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SECOND SECTION

CASE OF SAPAN v. TURKEY

(Application no. 17252/09)

JUDGMENT

STRASBOURG

20 September 2011

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

SAPAN v. TURKEY JUDGMENT 1

In the case of Sapan v. Turkey,The European Court of Human Rights (Second Section), sitting as a

committee composed of:Dragoljub Popović, President,András Sajó,Paulo Pinto de Albuquerque, judges,

and Françoise Elens-Passos, Deputy Section Registrar,Having deliberated in private on 30 August 2011,Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 17252/09) 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 Lokman Sapan (“the applicant”), on 4 March 2009. The applicant was represented by Mr İ. Akmeşe, a lawyer practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent.

2. On 26 May 2010 the President of the Second Section decided to give notice of the application to the Government. In accordance with Protocol No. 14, the application was allocated to a Committee.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

3. The applicant was born in 1978 and lives in Istanbul.4. On 11 March 2003 the applicant was taken into police custody by

police officers from the Anti-Terrorism Branch of the Istanbul Security Directorate on suspicion of membership of an illegal organisation, namely the KADEK (the Kurdistan Freedom and Democracy Congress).

5. On 13 March 2003 he was interrogated at the Anti-Terrorism Branch in the absence of a lawyer. According to a form explaining arrested persons’ rights which the applicant had signed, he had been reminded of the charges against him and of his right to remain silent. In his statement, he admitted his membership of DEHAP (the Democratic People’s Party) and his involvement with the youth branch of HADEP (the People’s Democracy Party). He further stated that in 2000 he had attempted to go to the camps of the PKK (the Kurdistan Workers’ Party) in Iran, but was caught by the

2 SAPAN v. TURKEY JUDGMENT

gendarmerie in Van before he could cross the border. The applicant admitted that he had participated in a number of demonstrations organised by DEHAP, where he had chanted slogans in support of Öcalan and the PKK. However, he refused to make a statement regarding his involvement in an illegal demonstration organised in Bahçelievler, Istanbul, on 12 March 2003, where the demonstrators had shouted slogans in support of the PKK and had vandalised banks and shops.

6. In the meantime, on 13 March 2003 the applicant saw his lawyer from 10.30 to 10.55 a.m. It is not possible to ascertain from the documents in the case file whether this meeting took place prior to or after the police questioning or what the meeting involved.

7. On 15 March 2003 the applicant was brought before the Public Prosecutor at the Istanbul State Security Court in the absence of a lawyer, where he only partially verified his police statement. He explained that, although he was a member of DEHAP, he had never undertaken any actions to aid and abet KADEK and that he disapproved of the violent acts carried out by this organisation. He denied having chanted illegal slogans in any of the demonstrations in which he had participated in the past. He also denied having taken part in the demonstration of 12 March 2003.

8. On the same day the applicant’s lawyer requested to see the applicant and to examine the investigation file. The Istanbul State Security Court dismissed the lawyer’s requests, relying on the relevant provisions of the Code of Criminal Procedure in force at the material time (Law no. 1412), which denied these rights to persons accused of offences falling within the jurisdiction of State Security Courts at that stage of the proceedings.

9. Later on the same day the applicant was interrogated by a single judge at the Istanbul State Security Court, in the presence of his lawyer, where he repeated the statements he had made before the public prosecutor. Denying all the accusations against him, the applicant retracted his statement to the police, which had allegedly been extracted under duress. His lawyer added that the demonstrations about which the applicant had been questioned had all been lawful events. After the questioning was over, the judge ordered the applicant’s pre-trial detention.

10. On 20 March 2003 the Public Prosecutor at the Istanbul State Security Court filed an indictment with that court, accusing the applicant and six other persons with membership of the PKK and KADEK, an offence under Article 168 (2) of the former Criminal Code (Law no. 765) and Section 5 of the Prevention of Terrorism Act (Law no. 3713).

11. On 11 June 2003 the State Security Court held its first hearing, in the presence of the applicant and his lawyer. It heard evidence from the applicant in person, who denied the charges against him. He also rejected his police statement, alleging that it had been extracted from him under duress. The State Security Court ordered the applicant’s release at the end of this hearing.


12. 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 Istanbul Assize Court.

13. On 25 April 2007 the Eleventh Chamber of the Istanbul Assize Court convicted the applicant as charged.

14. On 16 June 2009 the Court of Cassation upheld the judgment of the first-instance court.

II. RELEVANT DOMESTIC LAW

15. The relevant domestic law and practice in force at the material time can be found in Salduz v. Turkey ([GC], no. 36391/02, §§ 27-44, 27 November 2008).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 3 (c) OF THE CONVENTION

16. Relying on Article 6 §§ 1 and 3 of the Convention, the applicant complained that he had been denied the assistance of a lawyer during his detention in police custody, as well as before the public prosecutor, and that his police statement which had been taken in the absence of a lawyer and which had involved self-incriminating statements had been used in his conviction by the trial court.

17. The Government argued that the applicant could not claim to be a victim within the meaning of Article 34 of the Convention because, despite his allegations to the contrary, he had seen his lawyer on 13 March 2003 prior to his questioning by the police, albeit briefly. In the alternative, the Government asked the Court to reject this complaint for failure to comply with the requirement of exhaustion of domestic remedies under Article 35 § 1 of the Convention on the ground that the applicant had failed to raise it before the domestic courts.

