SECOND SECTION

DECISION

Application no . 39182/08 Mustafa GÃœR against Turkey

The European Court of Human Rights (Second Section), sitting on 14 January 2014 as a Chamber composed of:

Guido Raimondi, President, Işıl Karakaş, Dragoljub Popović, András Sajó, Nebojša Vučinić, Helen Keller, Egidijus Kūris , judges and Stanley Naismith , Section Registrar ,

Having regard to the above application lodged on 4 August 2008,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Mustafa Gür, is a Turkish national who was born in 1979 and is currently serving a prison sentence in Silifke. The Turkish Government (“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 14 October 2004 the applicant, who was being searched for on suspicion of murder, surrendered himself to the gendarmerie.

4. On 15 October 2004 he was taken to the Sütlüce Central Gendarmerie Station for questioning. According to a form explaining arrested persons ’ rights and which the applicant signed in acknowledgement, he was advised of the charges against him, as well as of his right to remain silent and to have access to a lawyer, and was asked to make a statement regarding the murder of M.S., a shepherd, by poisoning on 13 October 2004. The applicant stated that he did not wish to benefit from the assistance of a lawyer and then proceeded to give a detailed account of how he had poisoned M.S. He alleged that he had been blackmailed by his creditors into killing M.S. in order to steal his sheep.

5. At 4.25 p.m. on 15 October 2004 the applicant was examined by a doctor, who stated that there were no traces of ill-treatment on his body. In addition, the medical report indicated that the applicant had not complained of any physical ailments or psychological conditions.

6. On the same date he was brought before the Gülnar Public Prosecutor, where he was again advised of his right to remain silent and to request a lawyer. The applicant refused the assistance of a lawyer and repeated the statement he had given at the gendarmerie station. He stated that he had surrendered to the gendarmerie and that he regretted what he had done.

7. Later on the same day the applicant was questioned at the Gülnar Magistrates ’ Court. Having refused legal assistance, he confirmed his statements given before the gendarmerie and the public prosecutor. He stated that he was in debt and that to secure payment of his debt his creditors had coerced him into killing the shepherd in order to steal his sheep. Subsequently he had agreed to kill the shepherd, and had bought an agricultural poison. He had also rented a lorry with a driver to transport the sheep. They had gone to the village and he had asked the driver to wait outside the village until he brought the sheep. Then, when he had approached the shepherd, a dog had attacked him. He had thrown a piece of bread laced with poison to the dog and it had calmed down. Subsequently, he had found the shepherd, had a chat with him and offered him a soft drink laced with poison. Right after the shepherd had drunk it, the applicant had gone away, regretting what he had done. At the end of the questioning, the judge ordered the applicant ’ s pre-trial detention.

8. An expert report dated 20 October 2004 established that the fingerprints found on the lorry ’ s rear-view mirror matched those of the applicant.

9. On 26 October 2004 the Gülnar Public Prosecutor filed an indictment with the Silifke Assize Court against the applicant and three other people, accusing the applicant of a number of offences including premeditated murder and the other three individuals of murder and/or incitement to murder.

10. During the trial, the assize court heard more than twenty witnesses.

11. A.K.K., the head of the village ( muhtar ), stated that a villager had noticed a lorry parked outside the village and had brought its driver to the village. The driver had explained that he had brought a person to the village who had told him that he was going to buy 68 sheep from someone. He had been asked to stay until 5.00 p.m. but the person had not come back. A.K.K. had asked gendarmerie officers to come to the village, and when they arrived they had started to search for the sheep with the villagers. The next day the body of the deceased had been found.

12. H.H.K. testified that he had spotted the deceased walking with a man outside the village. However, two hours later he had seen that person a long distance away, herding the sheep himself.

13. M.A., the driver of the lorry, stated that on the day of the incident the applicant had rented his lorry to transport some sheep. On the way to the village the applicant had bought bread and a soft drink. The applicant had asked him to stay outside the village until 5.00 pm. After a while, a dog had passed by which appeared to have been poisoned. The applicant had not come back and he had begun to suspect that there was something wrong. He had gone into the village and had explained the events to the head of the village and gendarmerie officers.

14. A.T. testified that the applicant had rented his car three or four times before the incident. He had been called in by the gendarmerie for questioning. While he had been at the gendarmerie station the applicant and B.D. had arrived at the station.

15. B.D. stated that the applicant had rented his colleague ’ s (A.T. ’ s) car three or four times. B.D. had been invited to the gendarmerie station for questioning. Thereafter the applicant had come to rent the car again. B.D. had mentioned the phone call he had received from the gendarmerie to the applicant. Upon B.D. ’ s suggestion they had gone to the station together.

16. According to the crime scene examination report dated 14 October 2013 drawn up by the gendarmerie, the deceased ’ s body was found lying face down on the ground. His arms were under his abdomen. There was foam and blood around his mouth, and there was vomit residue around his feet. There were no signs of a firearm wound, open wound or blood on his body. The report further revealed that 68 sheep had been found hidden some distance away.

17. Following a toxicological examination, on 23 February 2005 the Adana Branch of the Forensic Medicine Institute prepared a report finding that there were no traces of toxic substances, alcohol or drugs in the deceased ’ s blood, urine and internal organs.

18. Lastly, on 3 May 2006 a report was prepared by the Forensic Medicine Institute upon the request of the Pathology Department of the Forensic Medicine Institute. The report revealed that the crime scene and the residue of vomit would lead to the conclusion that the deceased had been poisoned. It further disclosed that traces of toxic substances could not be detected in the deceased ’ s tissue or fluids due to the time which had elapsed. However, taking into account the fact that there was no medical evidence to show that the deceased had been poisoned, the report was unable to establish the exact cause of death.

