CASE OF MEHMET DUMAN v. TURKEY

1. The case originated in an application (no. 38740/09) 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 Mehmet Duman (“the applicant”), on 6 July 2009.
2. The applicant was represented by Mr M. Özbekli, a lawyer practising in Diyarbakır. The Turkish Government (“the Government”) were represented by their Agent.
3. The applicant complained, in particular, of the restrictions on his right of access to a lawyer while in police custody and the use by the trial court of his statements allegedly obtained by torture and in the absence of a lawyer to convict him. He further alleged that he had not had a fair trial by an independent and impartial tribunal on account of the presence of a military judge on the bench of the Diyarbakır State Security Court.
4. On 31 August 2012 the application was communicated to the Government.
5. On 7 October 2016 the Court invited the Government to submit further observations, if they so wished, following the judgment in Ibrahim and Others v. the United Kingdom ( [GC], nos. 50541/08 and 3 others, ECHR 2016).
I. THE CIRCUMSTANCES OF THE CASE
6. The applicant was born in 1975 and is serving a sentence in Diyarbakır prison.
7. On 12 September 1994 the applicant was arrested on suspicion of membership of an illegal organisation, namely Hizbullah. He was allegedly subjected to torture while held in police custody, which lasted twenty-two days.
8. The applicant was questioned by the police at the Diyarbakır Security Directorate. Subsequently, the Diyarbakır Public Prosecutor took statements from him in the absence of a lawyer, concerning his involvement in the activities of Hizbullah. In his statements, the applicant admitted his membership of the illegal organisation and mentioned certain activities in which he had participated.
9. On 20 September 1994 the applicant participated in an on-site inspection ( keşif ) and a reconstruction of events ( yer gösterme ), in the course of which he confessed, in the absence of a lawyer, to committing some offences.
10. On 25 September 1994 the applicant participated in another on-site inspection and reconstruction of events, in the course of which he confessed, again in the absence a lawyer, to other offences.
11. Twenty-two days after his arrest, namely on 4 October 1994, a doctor at Diyarbakır Public Hospital drew up a collective medical report in respect of the applicant and twenty-seven other suspects. According to the report, there were no traces of ill-treatment on the applicant ’ s body.
12. On the same day, the applicant was questioned by the investigating judge in the absence of a lawyer. He retracted the statements he had made to the police and the prosecutor, alleging that he had given them under duress. The investigating judge ordered the applicant ’ s remand in custody.
13. Owing to a lack of prison places, the applicant was not put in prison but was kept at the anti-terrorism branch of the Diyarbakır Security Directorate for three more days, during which time he was allegedly subjected to torture again.
14. On 24 October 1994 the Diyarbakır Public Prosecutor issued an indictment charging the applicant and twenty-one others under Article 125 of the former Turkish Criminal Code with seeking to destroy the unity of the Turkish State and to remove part of the country from the State ’ s control by killing and injuring numerous individuals. Seven other individuals were charged under Articles 168 and 169 of the same Code. The criminal proceedings commenced before the Diyarbakır State Security Court, the bench of which included a military judge.
15. On 4 November 1994 the Diyarbakır State Security Court held a preparatory hearing and decided that the first hearing would take place on 18 November 1994.
16. At the second hearing held on 23 January 1995 the applicant gave evidence in the presence of his lawyer and retracted the statements he had made to the police and the public prosecutor, alleging that they had been obtained through torture. He further stated that he had no relationship with the illegal organisation and that all the acts attributed to him had been a sham orchestrated by the police.
17. At the hearings of 28 April, 8 December and 28 December 1995, the State Security Court heard evidence from F.E., C.D., H.Y., C.Ö., İ.A. and M.A. as witnesses and from İ.Ç. as a complainant.
18. At the hearing held on 26 January 1996 the State Security Court informed the applicant that he was entitled to lodge a complaint with the public prosecutor concerning his allegations of torture against the police officers.
19. At the hearings of 22 August, 4 October and 15 November 1996, the State Security Court heard evidence from H.O., Ş.D. and M.H.B. as witnesses, and from S.Ö. as a complainant.
