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SECOND
SECTION
CASE OF GÖLÜNÇ v. TURKEY
(Application
no. 47695/09)
JUDGMENT
STRASBOURG
20
September 2011
This
judgment is final but it may be subject to editorial revision.
In the case of Gölünç
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
- The
case originated in an application (no. 47695/09) 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 Hakan Gölünç
(“the applicant”), on 12 August 2009. The applicant was
represented by Mr F. A. Tamer, a lawyer practising in
Istanbul. The Turkish Government (“the Government”) were
represented by their Agent.
- 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
- The
applicant was born in 1971 and lives in Istanbul.
- On
10 September 2002 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 the PKK (the
Kurdistan Workers’ Party) and KADEK (the Kurdistan Freedom and
Democracy Congress).
- On
11 September 2002 the applicant 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. It was expressly indicated in the form
that, as the applicant had been taken into custody in connection with
an offence falling within the jurisdiction of the State Security
Courts, he could only have access to a lawyer upon being remanded in
custody or after the prolongation of his detention in police custody
by a court order. In his statement, which was nine pages long, the
applicant explained that he had gone to Greece in 1999 illegally for
economic reasons, and to avoid military service. In Athens, he had
first taken refuge in an organisation controlled by the PKK and had
then joined a PKK camp, where he underwent political training. He had
subsequently been sent back to Istanbul and from there to Iran, where
he had joined another PKK camp and received further training. He had
returned to Istanbul in March 2002. He stated that he was only
interested in undertaking legal activities as opposed to acts of
violence.
- At
11.00 a.m. on 13 September 2002 the applicant was examined by a
doctor, who stated that there were no traces of ill-treatment on his
body.
- He
was brought before the Public Prosecutor at the Istanbul State
Security Court on the same day, again in the absence of a lawyer. The
applicant largely reiterated his police statements in respect of the
activities he had undertaken in Greece. However, he denied the part
about his activities in Iran, alleging that he had gone to Iran for
commercial reasons only. He further stated that he had not been
ill-treated in police custody, but only threatened.
- On
the same day the applicant was interrogated by a single judge at the
Istanbul State Security Court where he stated that he had not been
not engaged in any activities for the PKK and denied the parts of the
police statement which claimed otherwise. He further contended that
he had only stayed at a PKK camp in Greece out of necessity. The
judge ordered the applicant’s pre-trial detention at the end of
the questioning.
- On
27 September 2002 the Public Prosecutor at the Istanbul State
Security Court filed an indictment with that court against the
applicant and eight other persons, accusing the applicant with
membership of the PKK and KADEK, an offence under Article 168 (2) of
the former Criminal Code and Section 5 of the Prevention of Terrorism
Act.
- The
case against the applicant was subsequently transferred to the
Istanbul Assize Court following the abolition of State Security
Courts by Law no. 5190 of 16 June 2004.
- On
10 April 2006 the Twelfth Chamber of the Istanbul Assize Court
delivered its judgment. It acquitted four of the accused and
convicted the applicant and five other accused as charged and
sentenced the applicant to six years and three months of
imprisonment.
- In
convicting the applicant, the Istanbul Assize Court had regard to the
applicant’s statements to the police, the public prosecutor and
the single judge who had ordered his detention on remand. It also
took into consideration his co-defendants’ statements regarding
the applicant’s involvement with the PKK. The court further
noted that, although the applicant had denied all the charges against
him, such denial had no credibility in view of the evidence found in
the case file.
- On
4 December 2008 the Ninth Criminal Chamber of the Court of Cassation
upheld the judgment of the first-instance court. This decision was
deposited with the registry of the first-instance court on 23
February 2009.
II. RELEVANT DOMESTIC LAW
- 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 OF THE CONVENTION
- The
applicant complained under Articles 6 §§ 1 and 3 (c) of the
Convention that his defence rights had been violated as he had been
denied access to a lawyer during his detention in police custody. He
also argued that the length of the criminal proceedings against him
had been incompatible with the “reasonable time”
requirement of Article 6 § 1 of the Convention.
A. Admissibility
- The
Government asked the Court to reject the applicant’s complaints
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 them before the domestic
courts.
- The
Court reiterates that it has already examined and rejected the
Government’s preliminary objection in similar cases (see
Pekinel v. Turkey, no. 9939/02, §§ 41-43, 18 March
2008; 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 this
jurisprudence. The Court moreover notes that, contrary to the
Government’s allegations, the applicant did raise the complaint
regarding his inability to consult a lawyer at the initial stages of
the criminal proceedings a number of times during the proceedings,
including in his appeal request. Consequently, the Court rejects the
Government’s objection and declares this part of the
application admissible.
