SECOND SECTION

DECISION

Application no . 38802/08 Mahsume ÅžEDAL against Turkey

The European Court of Human Rights ( Second Section ), sitting on 13 May 2014 as a Chamber composed of:

Guido Raimondi , President, Işıl Karakaş , András Sajó , Nebojša Vučinić , Egidijus Kūris , Robert Spano , Jon Fridrik Kjølbro , judges, and Stanley Naismith , Section Registrar ,

Having regard to the above application lodged on 7 August 2008 ,

Having regard to the observations submitted by the parties,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Ms Mahsume Şedal , is a Turkish national, who was born in 1977 and is currently serving a prison sentence in İzmir . She was represented before the Court by Mr K. Bayaz ı t , a lawyer practising in Hakkari , Turkey. The Government were represented by their Agent.

A. The circumstances of the case

2. The facts of the case, as submitted by the parties , may be summarised as follows.

3. On 28 August 2004, at around 4 p.m., the applicant was arrested on suspicion of involvement in the armed operations of the PKK (the Kurdistan Workers ’ Party), an illegal armed organisation.

4 . Following her arrest, at 6 p.m., she underwent a medical examination at the Istanbul Forensic Medicine Institute. The report drawn up there noted no injuries on her body.

5. Later on the same day, the applicant was taken to the Anti ‑ Terrorist Branch of the Istanbul Security Headquarters , where she was placed in custody.

6. According to the records held, that day the applicant met with her lawyer. The document was signed by both the applicant and her lawyer.

7. The next day, on 29 August 2004, the applicant was questioned by the police. Before the questioning, she was reminded of her rights, including the right to benefit from legal assistance. According to the official statement, she refused legal assistance and proceeded to give certain information about her training within the PKK and the structure of the illegal organisation. She signed both the official statement and an additional document indicating her refusal of legal assistance.

8. On 30 August 2004 the applicant consulted with her lawyer in person once again. Both the applicant and her lawyer signed the police records noting that meeting.

9. On 1 September 2004 the applicant underwent a second medical examination at the Forensic Medicine Institute. She complained that during her police custody she had been slapped, had her hair pulled, been pushed to the ground and been deprived of sleep. The report drawn up following the examination noted no indication of physical violence on the applicant ’ s body.

10. On the same day the applicant was brought before the Istanbul public prosecutor, whe n she gave her statements in the presence of a lawyer. She reiterated her allegations of ill-treatment and denied her previous statements, indicating that they had been taken under duress. The applicant ’ s lawyer also maintained before the public prosecutor that he had not been allowed to see the applicant at the Anti-Terrorist Branch.

11. Subsequently, the applicant was brought before the investigating judge at the Istanbul Assize Court. There, once again in the presence of her lawyer, she repeated the statements she had made before the public prosecutor. She further maintained that she had been beaten while in police custody. At the end of the questioning, the investigating judge ordered the applicant ’ s detention on remand .

12. On 29 September 2004 the Istanbul public prosecutor filed an indictment with the Istanbul Assize Court, accusing the applicant of membership of the PKK , an offence under Article 168 § 2 of the Criminal Code in force at the time (Law no. 765).

13. At various hearings before the Istanbul Assize Court, the applicant stated that she had left the PKK on account of her health problems and of her own free will, and had never been involved in any armed acts carried out by the illegal organisation. She also reiterated her allegations of ill ‑ treatment in police custody before the court . During the course of the proceedings, the applicant was represented by a lawyer.

14. At a hearing on 25 December 2006 the Istanbul public prosecutor submitted his observations, further accusing the applicant of carrying out activities with the aim of bringing about the secession of part of the national territory, under Article 125 of the former Criminal Code .

15. On 7 May 2007, o n the basis of various pieces of evidence, including the applicant ’ s statements before the public prosecutor and the investigating judge, the findings of two searches conducted in her residence, telephone records and several witness statements, the Istanbul Assize Court sentenced the applicant to life imprisonment under Article 125 of the former Criminal Code. The court also relied on the applicant ’ s police statements and maintained that they were corroborated by evidence obtained subsequently from the Şırnak Gendarmerie Command. In response to the applicant ’ s submissions about the use of those statements , taken in the absence of a lawyer , the court indicated that she had waived her right to legal assistance before being questioned. The court did not make any comments with regard to the applicant ’ s allegations of ill-treatment.

16. On 13 February 2008 the Court of Cassation upheld the judgment of the first-instance court, again with no mention of the alleged ill-treatment.

B. Relevant domestic law

17. A description of the relevant domestic law can be found in Yoldaş v. Turkey , no. 27503/04 , § § 24-27 , 23 February 2010 .

COMPLAINTS

18. The applicant complained under Articles 3 and 13 of the Convention that she had been subjected to ill-treatment during her time in police custody and that the authorities had failed to initiate an investigation into her allegations.

19. Relying on Article 6 § 1 of the Con vention, the applicant maintained that the proceedings against her had lasted for an excessively long period of time.

20. The applicant sub mitted under Article 6 § 3 (c) of the Convention in conjunction with Article 6 § 1 that she had been denied legal assistance during her p olice custody. She also maintained that she had been forced to make self- incriminating statements.

