3790/09

SECOND SECTION             CASE OF DÜLEK v. TURKEY   (Application no. 3790/09)             JUDGMENT         STRASBOURG   18 February 2014           This judgment is final but it may be subject to editorial revision. In the case of Dülek v. Turkey, The European Court of Human Rights (Second Section), sitting as a Committee composed of:  Dragoljub Popović, President,  Paulo Pinto de Albuquerque,  Helen Keller, judges, and Stephen Phillips, Acting Deputy Section Registrar, Having deliberated in private on 28 January 2014, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.  The case originated in an application (no. 3790/09) 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, Ms Gazal Dülek (“the applicant”), on 12 January 2009. 2.  The applicant was represented by Mrs G. Tuncer, a lawyer practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent. 3.  On 20 October 2010 the application was communicated to the Government. THE FACTS I.  THE CIRCUMSTANCES OF THE CASE 4.  The applicant, Ms Gazal Dülek, is a Turkish national who was born in 1979 and lives in Istanbul. She is represented before the Court by Ms G. Tuncer, a lawyer practising in Istanbul. 5.  On 25 April 2000 the applicant was arrested on suspicion of aiding and abetting an illegal organisation, namely the PKK[1]. 6.  On 26 April 2000 she was arrested for interrogation at the Anti‑Terrorism Branch of the Istanbul Security Directorate (“the Anti-Terrorism Branch”). In her statement, taken in the absence of a lawyer, the applicant declared that she had worked as a secretary at a local branch of HADEP[2] for approximately five months and that she had been a member of the youth branch of HADEP since 1999. She also admitted that she was a member of the PKK, that on one occasion she had hidden a bomb in her house upon the request of another PKK member, that she had assisted in sending a number of persons to PKK camps in eastern Turkey and Iran and that she had acted as a messenger for some PKK members detained at the Ümraniye prison. The applicant duly signed her statement. 7.  At 11.20 a.m. on 30 April 2000 the applicant was examined by a doctor, who stated that there were no traces of ill-treatment on her body. 8.  Subsequently, on the same day, the applicant was brought before the Public Prosecutor at the Istanbul State Security Court, again in the absence of a lawyer. The applicant alleged that at the Anti-Terrorism Branch, she had been forced to sign a statement which had been prepared by the police officers and stated that she did not even know the content of the statement. When her police statement was read out to her, she denied any involvement in the activities mentioned therein, apart from her membership of the youth branch of HADEP and her work experience there. 9.  On the same day, the applicant was further interrogated by a single judge at the Istanbul State Security Court, in the absence of a lawyer. She denied all the accusations against her, reiterating the statement she had made before the public prosecutor. At the end of the questioning, the judge ordered her pre-trial detention. 10.  On 4 May 2000 the Public Prosecutor at the Istanbul State Security Court filed an indictment with that court against the applicant and four other persons, accusing the applicant of membership of an illegal organisation under Article 168 (2) of the former Criminal Code (Law no. 765). 11.  On 7 August 2000 the Istanbul State Security Court, composed of three civilian judges, held its first hearing. The applicant made her defence statement at the fourth hearing held on 18 April 2001, and denied all the charges against her. The applicant also denied her police statement, alleging that she had been forced to sign it without knowing its content. At the end of the hearing the Istanbul State Security Court ordered the applicant’s release. 12.  On 3 September 2003 the Istanbul State Security Court convicted the applicant under Article 169 of the former Criminal Code of aiding and abetting an illegal organisation. Accordingly it sentenced her to three years and nine months’ imprisonment. In convicting her, the State Security Court mainly relied on the applicant’s police statement, and the statements made by her co-defendants. 13.  On 19 October 2004 the Court of Cassation quashed the judgment of the Istanbul State Security Court. 14.  In the meantime, 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 accordingly transferred to the Istanbul Assize Court. 15.  On 14 April 2008 the Istanbul Assize Court convicted the applicant of membership of an illegal organisation under Article 314 (2) of the new Criminal Code (Law no. 5237) based on the evidence in the file and sentenced her to six years and three months’ imprisonment. 16.  On 27 October 2009 the Court of Cassation upheld the judgment of the first-instance court. It expressly held that the assize court had correctly classified the offence committed by the applicant as membership of an illegal organisation. II.  RELEVANT DOMESTIC LAW AND PRACTICE 17.  The relevant domestic law and practice in force at the material time, as well as recent developments, can be found in Salduz v. Turkey ([GC], no. 36391/02, §§ 27-44, 27 November 2008). THE LAW I.  ALLEGED VIOLATIONS OF ARTICLES 6 AND 13 OF THE CONVENTION 1.  Right to access to a lawyer 18.  The applicant alleged under Article 6 of the Convention that her defence rights had been violated as she had been denied access to a lawyer during her police custody. 19.  The Government contested the allegations. 20.  The Court considers that this complaint should be examined under Article 6 §§ 1 and 3 (c) of the Convention, of which the relevant part reads as follows: “1.  In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” ... 3.  Everyone charged with a criminal offence has the following minimum rights: ... (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.” 21.  The Court considers 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 and must therefore be declared admissible. 22.  The Court notes that the parties do not dispute that the applicant was denied legal assistance during the custody period. 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 under the jurisdiction of the State Security Courts (see Salduz, cited above, §§ 56-63).  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. 23.  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 in the present case. 2.  