SECOND SECTION

DECISION

Application no . 54890/09 Atalay ÖZTÜRK against Turkey

The European Court of Human Rights (Second Section), sitting on 7 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 5 October 2009,

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 Atalay Öztürk, is a Turkish national who was born in 1976 and is currently serving a prison sentence in Muğla prison. He was represented before the Court by Ms Y. Kavak Kılınç, a lawyer practising in İzmir. 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 November 2005 at 1.05 a.m. the applicant got involved in a bar brawl which resulted in the death of U.K. The applicant was also injured during the incident. Subsequently, he absconded for a short period of time.

4. On the same date, at 9.17 a.m., the applicant called the police and introduced himself as U.K. ’ s murderer. The transcript of the telephone conversation was reproduced in the incident report ( ihbar kayıt tutanağı ) made by the police superintendent. It revealed that the applicant had expressed his wish to surrender but had been concerned about the reaction of the deceased ’ s relatives.

5. Thereafter, at an unspecified time, the applicant surrendered to the police. He was subsequently hospitalised under police guard for the injuries he had sustained during the fight.

6. A medical report drawn up the same day indicated that the applicant had abrasions on his left eyebrow, which had probably been caused by a bullet. It was further noted that there was a bullet hole in his left wrist.

7. At 11.30 a.m. police officers arrived at the hospital and drafted a record of statement ( ifade zaptı ) quoting the written record of the applicant ’ s telephone conversation with the police. According to this document, when the applicant had called the police he had stated to the chief police officer that he had gone to the bar looking for a mobile phone that he had lost and he had seen the fight. Some people had attacked him and he had drawn his gun in self-defence. When they had tried to grab the gun from his hand, the gun had gone off accidentally during the struggle. The record of statement further revealed that subsequent to his phone call, police officers had met with the applicant in Izmir. He had then been brought to the hospital, where his left eyebrow had been sutured and his broken left arm had been encased in plaster. After being reminded of his rights, the applicant had had a telephone conversation with his lawyer and refused to make a statement to the police in the absence of his lawyer. He and his father had signed the record of statement.

8. Again on the same date, the Selçuk Investigating Judge issued a warrant for the applicant to be brought before the Selçuk Public Prosecutor following his recovery.

9. On 15 November 2005, the Ä°zmir Investigating Judge questioned the applicant at the hospital in the presence of his lawyer. The applicant refused to make a statement, as he was still suffering from the injuries sustained in the incident. He stated that he would make defence submissions before the trial court. The judge ordered the provisional detention of the applicant in order to secure a statement from him following his discharge from the hospital.

10. On 28 November 2005, the applicant was brought before the Selçuk Public Prosecutor, when he denied the content of the record of statement. He alleged that his conversation with the police on the phone had been misunderstood and incorrectly transcribed. He added that he had not been carrying a gun at the material time. During this statement, the applicant benefited from the assistance of a lawyer.

11. On the same date, the Selçuk Investigating Judge questioned the applicant in the presence of his lawyer. The applicant submitted that there had been a struggle between him and the deceased, and that the deceased had been shot during the struggle while the applicant had been trying to take the gun from his hand. He maintained that the gun had been fired while he had been acting in self-defence. He further stated that he had not been carrying a gun at the time of the incident. After the questioning was over, the judge ordered the applicant ’ s pre-trial detention.

12. On 2 December 2005 the Ä°zmir Forensic Institute issued an autopsy report, specifying that the deceased, U.K., had been shot in the head at long range. It concluded that the cause of his death had been a skull fracture, damage to the brain stem and haemorrhaging in the brain membrane resulting from the gunshot. The report also revealed that 103 mg/dl of ethyl alcohol had been found in his blood.

13. On 21 December 2005 the Ä°zmir Public Prosecutor lodged an indictment with the assize court, charging the applicant with the intentional killing of U.K.

14. During the proceedings the assize court heard several witnesses who had been in the bar at the material time. S.O., the owner of the bar, testified that he had argued with the deceased for a while and that U.K. had drawn his gun several times during their quarrel. Thereafter the applicant had come to the bar and U.K. had begun quarrelling with the applicant and had lunged towards the applicant. S.O. had heard gunshots but had not seen the incident.