21. Finally, she argued under Article 14 of the Convention that she had been discriminated against because of her Kurdish origins.

THE LAW

A. Complaint under Article 3 of the Convention

22 . The applicant alleged under Articles 3 and 13 of the Convention that she had been subjected to physical violence while in police custody and that no investigation had been conducted into her allegations.

23. The Government argued that the applicant ’ s allegations were unsubstantiated in that the medical reports drawn up in her respect indicated no sign of physical violence.

24. In response to the Government ’ s observations, the applicant reiterated her previous submissions.

25. The Court considers that these complaints should be examined from the standpoint of Article 3 of the Convention .

26. It observes that the applicant underwent two medical examinations at the Istanbul Forensic Medicine Institute: the first being two hours after her arrest and the second immediately after her police custody. Although she complained of having been subjected to ill-treatment during her time at the Anti-Terrorist Branch of the Istanbul Security Directorate, the second report noted no indication of any such physical violence on her body. In that connection, the Court observes that the applicant did not request an additional examination. Nor did she describe the alleged acts in detail.

27. Having regard to the foregoing, the Court accepts the Government ’ s argument and concludes that there is nothing in the case file to substantiate the applicant ’ s allegations of having been beaten by the police.

28. It follows that this part of the application is manifestly ill-founded and must be rejected under Article 35 §§ 3 (a) and 4 of the Convention.

B. Complaint under Article 6 §§ 1 and 3 (c) of the Convention

29. The applicant alleged under Article 6 § 3 (c) of the Convention in conjunction with Article 6 § 1 that she was not able to benefit from legal assistance during her time in police custody. In that respect, she argued that although her lawyer had come to the Anti-Terror ist Branch of the Istanbul Security Directorate to provide legal assistance, he had been prevented by the police officers from seeing her .

30. The Government maintained that before questioning by the police, the applicant had been informed that she had the right to ask for a lawyer. They argued that the applicant had waived her right to legal assistance of her own free will in that she had had the opportunity to consult her lawyer, with whom she had met before and after questioning. They considered accordingly that the complaint should be declared inadmissible.

31. In her observations the applicant did not clarify whether she had met with her lawyer while in police custody. She argued that the Government ’ s submissions proved that she had also asked for her lawyer to be present during questioning but had not been allowed to benefit from legal assistance.

32. The Court first of all refers to its well-established case-law, according to which the right of everyone charged with a criminal offence to be effectively defended by a lawyer is one of the fundamental features of a fair trial (see Salduz v. Turkey [GC], no. 36391/02, § § 50-5 5 , ECHR 2008 ). It reiterates that in order for the right to a fair trial to remain sufficiently “practical and effective”, Article 6 § 1 of the Convention requires that, as a rule, access to a lawyer should be provided as from the first questioning of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right. Even where compelling reasons may exceptionally justify denial of access to a lawyer, such a restriction – whatever its justification – must not unduly prejudice the rights of the accused under Article 6. The rights of the defence will , in principle , be irretrievably prejudiced when incriminating statements made during police questioning without access to a lawyer are used for a conviction (see Salduz , cited above, § 55) .

34. The Court further notes that neither the letter nor the spirit of Article 6 of the Convention prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to the guarantees of a fair trial . However, if it is to be effective for Convention purposes, a waiver of the right to take part in the trial must be established in an unequivocal manner and be attended by minimum safeguards commensurate to its importance ( see Salduz , cited above, § 59, and Yoldaş v. Turkey , cited above , § 51 , 23 February 2010 ).

35. Turning to the facts of the present case, the Court observes that the applicant was informed of her right to legal assistance before her questioning at the Anti-Terrorist Branch of the Istanbul Security Directorate. That fact and her refusal to benefit from legal assistance were indicated in her official statement, which she signed. The applicant further signed another document, issued by the police, which noted that she did not wish to appoint a lawyer before giving her p olice statements (see paragraph 7 above).

37. In that connection, the Court notes that although the applicant claimed to have been coerced into making self-incriminating statements during questioning by the police, as it has already noted above with regard to the complaint under Article 3 of the Convention, she could not provide evidence to substantiate such coercion.

38. Having regard to the foregoing, the Court concludes that the applicant ’ s waiver of her right to have a lawyer while she made her statements before the police was made in an unequivocal manner and was attended by minimum safeguards (see Yoldaş , cited above, § 52, and Diriöz v. Turkey , no. 38560/04, § 35, 31 May 2012).

3 9 . Consequently, the complaint under Article 6 § 3 (c) about an alleged violation of the applicant ’ s right to a fair trial on account of the lack of legal assistance during her police custody is manifestly ill-founded and must therefore be declared inadmissible under Article 35 §§ 3 (a) and 4 of the Convention .

C. Other complaints

40. Relying on Articles 6 § 1 of the Convention, the applicant argued that the criminal proceedings against her had lasted too long. She also maintained under Article 14 of the Convention that she had been discriminated against as a result of her Kurdish origins.

41. An examination by the Court of the material submitted to it does not disclose any appearance of a violation of these provisions. It follows that this part of the application is manifestly ill-founded and must be declared inadmissible under Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Stanley Naismith Guido Raimondi Registrar President