20. On 22 August 1996 the applicant maintained his allegation that he had been tortured while in police custody and applied to the court for his release and acquittal.
21. At the hearings of 5 August and 30 December 1997, the State Security Court heard evidence from A.Y. and M.E. as witnesses.
22. On 6 November 1997 the applicant stated that he had been coerced by the police into admitting to the acts attributed to him.
23. At the hearings of 5 March and 3 December 1998, the State Security Court heard evidence from A.Y. and A.Ö. as witnesses.
24. While the criminal proceedings against the applicant were pending, on 18 June 1999 the Constitution was amended and the military judge sitting on the bench of the Diyarbakır State Security Court was replaced by a civilian judge.
25. In the first thirty-four hearings that were held until the hearing of 20 July 1999, the composition of the Diyarbakır State Security Court changed seventeen times. Each time the previous reports were read out as a result of the change in the composition of the trial court.
26. At the hearing of 20 July 1999, the Diyarbakır State Security Court, composed of three civilian judges, read out the previous reports as a result of the change in the composition of the trial court.
27. On 15 January 2002, 23 October 2003 and 12 May 2005 the public prosecutor filed additional indictments against the applicant, charging him under Article 146 of the former Turkish Criminal Code. In total, the applicant was accused of taking part in the killing of nineteen people and of injuring eight others on behalf of Hizbullah. The Diyarbakır State Security Court joined all the cases owing to the link between them.
28. By virtue of Law no. 5190 of 16 June 2004, published in the Official Gazette on 30 June 2004, State Security Courts were abolished. Therefore, the Diyarbakır Assize Court acquired jurisdiction over the case.
29. At a hearing held on 2 February 2007, the applicant applied to the court for his acquittal.
30. On 26 February 2007 the Diyarbakır Assize Court convicted the applicant under Article 146 § 1 of the former Criminal Code and sentenced him to life imprisonment. The trial court relied on, inter alia, the statements the applicant had given to the police and the public prosecutor, the reports of the reconstruction of events and the on-site inspection, as well as the statements of some of the co-accused and the witness F.E. It rejected the applicant ’ s contention that he had been tortured while in police custody on the grounds that according to the medical report dated 4 October 1994, no traces of ill-treatment had been found on him. According to the reasoned judgment, thirty other co-defendants who had given incriminating statements to the police denied the accusations against themselves when giving evidence in person before the trial court. In particular, twenty-eight of them had fully retracted their police statements before the trial court while two of them had partially done so.
31. The applicant appealed and on 16 April 2009 the Court of Cassation upheld the judgment. It appears from the decision of the Court of Cassation that the applicant ’ s request for a correction of his age had been dismissed by the Diyarbakır Assize Court.
32. In 2010 the applicant requested a copy of the medical report prepared on 4 October 1994 from the Diyarbakır Public Prosecutor ’ s Office. On 5 February 2010 he was informed that all the documents prepared in 1994 had been destroyed in 2004.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Provisions on the right of access to a lawyer
33. The relevant provisions of the former Code of Criminal Procedure (Law no. 1412), namely Articles 135, 136 and 138, provided that anyone suspected or accused of a criminal offence had a right of access to a lawyer from the moment he was taken into police custody. Under section 31 of Law no. 3842 of 18 November 1992, which amended the legislation on criminal procedure, the above-mentioned provisions were not applicable to persons accused of offences falling within the jurisdiction of the State Security Courts. On 15 July 2003, by virtue of Law no. 4928, the restriction on an accused ’ s right of access to a lawyer in proceedings before the State Security Courts was lifted (see Salduz v. Turkey [GC], no. 36391/02, §§ 27 ‑ 29, ECHR 2008).
B. Probative value of evidence gathered during the preliminary investigation
34. While statements made during questioning may be taken into consideration by the judge in his assessment of the facts of a case, they must nonetheless be made voluntarily, and statements obtained through the use of pressure or force are not admissible in evidence. Under Article 247 of the former Code of Criminal Procedure, as interpreted by the Court of Cassation, any confessions made to the police or the public prosecutor ’ s office must be repeated before the judge if the record of the questioning containing them is to be admissible as evidence for the prosecution. If the confessions are not repeated, the records in question are not allowed to be read out as evidence in court and consequently cannot be relied on to support a conviction. Nevertheless, even a confession repeated in court cannot on its own be regarded as a decisive piece of evidence but must be supported by additional evidence (see Dikme v. Turkey, no. 20869/92, § 38, ECHR 2000 ‑ VIII).
I. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (c) OF THE CONVENTION
35. The applicant complained that he had been denied the assistance of a lawyer while in police custody. He also complained that the trial court had convicted him on the basis of his police statements, which he alleged had been obtained by torture. He relied on Article 6 of the Convention. The Court considers that these complaints 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 ...”
36. The Government argued that the overall fairness of the applicant ’ s trial had not been prejudiced by the absence of a lawyer.
37. The Court notes that this complaint 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.
38. The applicant complained that he had been deprived of legal assistance pursuant to section 31 of Law no. 3842, as he was accused of committing an offence that fell within the jurisdiction of the State Security Courts. He further maintained that in convicting him, the trial court had used statements obtained by the police as a result of ill-treatment.
39. Referring to the Court ’ s judgment in the case of Salduz v. Turkey ([GC], no. 36391/02, ECHR 2008), the Government submitted that they were aware of the Court ’ s case-law under Article 6 § 3 (c) of the Convention. According to the Government, the first-instance court carefully assessed the applicant ’ s allegation that his statements had been taken under duress while in police custody and found it groundless in the light of the medical report dated 4 October 1994 which stated that no traces of ill ‑ treatment had been found on him.
40. The Court notes that the applicant ’ s access to a lawyer was restricted by virtue of Law No. 3842 and was as such a systemic restriction applicable at the time of his arrest (see Salduz, cited above, § 56).
41. The Court does not consider it necessary to examine whether the systemic nature of the restriction on the applicant ’ s right of access to a lawyer was, in itself, sufficient to find a violation of Article 6 §§ 1 and 3 (c) of the Convention, as, in any event, the Government have not offered any compelling reasons for the restriction. Nor have they demonstrated that the absence of legal assistance at the initial stage of the investigation did not irretrievably prejudice the applicant ’ s defence rights (see Salduz, cited above, § 58, and Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3 others, § 274.) In that respect, the Court notes that in convicting him, the first-instance court relied on, inter alia, the evidence collected in the absence of a lawyer during the applicant ’ s twenty-two days ’ detention, such as his statements to the police and the public prosecutor and his statements taken during the reconstruction of events and the on-site inspections.
Moreover, it did not examine the admissibility of the evidence obtained in the absence of a lawyer at the trial. Likewise, the Court of Cassation dealt with this issue in a formalistic manner and failed to remedy this shortcoming (see Bayram Koç v. Turkey, no. 38907/09, § 23, 5 September 2017 ).
42. With regard to the applicant ’ s complaint about the use of statements allegedly obtained as a result of ill-treatment, the Court notes that he failed to comply with the six-months time-limit in respect of his complaints under Article 3 of the Convention (see paragraphs 50 - 53 below). However, the Court reiterates that the absence of an admissible Article 3 complaint does not, in principle, preclude the Court from taking into consideration the applicant ’ s allegations that the police statements had been obtained using methods of coercion or oppression and that their admission to the case file, relied upon by the trial court, therefore constituted a violation of the fair trial guarantee of Article 6 (see Aydın Çetinkaya v. Turkey, no. 2082/05, § 104, 2 February 2016).
43. In that connection, the Court notes that the trial court relied on the medical report dated 4 October 1994 and, accordingly, on the absence of any traces of ill ‑ treatment to declare the applicant ’ s statement before the police and the public prosecutor admissible. However, the medical report relied on by the trial court only documents the applicant ’ s situation as of 4 October 1994, whereas all the investigative measures in which he was involved, namely the reconstruction of events, the on-site inspections and the taking of his statements by the police, had been carried out between 12 and 25 September 1994 that is some time before the medical report had been drawn up.
