European Court of Human Rights

 

 

 

SECOND SECTION

CASE OF OCAKLI v. TÜRKİYE

(Application no. 84212/17)

 

 

 

 

JUDGMENT
 

STRASBOURG

27 June 2023

 

 

 

 

 

 

 

This judgment is final but it may be subject to editorial revision.

 

In the case of Ocaklı v. Türkiye,

The European Court of Human Rights (Second Section), sitting as a Committee composed of:

  Pauliine Koskelo , President ,
  Lorraine Schembri Orland,
  Davor Derenčinović , judges ,
and Dorothee von Arnim, Deputy Section Registrar,

Having regard to:

the application (no. 84212/17) against the Republic of Türkiye lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") on 27 November 2017 by a Turkish national, Mr Osman Nuri Ocaklı ("the applicant"), who was born in 1966 and lives in Istanbul and who was represented by Ms Ö. Gümüştaş, a lawyer practising in Istanbul;

the decision to give notice of the complaints under Article 6 of the Convention concerning the alleged unfairness of the criminal proceedings to the Turkish Government ("the Government"), represented by their Agent, Mr   Hacı   Ali Açıkgül, Head of the Department of Human Rights of the Ministry of Justice of the Republic of Türkiye, and to declare inadmissible the remainder of the application;

the parties' observations;

the decision to reject the Government's objection to the examination of the application by a Committee;

Having deliberated in private on 6 June 2023,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1 .     The application concerns the alleged unfairness of proceedings on account of the restriction placed on the applicant's right to a lawyer pursuant to Law no. 3842 and the subsequent use of statements made by him in the absence of a lawyer to secure his conviction.

2.     It further concerns the use by the trial court of evidence given by the applicant's co-defendants allegedly under duress and in the absence of a lawyer to convict him.

3 .     The Court has previously found both a substantive and a procedural violation of Article 3 of the Convention in respect of one of the applicant's co-accused, namely S.G., on account of the torture inflicted on him in police custody in order to obtain information from him about his suspected connection with the MLKP (Marxist-Leninist Communist Party); S.G.'s evidence was allegedly wrongfully used by the trial court to convict the applicant (see Serdar Güzel v. Turkey , no. 39414/06, §§ 32-46, 15   March 2011).

4 .     Lastly, the application pertains to the applicant's allegation that the Constitutional Court failed to examine his complaint regarding his inability to obtain legal advice or assistance when making statements to the police and the subsequent use of those statements by the trial court to convict him.

5.     On 3 December 2013 the Istanbul Assize Court convicted the applicant under Article 146 of the former Criminal Code of attempting to disrupt or subvert the constitutional order and to undermine Parliament or prevent it by the use of force from carrying out its role. It relied on, among other things, statements made to the police by the applicant's co-accused S.G. and M.T. and sentenced the applicant to aggravated life imprisonment (without parole).

6.     On 1 July 2015 the Court of Cassation upheld the applicant's conviction.

7.     On 24 May 2017 the Constitutional Court declared the individual application lodged by the applicant inadmissible as being manifestly ill - founded. In respect of the applicant's complaint concerning the use of evidence obtained under torture to convict him, the Constitutional Court found that "the purportedly unlawful evidence" had not been the sole basis for the applicant's conviction, given that the conviction had been based on a substantial body of evidence. The Constitutional Court went on to hold that there was no evidence capable of demonstrating that "the purportedly unlawful evidence" had not been assessed or that the examination of it had been deficient, or that the applicant had not been provided with an appropriate opportunity to submit his own evidence, to have it examined and to put forward his objections. Accordingly, the applicant's complaint was in the nature of a further appeal and should therefore be declared inadmissible, given that the domestic courts' decisions did not contain any manifest error of assessment or arbitrariness.

THE COURT'S ASSESSMENT

1. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE USE OF EVIDENCE given by M.T. and S.G. ALLEGEDLY UNDER TORTURE and in the absence of a lawyer

8.     The Government invited the Court to declare this part of the application inadmissible on the ground that the applicant's complaints were aimed at challenging the domestic courts' assessment of the evidence and the outcome of the proceedings; they were therefore of a fourth-instance nature.

9.     The applicant filed no observations on this point.

10.     The Court considers that this part of the application raises complex issues of facts and law which cannot be determined without an examination on the merits. It finds that the application is neither manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention nor inadmissible on any other grounds and must therefore be declared admissible.

11.     The applicant submitted that he had not had a fair trial because his conviction had been based on evidence which M.T. and S.G. had given under torture and without a lawyer being present.

12.     The Government asserted that the assessment of the criminal proceedings should not be made solely from the standpoint of whether the statements of the co-defendants had been made under duress and in the absence of a lawyer but that the entirety of the proceedings should be taken into account. In that connection, the Government averred that the probative value of the remaining evidence, including the applicant's admission that he had been a member of the MLKP terrorist organisation and the discovery of a gun during a search of his house, had been the decisive factor in his conviction. There was therefore no prejudice which could have influenced the outcome of the case.