15. Another witness, V.S., stated in his initial statements to the public prosecutor and the magistrates ’ court that the applicant had walked into the bar, sworn at him and the deceased and then started shooting at them. Subsequently, before the trial court V.S. testified there had been a quarrel between the applicant and the deceased. U.K. had shot towards the applicant and then the applicant had tried to take the gun from U.K. During the struggle, someone had hit V.S. ’ s head with a hard object and he had lost consciousness.

16. I.K. stated that the applicant had come to the bar looking for his mobile phone and a fight had broken out. U.K. had walked up to the applicant while his hand had been in his pocket. At that time, I.K. had left the bar but he had heard a gunshot from outside. He had returned, and seen the deceased lying on the ground and V.S. taking the gun from his hand.

17. A.D. testified that during the fight in the bar, U.K. had drawn his gun and fired into the air. The applicant had tried to grab it from U.K. ’ s hand.

18. On 6 July 2006 the Ä°zmir Assize Court convicted the applicant of intentional homicide.

19. On 22 November 2007 the Court of Cassation quashed the first ‑ instance court ’ s judgment on procedural grounds.

20. On 8 April 2008 the assize court convicted the applicant of intentional homicide and sentenced him to twenty-five years and ten months ’ imprisonment. In convicting the applicant, the court took into consideration the fact that throughout the proceedings the applicant had stated that he had not been carrying any weapon at the time of the events, and that he had been attacked with a gun and had acted in self-defence. It held that the applicant ’ s defence submissions were implausible, taking into account the content of the case file, the record of statement, the entirety of the case file and the preliminary submissions of V.S. The court found it established that the applicant had deliberately shot and killed U.K., having regard, among other things, to the distance between the applicant and the deceased, the number of shots fired and the circumstances of the incident.

21. On 23 July 2009 the Court of Cassation upheld the conviction.

B. Relevant domestic law and practice

22. 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

23. The applicant complained under Article 5 § 3 of the Convention that the length of his pre-trial detention had been excessive. Relying on Article 5 § 4 of the Convention the applicant further complained of the lack of an oral hearing in objection proceedings concerning his continued detention.

24. The applicant alleged under Article 6 §§ 1 and 3 (c) of the Convention that his right to mount a defence had been violated because he had been denied access to a lawyer when he had made the statement to the police at the hospital. He also maintained that that statement had been used for his conviction.

25. Lastly, the applicant contended under Articles 6 § 1 and 13 of the Convention that the length of the criminal proceedings had exceeded the reasonable time requirement, and that there had been no effective remedy whereby he could have contested the length of the proceedings.

THE LAW

A. Regarding the lack of legal assistance during police custody and the fairness of the proceedings

26. Relying on Article 6 §§ 1 and 3 (c) of the Convention the applicant complained of a lack of legal assistance at the time his statement had been taken by the police at the hospital. He further alleged that this statement had subsequently been used for his conviction.

Article 6 §§ 1 and 3 (c) of the Convention 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.”

27. The Government firstly asked the Court to dismiss this part of the application for failure to comply with the requirement of exhaustion of domestic remedies under Article 35 § 1 of the Convention. They argued that the applicant had failed to raise the substance of his complaints before the domestic courts.

28. The Court considers it unnecessary to determine whether the applicant has exhausted domestic remedies within the meaning of Article 35 § 1 of the Convention, since his complaints are, in any event, inadmissible for the reasons set out below.

29. The Court reiterates that the right of everyone charged with a criminal offence to be effectively defended by a lawyer, assigned officially if need be, is one of the fundamental features of a fair trial (see Salduz , v. Turkey ([GC], no. 36391/02, §§ 51, 27 November 2008 ). Fairness of criminal proceedings under Article 6 of the Convention requires that, as a rule, a suspect should be granted access to legal assistance from the moment he is taken into police custody or pre-trial detention (see Dayanan v. Turkey , no. 73 77/03, §§ 30 and 31, 13 October 2009).

30. In the present case, it is not disputed that following the fight, the applicant called the police informing them of the events and expressed his wish to surrender. Thereafter, the police drafted a record of statement quoting the applicant ’ s telephone conversation and visited him at the hospital to take a statement from him. Upon the applicant ’ s refusal to make a statement in the absence of his lawyer, the interview was terminated and the document was signed by the applicant, his father and police officers.