B. Merits
1. Lack of legal assistance in police custody
- The
applicant complained that he had been denied legal assistance during
his detention in police custody.
- The
Government argued that the absence of legal assistance at the initial
stages of the criminal proceedings did not affect the applicant’s
defence rights considering that he benefited from legal assistance at
the subsequent stages of the trial.
- The
applicant maintained his allegations.
- The
Court observes that it has already examined the same grievance in the
case of Salduz and found a violation of Article 6 § 3 (c)
of the Convention in conjunction with Article 6 § 1 (cited
above, §§ 56-63). In that judgment, the Court held that the
restriction imposed on the right of access to a lawyer was systematic
and applied to anyone held in police custody at the material time in
connection with an offence falling within the jurisdiction of the
State Security Courts.
- 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.
2. Excessive length of proceedings
- The
applicant complained under Articles 6 § 1 of the Convention that
the length of the criminal proceedings had been incompatible with the
“reasonable time” requirement.
- The
Government submitted that the length of the proceedings could not be
considered to be unreasonable in the instant case 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.
- The
applicant maintained his allegations.
- The
Court notes that the criminal proceedings commenced on 10 September
2002 when the applicant was taken into police custody, and ended on 4
December 2008 when the Court of Cassation delivered its final
decision. They thus lasted six years, two months and twenty-six days
before two levels of jurisdiction.
- 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 v.
Turkey, no. 21086/04, § 28, 16 July 2009; Yer and
Güngör v. Turkey, no. 21521/06 and 48581/07, § 20,
7 December 2010).
- There
has accordingly been a breach of Article 6 § 1 of the
Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant complained that neither the Istanbul State Security Court,
nor the Istanbul Assize Court had met the requirements of
independence and impartiality laid down in Article 6 § 1 of the
Convention. He further argued that he had been denied an effective
remedy under Article 13 of the Convention as he had not been
tried by an independent and impartial tribunal and the Ninth Criminal
Chamber of the Court of Cassation which had examined his appeal had
been politicised. He maintained under Article 6 § 1 of the
Convention that his statements had been extracted under duress in
police custody, including by way of physical ill-treatment, and that
the judgment of the Istanbul Assize Court had been erroneous, had
lacked reasoning and had been based on insufficient evidence. Lastly,
the applicant maintained that his imprisonment following an unfair
hearing had amounted to “torture” within the meaning of
Article 3 of the Convention.
- In
the light of all the material in its possession, the Court finds that
the above submissions by the applicant do not disclose any appearance
of a violation of the rights and freedoms set out in the Convention
or its Protocols. It follows that these complaints must be declared
inadmissible as being manifestly ill-founded, pursuant to Article 35
§§ 3 and 4 of the Convention (see, for a similar case, Feti
Ateş and Others v. Turkey, nos. 34759/04, 28588/05,
1016/06 and 19280/06, § 26, 21 December
2010).
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- The
applicant claimed 25,000 euros (EUR) in respect of non pecuniary
damage. He also claimed 2,680 pounds sterling (GBP) (equivalent of
approximately EUR 3,200 at the material time) for the costs and
expenses incurred before the Court, without submitting any documents
in support of his claims.
- 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 of the Convention, should he so
request (see, Salduz, cited above, § 72).
- As
regards the costs and expenses, the Court notes that according to its
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 were reasonable as to quantum.
In the present case, the Court observes that the applicant did not
produce any document in support of his claims. Accordingly, the Court
makes no award under this head (see Karataş and Yıldız
and Others v. Turkey, nos. 4889/05, 4897/05, 24009/05, 33694/05,
37759/05, 42996/06, 43031/06, 43019/06, 43038/06 and 43054/06, §
30, 16 July 2009).
- The
Court 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
- Declares the complaint concerning the lack of
legal assistance in police custody and the excessive length of
criminal proceedings admissible and the remainder of the application
inadmissible;
- 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;
- Holds that there has been a violation of Article
6 § 1 of the Convention on account of the length of criminal
proceedings against the applicant;
- Holds
(a) that
the respondent State is to pay the applicant, within three months EUR
3,900 (three thousand nine hundred euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage, 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 20 September 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Dragoljub
Popovic
Deputy Registrar President