Length of the criminal proceedings 24.  The applicant complained that the length of the proceedings had exceeded the “reasonable time” requirement and alleged that there had been no domestic remedy available under Turkish law whereby she could challenge the length of the criminal proceedings in question. She relied on Articles 6 § 1 and 13 of the Convention, which read as follows: Article 6 § 1 “In the determination of ... any criminal charge against him everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” Article 13 “Everyone whose rights and freedoms as set forth in the Convention are violated shall have an effective remedy before a national authority...” 25.  The Government contested the claims. 26.  The Court notes that the criminal proceedings commenced on 25 April 2000 with the applicant’s arrest and ended on 27 October 2009 with the final decision delivered by the Court of Cassation. They thus lasted for nine years and six months before two levels of jurisdiction. 27.  The Court observes that a new domestic remedy was established in Turkey after the application of the pilot judgment procedure in the case of Ümmühan Kaplan v. Turkey (no. 24240/07, 20 March 2012). The Court recalls that in its decision in the case of Turgut and others v. Turkey (no. 4860/09, 26 March 2013), it declared a new application inadmissible on the grounds that the applicants had failed to exhaust domestic remedies as a new domestic remedy had been envisaged. In so doing, the Court considered in particular that this new remedy was, a priori, accessible and capable of offering a reasonable prospect of redress for complaints concerning the length of proceedings. 28.  The Court further recalls that in its decision in the case of Ümmühan Kaplan v. Turkey (cited above, § 77) it stressed that it could pursue the examination of the applications of this type which were already 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. 29.  In light of the above, the Court decides to pursue the examination of the present application. However, it notes that this conclusion is without prejudice to an exception that may ultimately be raised by the Government in the context of other communicated applications. 30.  Having said that, 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. 31.  As regards Article 6 § 1, the Government argued that the length of the proceedings in the present case had been reasonable and contended that there had been no delay in the proceedings which could be attributable to the national authorities. 32.  The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among others, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII, and Ümmühan Kaplan, cited above, § 49). 33.  Having examined all the material submitted to it and having regard to its case-law on the subject, the Court considers that in the instant case 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). 34.  The Court therefore holds that there has accordingly been a breach of Article 6 § 1 of the Convention. 35.  In view of the above (see paras. 27-28 above) the Court considers that it is unnecessary to examine the complaint raised under Article 13 of the Convention (see Rıfat Demir v. Turkey, no. 24267/07, § 41, 4 June 2013). II.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION 36.  The applicant further complained under Article 6 of the Convention that she had been convicted on the basis of statements extracted from her under duress and alleged that she had been denied a fair hearing by an independent and impartial tribunal on account of the presence of a military judge on the bench of the State Security Court which tried her. The applicant also complained about the assessment of evidence by the domestic courts and the lack of a hearing before the Court of Cassation. 37.  In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court considers that the remainder of the complaints do not disclose any appearance of a violation of any of the above Articles of the Convention. It follows that these complaints are inadmissible for being manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention. III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION 38.  The applicant claimed EUR 50,000 (euros) in respect of non‑pecuniary damage. Furthermore, she also asked the Court to make an award for pecuniary damage, but did not specify a specific sum. The applicant further claimed EUR 3,545 for legal fees covering 26 hours’ of legal work and EUR 175 for translation and postal expenses. In this respect, she submitted a legal fee agreement. 39.  The Government contested these claims. 40.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. 41.  The Court 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 she so request (see, Salduz, cited above, § 72). 42.  The Court also considers that the applicant must have suffered further non-pecuniary damage and therefore, taking into account the circumstances of the present case and ruling on an equitable basis, awards the applicant EUR 6,500 in respect of non-pecuniary damage. 43.  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 of a reasonable amount. Taking account of the documents in its possession and to its case-law, the Court finds it reasonable to award EUR 1,000 under this heading. 44.  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.  Declares the complaints concerning the length of the criminal proceedings against the applicant, the absence of an effective remedy for undue length of proceedings and the denial of access to a lawyer 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 available to the applicant while in police custody;   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;   4.  Holds that that there is no need to examine the complaint raised under Article 13 of the Convention;   5.  Holds (a)  that the respondent State is to pay the applicant, within three months the following amount, to be converted into Turkish liras at the rate applicable at the date of settlement: (i)  EUR 6,500 (six thousand five hundred euros) plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii)  EUR 1,000 (one 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 18 February 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.  Stephen Phillips Dragoljub Popović  Acting Deputy Registrar President [1] Kurdistan Workers’ Party. [2] The People’s Democracy Party.