13.     The general principles regarding the use in criminal proceedings of evidence obtained in breach of Article 3 of the Convention may be found in Gäfgen v. Germany ([GC], no. 22978/05, §§ 165-67, ECHR 2010) and regarding the use of evidence obtained by ill-treatment of third persons in Othman (Abu Qatada) v. the United Kingdom (no. 8139/09, §   263, ECHR   2012 (extracts)); and Stephens v. Malta (no. 3) (no. 35989/14, §   67, 14   January 2020).

14.     The general principles concerning the use of evidence given by co - defendants or witnesses in the absence of a lawyer have been summarised in Beuze v. Belgium ([GC], no. 71409/10, §§ 119-50, 9 November 2018); Stephens (cited above, §§ 64-67); and Erkapić v. Croatia (no.   51198/08, §§  
72 - 73, 25 April 2013). In such cases, the Court's task under Article 6 of the Convention primarily focuses on the domestic courts' assessment of the impact that the absence of a lawyer might have had on the overall fairness of the criminal proceedings and on ascertaining whether that absence was such as to render the proceedings incompatible with the guarantees of a fair trial. Ensuring that an applicant has been able to test the admissibility, reliability, authenticity and veracity of the evidence given without a lawyer being present constitutes the central pillar of the Court's examination.

15.     In the present case the trial court relied on, among other evidence, the statements made to the police by S.G., which were used to convict the applicant. The Court has previously found a violation of Article 3 of the Convention in respect of S.G. on the grounds that he was subjected to torture while in police custody (see paragraph 3 above). It was during this period that the statements used to secure the applicant's conviction were extracted from him.

16.     The Court reiterates that the admission of statements obtained through torture or other forms of ill-treatment in breach of Article 3 of the Convention as evidence to establish the relevant facts -   as in the present case   - automatically renders the criminal proceedings as a whole unfair (see also Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08and 3   others, §   254, 13 September 2016). In that connection, the Court notes with regret that the review carried out by the Constitutional Court in respect of the use of statements obtained under torture in the present case fits ill with the Court's clear case-law on the subject. There is likewise no room to entertain the Government's argument that the overall fairness of the criminal proceedings against the applicant should not be assessed solely on the basis that the evidence of his co-defendants was given under torture, but that the other evidence used to secure his conviction should also be taken into account.

17.     Even though the above findings are sufficient by and of themselves to give rise to a violation of Article 6 § 1 of the Convention, the Court further notes that the trial court did not assess the impact of the absence of a lawyer when M.T. and S.G. made their statements to the police before relying on those statements to convict the applicant. Nor did the trial court assess the admissibility, reliability, authenticity and veracity of the evidence given by those persons. The Court of Cassation also failed to address those crucial points when upholding the trial court's judgment. Similarly, the applicant's complaint before the Constitutional Court about the use in evidence of statements made by S.G. and M.T. without a lawyer being present was not duly dealt with.

18.     There has accordingly been a violation of Article 6 § 1 of the Convention.

19.     In view of the above findings, the Court holds that there is no need to assess whether M.T. also gave statements to the police under duress or as a result of ill-treatment.

2. OTHER COMPLAINTS

20.     The applicant also complained under Article 6 of the Convention about the restriction placed on his right to a lawyer and the subsequent use of statements made by him in the absence of a lawyer to secure his conviction and about the Constitutional Court's failure to examine his complaint in this regard (see paragraphs 1 and 4 above). Having regard to the facts of the case, the submissions of the parties, and its findings above, the Court considers that it has dealt with the main legal issues raised by the case and that there is no need to examine the remaining complaints (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, §   156, ECHR   2014).

APPLICATION OF ARTICLE 41 OF THE CONVENTION

21.     The applicant claimed 20,000 euros (EUR) in respect of non-pecuniary damage and EUR 3,500 in respect of costs and expenses incurred in the domestic courts and before the Court, including translation fees. In support of his claims as regards costs and expenses, the applicant submitted legal-fee agreements and a receipt for translation costs corresponding to approximately EUR   3,000.

22.     The Government contested those claims.

23.     The Court awards the applicant EUR 7,800 in respect of non-pecuniary damage, plus any tax that may be chargeable. The Court further considers that the most appropriate form of redress would be a retrial in accordance with the requirements of Article 6 of the Convention, should the applicant so request (see Süleyman v. Turkey , no. 59453/10, §   110, 17   November 2020).

24.     Having regard to the documents in its possession, the Court considers it reasonable to award EUR 3,000 as regards costs and expenses under all heads, plus any tax that may be chargeable to the applicant.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares admissible the complaints concerning the use of statements given by S.G. and M.T. under torture and without a lawyer being present;
2. Holds that there has been a violation of Article 6 § 1 of the Convention owing to the use of statements given by S.G. under torture and without a lawyer being present and of statements given by M.T. without a lawyer being present;
3. Holds that there is no need to examine the merits of the complaint concerning the use of statements given by M.T. under torture under Article   6 of the Convention;
4. Holds that there is no need to examine the admissibility and merits of the remaining complaints under Article 6 of the Convention;
5. Holds

(a)   that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i)   EUR 7,800 (seven thousand eight hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)   EUR 3,000 (three 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 27 June 2023, pursuant to Rule  
77   §§   2 and 3 of the Rules of Court.

 

  Dorothee von Arnim   Pauliine Koskelo
  Deputy Registrar   President