18. As regards the Government’s first preliminary objection, the Court notes that the question whether the applicant can be considered to have lost his victim status with respect to his complaint under Article 6 § 3 (c) of the Convention on account of his apparently brief meeting with his lawyer while in police custody is closely linked to the substance of the applicant’s complaint. The Court therefore joins the Government’s objection on this point to the merits (see, mutatis mutandis, Ümit Gül v. Turkey, no. 7880/02, § 63, 29 September 2009).


19. 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.

20. The Court notes 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 the applicant indeed saw a lawyer on 13 March 2003 for a short period of time, between 10.30 and 10.55 a.m. It is not, however, possible to discern from the documents in the case file whether this meeting took place before or after the applicant made his police statement, or what it involved. What is, however, clear to the Court is that the applicant’s lawyer had not been allowed to examine the investigation file at that point (see paragraph 8 above), which would seriously hamper her ability to provide any sort of meaningful legal advice to the applicant. The Court further notes that it is undisputed between the Parties that the applicant had no legal assistance at the time of making his police statement or during the interrogation before the public prosecutor. In this connection, the Court recalls that in its Salduz judgment (cited above, §§ 54-55), 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 at the time of the applicant’s detention in police custody 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 for a brief period, this meeting cannot be considered to have been sufficient by Convention standards (see for similar cases, Fatma Tunç v. Turkey (no. 2), no. 18532/05, § 14, 13 October 2009; Hüseyin Habip Taşkın v. Turkey, no. 5289/06, § 21, 1 February 2011).

22. In the light of the foregoing factors and conclusions, the Court dismisses the Government’s objection that the applicant lacked victim status.

23. 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 finds no particular circumstances which would require it to depart from its findings in the aforementioned Salduz judgment.

24. 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 ARTICLES 6 § 1 AND 13 OF THE CONVENTION

25. The applicant complained under Articles 6 § 1 and 13 of the Convention that the length of the criminal proceedings against him had been incompatible with the “reasonable time” requirement and that there had been no effective remedies in domestic law in respect of his Convention grievances.

26. The Government argued that the applicant had failed to exhaust domestic remedies within the meaning of Article 35 § 1 of the Convention as he had not raised the substance of his complaints before the national authorities.

27. The Court notes that the Government’s objection is closely linked to the merits of the applicant’s complaint under Article 13 of the Convention that there had not been an effective domestic remedy whereby he could challenge the excessive length of the proceedings in dispute. It follows therefore that this issue should be joined to the merits of the case (see Daneshpayeh v. Turkey, no. 21086/04, § 24, 16 July 2009).

28. The Court further notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. Nor are they inadmissible on any other grounds. They must therefore be declared admissible.

29. As regards the merits of the complaint under Article 6 § 1 of the Convention, the Government submitted that the length of the proceedings could not be considered to be unreasonable in view of the complexity of the case, the number of the accused and the nature of the offence with which the applicant was charged.

30. The Court notes that the criminal proceedings in question commenced on 11 March 2003 when the applicant was taken into police custody, and ended on 16 June 2009 when the Court of Cassation delivered its final decision. They thus lasted six years, three months and eight days before two levels of jurisdiction.

31. Having examined all the material submitted to it, the Court considers that the length of the proceedings was excessive and failed to meet the “reasonable time” requirement (see Daneshpayeh, cited above, § 28; Yer and Güngör v. Turkey, no. 21521/06 and 48581/07, § 20, 7 December 2010).


32. There has accordingly been a breach of Article 6 § 1 of the Convention.

33. As regards the merits of the complaint under Article 13 of the Convention, the Court has examined similar issues in previous applications and has found violations of Article 13 of the Convention in respect of the lack of an effective remedy under Turkish law whereby the applicants could have contested the length of the proceedings at issue (see Daneshpayeh, cited above, §§ 35-38). It finds no reason to depart from that conclusion in the present case.

34. The Court accordingly dismisses the Government’s preliminary objection and concludes that there has been a violation of Article 13 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

35. The applicant claimed 20,000 euros (EUR) in respect of non-pecuniary damage. He further claimed 2,950 Turkish liras (TRY) (equivalent of approximately EUR 1,500) for legal fees and TRY 800 (equivalent of approximately EUR 405) for translation, stationery and postal expenses. He submitted a fee agreement signed with his lawyer and an invoice in the amount of TRY 2,950 as proof of payment made to his lawyer.

36. The Government contested these claims.37. Deciding on an equitable basis, the Court awards the applicant

EUR 3,900 in respect of non-pecuniary damage.38. 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).

39. 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. Regard being had to the documents in its possession and to its case-law, the Court finds it reasonable to award EUR 1,500 under this head.

40. 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. Joins to the merits the Government’s preliminary objection on the issue of the applicant’s victim status in respect of the complaint under Article 6 § 3 (c) that the applicant had no legal assistance while in police custody and dismisses it;

2. Joins to the merits the Government’s preliminary objection on the issue of exhaustion of domestic remedies in respect of the complaint under Articles 6 § 1 and 13 regarding the length of proceedings and dismisses it;

3. Declares the application admissible;

4. 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;

5. Holds that there has been a violation of Article 6 § 1 of the Convention on account of the excessive length of the criminal proceedings;

6. Holds that that there has been a violation of Article 13 of the Convention;

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

(i) EUR 3,900 (three thousand nine hundred euros) plus any tax that may be chargeable, in respect of non-pecuniary damage;(ii) EUR 1,500 (one thousand five hundred 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;

8. Dismisses the remainder of the applicant’s claim for just satisfaction.


Done in English, and notified in writing on 20 September 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Françoise Elens-Passos Dragoljub PopovićDeputy Registrar President

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