44. Furthermore, the Court reiterates that it has held, in a number of cases against Turkey, that collective medical examinations could only be described as superficial and cursory (see Mehmet Eren v. Turkey, no. 32347/02, § 41, 14 October 2008 and the references therein). As a result, it held that no decisive importance could be attributed to collective medical reports. The same is also true of the medical report in the instant case.
45. Even assuming that this was not the case, the Court notes that the trial court did not refer to any other medical report concerning the applicant ’ s state of health from the date of his arrest until 4 October 1994. In other words, the trial court did not assess the quality of the evidence and whether the circumstances in which it was obtained during the applicant ’ s twenty-two days ’ detention cast doubt on its reliability or accuracy. This is all the more problematic, given that not only the applicant, but also the overwhelming majority of the co-defendants who had confessed to their crimes when giving statements to the police denied those confessions during the trial, alleging that they had been ill-treated. The Court finds it significant that thirty other co-defendants who gave incriminating statements to the police rejected the accusations against themselves in their statements to the trial court. Hence, whilst the applicant failed to provide any tangible evidence in support of his ill-treatment allegations during the preliminary investigation stage, the fact that most of the co-defendants also confessed to their crimes during the same period, and subsequently denied them, alleging coercion, raises a prima facie case, and thus reasonable doubts as to the reliability and accuracy of such evidence (see Shabelnik v. Ukraine, no. 16404/03, § 59, 19 February 2009).
46. In these circumstances, the Court is not convinced that the trial court took any realistic steps to shed light on the conditions in which crucial evidence against the applicant was collected during his detention between 12 September 1994 and 4 October 1994. This is all the more problematic in view of the fact that the trial court relied on that evidence when sentencing the applicant to life imprisonment, despite the fact that he retracted them on several occasions (see, in respect of the same set of proceedings, Abdulgafur Batmaz v. Turkey, no. 44023/09, § 51, 24 May 2016).
47. The foregoing considerations are sufficient to enable the Court to conclude that there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
48. The applicant further complained that his right to a fair trial had been breached on account of the involvement of a military judge in part of his trial before the Diyarbakır State Security Court.
49. The Court considers that this complaint may be declared admissible. However, having regard to the facts of the case and its finding of a violation of Articles 6 § 1 and 6 §§ 3 (c) of the Convention, the Court considers that there is no need to give a separate ruling on the merits of the applicant ’ s complaints under this head (see Abdulgafur Batmaz, cited above, § 54).
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
50. The applicant alleged that he had been subjected to torture while being held in police custody for twenty-two days.
51. The Court observes that the applicant can be considered to have brought the substance of his complaint to the notice of the authorities when he was questioned by the investigating judge (see Veznedaroğlu v. Turkey ( dec. ), no. 32357/96, 7 September 1999).
52. However, in the circumstances of the present case, the failure of the judicial authorities to act must have been apparent to the applicant by 26 February 2007, when the Diyarbakır Assize Court gave its judgment without addressing the matter. In the absence of any indication that the applicant repeated his ill-treatment allegations before the Court of Cassation, the Court is unable to take the starting point for the running of the six-month period provided for in Article 35 of the Convention later than 26 February 2007 ( see Mehmet Reşit Arslan v. Turkey, no. 31320/02, §§ 23 ‑ 25, 31 January 2008). Accordingly, the applicant must have become aware of the ineffectiveness of the remedies available in domestic law by that date. This complaint should therefore have been introduced no later than August 2007, whereas it was introduced on 6 July 2009.
53. It follows that this part of the application has been introduced out of time and must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.
54. The applicant alleged under Article 5 § 3 of the Convention that the period of his remand in custody had been unreasonably long.
55. The Court observes that the applicant was taken into police custody on 12 September 1994 and that his pre-trial detention ended on 26 February 2007, when the Diyarbakır Assize Court convicted him. However, the applicant did not introduce his application with the Court until 6 July 2009, that is, more than six months later.
56. It follows that this part of the application was introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
57. The applicant further complained of being unable to benefit from the provisions concerning the reduction of a sentence due to the age of the accused. He further submitted that evidence in his favour had not been taken into consideration by the trial court. He relied on Article 6 of the Convention.
58. However, 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 finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention. It follows that this part of the application is manifestly ill ‑ founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
59. 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.”