
Kaplan v. Turkey (no. 24240/07, 20 March 2012). The Court observes
that 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 domestic remedies, as a new domestic remedy
had been established. 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 notes that in Ümmühan
Kaplan (cited above, § 77) it stressed that it could pursue the examination
of applications of this type which have already been 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 the light of the
above, the Court decides to pursue the examination of the present application
(see Rıfat Demir v. Turkey, no. 24267/07, §§ 34‑36, 4
June 2013).
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.
B. Merits
1. Absence of legal assistance at the initial stages
of the criminal proceedings and the use of allegedly unlawful evidence against
the applicant
The applicant complained under Article 6 § 3 of
the Convention that he had not been provided with legal assistance at the early
stages of the criminal proceedings, and that the documents not bearing his
signature had been used as evidence against him.
The Government contested these allegations,
arguing that the applicant’s conviction was not based solely upon his
statements taken by the gendarmerie, and maintained that the authorities had
fully complied with the domestic legislation in force at the time.
The Court considers that these complaints should
be examined under Article 6 § 3 (c) of the Convention in conjunction with
Article 6 § 1.
The Court notes that it is not in dispute
between the parties that the applicant was denied legal assistance when the
documents containing his statements were drafted by the gendarmerie between 18
and 23 July 1996. 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 within the jurisdiction of the State
Security Courts (see Salduz v. Turkey ([GC], no. 36391/02, §§ 56-63, 27 November 2008,
§§ 56‑63, and Dayanan v. Turkey, no. 7377/03, § 30‑34,
13 October 2009).
The Court again notes that the documents
containing the applicant’s statements to the gendarmerie taken on 18 and 22
July 1996 when he was in hospital did not bear his signature (see paragraphs 6
and 7 above). The Court observes in this connection that even though the
applicant denied the accuracy of the contents of these statements taken from
him in the absence of legal assistance, and alleged that he had not been
conscious when they were drafted, the domestic courts failed to examine the
admissibility of the evidence in the case file before going on to examine the
merits of the case. What is more, at the end of the proceedings, the Istanbul
Assize Court relied on these documents when convicting the applicant (see
paragraph 20 above).
In these circumstances, the Court finds that the
applicant was undoubtedly affected by the restrictions on his access to a
lawyer in the course of his custody, during which his statements were allegedly
taken without his knowledge. It follows that neither the assistance provided
subsequently by lawyers nor the adversarial nature of the ensuing proceedings
could remedy the defects which had occurred earlier (see Salduz, cited
above, § 58).
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 of the Convention.
2. Length of the criminal proceedings against the
applicant
The applicant submitted under Article 6 § 1 of
the Convention that the criminal proceedings brought against him had not been
concluded within a reasonable time.
The Government contended that the length of the
proceedings could not be considered unreasonable in view of the complexity of
the case, the number of accused and the seriousness of the charges against the
applicant.
The Court observes that the period to be taken
into consideration began on 17 July 1996 and ended on 11 March 2009. It thus
lasted over twelve years and seven months at two levels of jurisdiction.
The Court has frequently found violations of
Article 6 § 1 of the Convention in cases raising issues similar to those in the
present case (see, among many other authorities, Pélissier and Sassi v.
France [GC], no. 25444/94, § 67, ECHR 1999‑II, and İbrahim
Güler v. Turkey, no. 1942/08, § 44, 15 October 2013). Having examined
all the material submitted to it, the Court considers that the Government have
not put forward any fact or argument capable of persuading it to reach a
different conclusion in the present case. Having regard to its case-law on the
subject, the Court considers that the length of the proceedings was excessive
and failed to meet the “reasonable time” requirement.
There has accordingly been a breach of Article 6
§ 1 of the Convention.
3. Other alleged violations of Article 6 of the
Convention
The applicant maintained under Article 6 § 1 of the
Convention that he had not been tried by an independent and impartial court. He
further complained under Article 6 § 3 that he had not been adequately informed
about the charges against him at the time of his arrest, or provided adequate
time and facilities to prepare his defence.