19. During the trial, the applicant was represented by a lawyer. In his defence submissions before the Silifke Assize Court, the applicant denied the statements he had made before the gendarmerie, the public prosecutor and the magistrates ’ court. He alleged that his statement at the gendarmerie station had been extracted under duress and that he had been forced to sign a statement dictated by the gendarmerie. Moreover, he alleged that the gendarmerie had forced him to repeat the same statement before the public prosecutor and the magistrates ’ court and he had done so because he was scared that if he did not comply he would be ill-treated again. In the written defence submissions presented to the trial court, the applicant ’ s lawyer stated that the applicant had been forced by the authorities to sign self-incriminating statements which included his alleged refusal to be assisted by a lawyer. He maintained that the statements in the case file had no legal validity.

20. On an unspecified date, the public prosecutor submitted his written opinion on the merits of the case to the Silifke Assize Court, in which he recommended the applicant ’ s acquittal, along with the three other defendants, due to a lack of evidence establishing beyond a reasonable doubt that the applicant had committed the offence with which he was charged.

21. On 30 October 2007 the Silifke Assize Court convicted the applicant of murder and robbery and sentenced him to life imprisonment under Articles 82 § 1 and 149 § 1 of the Criminal Code (Law no. 5237), but acquitted his co-defendants due to a lack of evidence. In convicting the applicant, the assize court principally relied on his statements before the gendarmerie, the public prosecutor and the magistrates ’ court, the witness statements of approximately twenty witnesses, identification reports, the scene of incident report and fingerprint evidence. It did not give credence to the defence submissions made by the applicant during the proceedings in which he denied all his previous statements, finding that he had only made them to avoid conviction. The trial court moreover stated that a number of the witness statements were perfectly consistent with the applicant ’ s initial self-incriminating statements, which suggested their accuracy. As regards his allegations of ill-treatment, the assize court stated that the medical reports issued prior to and following the applicant ’ s detention at the gendarmerie station indicated no traces of ill ‑ treatment on his body. These allegations were, therefore, held to be unfounded.

22. On 8 July 2009 the Court of Cassation upheld the judgment of the Silifke Assize Court with a correction. Noting that the deceased had been a minor at the material time, it changed the sentence to aggravated life imprisonment (a whole life tariff).

B. Relevant domestic law and practice

23. 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).

COMPLAINTS

24. The applicant complained under Article 3 of the Convention that he had been subjected to ill-treatment during his detention at the Sütlüce Central Gendarmerie Station.

25. He contended under Article 5 of the Convention that his pre-trial detention had been unlawful and excessively lengthy.

26. He maintained under Article 6 of the Convention that his defence rights had been violated because he had not been given access to a lawyer during his custody at the gendarmerie station.

27. Lastly, he cited Article 3 of Protocol No. 7.

THE LAW

A. Concerning Article 6 of the Convention

28. The applicant complained under Article 6 of the Convention that he had not been provided with legal assistance at the initial stages of the criminal proceedings.

29. The Court finds it appropriate to examine this complaint under Article 6 § 3 (c) of the Convention, which reads:

“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.”

30. The Government contested the allegations.

31. The Court recalls that the privilege against self-incrimination and the right to remain silent are generally recognised international standards which lie at the heart of a fair procedure. Moreover, early access to a lawyer is a fundamental procedural safeguard which aims to ensure, among other things, respect of the right of an accused not to incriminate himself (see Salduz , cited above, § 54).

32. The Court further reiterates that Article 6 of the Convention does not prevent a person from waiving of his own free will the entitlement to certain guarantees of a fair trial (see Pishchalnikov v. Russia , no. 7025/04, § 77, 24 September 2009). However, if it is to be effective for Convention purposes, the waiver of a right must be established in an unequivocal manner and be attended by minimum safeguards commensurate with its importance. It must also be shown that the accused could reasonably have foreseen what the consequences of his conduct would be (see Hakan Duman v. Turkey , no. 28439/03, § 48, 23 March 2010).

33. In the instant case, the Court observes that the applicant surrendered himself to the gendarmerie when he was being sought for, and the gendarmerie subsequently drew up a report setting out the applicant ’ s right to be assisted by a lawyer which was apparently read and signed by him. Accordingly, despite having the right to be assisted by a lawyer while in gendarmerie custody and having been reminded of that right, the applicant refused such assistance and gave a detailed statement. Furthermore, the applicant gave the same testimony before the public prosecutor and the judge, again refusing the assistance of a lawyer. It further notes that at no stage of the domestic proceedings did the applicant allege that he had been deprived his right to legal assistance or that he had even made an explicit request for such assistance before the domestic authorities. Additionally, the medical report dated 15 October 2004 revealed no traces of ill-treatment on his body and he did not complain of any physical ailments or psychological conditions. Accordingly, the Court considers that the waiver of his rights was unequivocal and attended by the minimum safeguards.

34. The Court further observes that the assize court not only based its final decision on the applicant ’ s statements at the initial stages of the criminal proceedings, but it also made use of the expert report, crime scene examination report and fingerprint evidence. The trial court moreover held that a number of witness statements were perfectly consistent with the applicant ’ s initial statements.

35. The applicant ’ s lack of access to legal assistance during police custody cannot, therefore, be considered to have deprived him of a fair hearing within the meaning of Article 6 §§ 1 and 3 (c) of the Convention.

36. It follows that this part of the application must be rejected as being manifestly ill-founded within the meaning of Article 35 § 3 and 4 of the Convention.

B. The remaining complaints

37. Lastly, the applicant alleged violations under Articles 3 and 5 of the Convention and Article 3 of Protocol No. 7 to the Convention.

38. 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.

For these reasons, the Court unanimously

Declares the application inadmissible.

Stanley Naismith Guido Raimondi Registrar President