Having regard to the facts of the case, the
submissions of the parties and its finding of a violation of Article 6 §§ 1 and
3 (c) above (see paragraphs 43 and 48 above), the Court considers that it
has examined the main legal questions raised under Article 6 in the present
case. It concludes, therefore, that there is no need to make a separate ruling
on the applicant’s remaining complaints under this provision (see Kamil Uzun
v. Turkey, no. 37410/97, § 64, 10 May 2007, Getiren v. Turkey,
no. 10301/03, § 132, 22 July 2008, Güveç v. Turkey, no. 70337/01, §
135, 20 January 2009, and Böke and Kandemir v. Turkey, nos. 71912/01,
26968/02 and 36397/03, § 73, 10 March 2009).
III. ALLEGED VIOLATIONS OF ARTICLE 5 OF THE
CONVENTION
The applicant complained under Article 5 §§ 3
and 4 of the Convention that his detention in police custody had been
unreasonably lengthy, and that there had been no domestic remedy by which he
could have challenged the lawfulness of that detention.
The Court reiterates that according to the
established Convention case-law, where no domestic remedy is available the
six-month period runs from the date of the act alleged to constitute a
violation of the Convention; however, where it concerns a continuing situation,
the period of six months runs from the end of the situation concerned (see Ege
v. Turkey (dec.), no. 47117/99, 10 February 2004, and Doğan v.
Turkey (dec.), no. 67214/01, 7 June 2005).
The Court notes that the applicant’s police
custody ended on 25 July 1996, whereas the application was lodged with the
Court on 25 May 2008, that is to say, more than six months later. It follows
that this part of the application was lodged out of time and must be rejected
in accordance with Article 35 §§ 1 and 4 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the
Convention provides:
“If the Court finds that there
has been a violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only partial
reparation to be made, the Court shall, if necessary, afford just satisfaction
to the injured party.”
A. Damage
The applicant claimed 100,000 euros (EUR) in
respect of non-pecuniary damage. He further stated that he had suffered
financial loss on account of his detention in prison.
The Government
contested the applicant’s claim, submitting that the requested amount was
unsubstantiated and excessive.
The Court observes
that the applicant did not substantiate his claim for pecuniary damage. It
therefore rejects that claim. The Court however finds that he must have
suffered pain and distress which cannot be compensated for solely by the Court’s
finding of a violation. Having regard to the nature of the violations found,
the Court finds it appropriate to award him EUR 9,200 in respect of
non-pecuniary damage.
. The
Court further considers that the most appropriate form of redress would be the
retrial of the applicant in accordance with the requirements of Article 6 of
the Convention, should he so request (see Salduz, cited above, § 72).
B. Costs and expenses
The applicant also claimed EUR 4,500 for his
lawyer’s fees and EUR 170 for stationery, photocopying and translation
costs as well as postage costs incurred before the Court. The applicant
submitted a time-sheet showing that his legal representative had carried out
thirty-six hours’ legal work, and a breakdown of
administrative costs.
The Government contested these claims,
submitting that they were unsubstantiated.
According to the Court’s case-law, 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 are
reasonable as to quantum. In the present case, regard being had to the
documents in its possession and the above criteria, the Court considers it
reasonable to award the sum of EUR 2,000 covering costs under all heads.
C. Default interest
The Court considers it appropriate that the
default interest rate 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 under Article 6 of
the Convention 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 afforded to the applicant while in the custody
of the gendarmerie, during which his statements were allegedly taken without
his knowledge;
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 against the applicant;
4. Holds that there is no need to examine the
remaining complaints under Article 6 of the Convention;
5. 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 the currency of the
respondent State at the rate applicable at the date of settlement:
(i) EUR 9,200 (nine thousand two hundred euros),
plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 2,000 (two 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;
6. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 14 October 2014,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Abel Campos Guido
Raimondi
Deputy Registrar President