31. The Court observes that when the police interview was being conducted at the hospital the applicant was not, in fact, in police custody and he did not make any self-incriminating statements. He merely signed the record of statement, stating that he refused to make a statement without the assistance of his lawyer. The Court further notes that the applicant was assisted by his lawyer when he gave statements before the public prosecutor and the investigating judge.

32. Having regard to the above, the Court notes that, in the circumstances of the present case, the applicant was not denied the assistance of a lawyer during police custody.

33. In relation to the use of the applicant ’ s telephone conversation with the police as evidence for his conviction, the Court firstly recalls that it is not competent to deal with an application alleging that errors of law or fact have been committed by domestic courts, except where it considers that such errors might have involved a possible violation of any of the rights and freedoms set out in the Convention. The admissibility of evidence and related questions are primarily matters for regulation by national law and it is in principle for national courts to assess the evidence before them. The Court ’ s task is not to examine whether the applicant was guilty or innocent of the offences of which he was convicted, but to ascertain whether the proceedings as a whole, including the way which the evidence was taken, were fair (see Schenk v. Switzerland , 12 July 1988, § 46, Series A no. 140, and García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I).

34. The Court must therefore ascertain whether the proceedings as a whole were fair, regard being had to whether the rights of the defence were respected. In this connection, it notes that the case was examined at two levels of jurisdiction, the applicant was assisted by a lawyer throughout the criminal proceedings and he was given the opportunity to challenge the admissibility of evidence in the course of the trial. The trial court convicted him on the basis of other available evidence, such as the statement of the other victim, V.S., the number of shots fired and the fact that the deceased was shot at from long range.

35. Having regard to the foregoing, the Court considers that the use of the written record of the applicant ’ s telephone conversation with the police did not breach the requirements of fairness guaranteed by Article 6 § 1 of the Convention.

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

B. Complaints regarding the applicant ’ s pre-trial detention

37. The applicant complained under Article 5 § 3 of the Convention that the length of his pre-trial detention had been excessive. Under Article 5 § 4 of the Convention he also argued that he had not had an effective remedy by which he could have challenged the lawfulness of his pre-trial detention.

Article 5 of the Convention, in so far as relevant, reads as follows:

“3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

38. The Court reiterates that pursuant to Article 35 § 1 of the Convention, the Court may only deal with a matter within a period of six months from the date on which the final decision was taken. When the acts of an authority are not open to any effective remedy, the six-month period runs from the date on which the act took place.

39. The Court considers that there were two periods of detention in the present case. The first period began on 15 November 2005 and ended on 6 July 2006, when the assize court convicted the applicant. Thereafter until the Court of Cassation ’ s decision of 22 November 2007, the applicant was detained “after conviction by a competent court”. The second period began on 22 November 2007, when the Court of Cassation quashed the first ‑ instance court ’ s judgment, and ended on 8 April 2008 with the assize court ’ s judgment.

40. The Court observes that from 8 April 2008 onwards the applicant was once again detained “after conviction by a competent court” (see, among other authorities, Turan v. Turkey (dec.), no. 879/02, 27 January 2005). Accordingly, the applicant ’ s pre-trial detention ended on 8 April 2008, whereas the complaint was introduced on 5 October 2009, more than six months later.

41. It follows that this part of the application was introduced out of time and must be rejected for non-compliance with the six-month rule pursuant to Article 35 §§ 1 and 4 of the Convention.

C. Complaint regarding the length of the proceedings

42. The applicant complained under Articles 6 § 1 and 13 of the Convention that the length of the criminal proceedings against him had exceeded the reasonable time requirement and he further complained that there had been no effective remedy whereby he could have contested the length of the proceedings.

Article 6 § 1 reads as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

Article 13 provides:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

43. Even assuming that domestic remedies have been exhausted as required by Article 35 § 1 of the Convention (see Turgut and Others v. Turkey (dec.), no. 4860/09, 26 March 2013), the Court considers that this complaint is manifestly ill-founded for the following reasons.

44. According to the information in the case file, the Court observes that the proceedings lasted three years and eight months before two levels of jurisdiction. It holds that the length in question is not excessive, having regard to the subject matter of the case and the serious nature of the offences with which the applicant was charged. Moreover, there was no substantial period of inactivity attributable to the domestic authorities. In these circumstances, the applicant also did not have an arguable claim of a breach of the Convention requiring a remedy under Article 13.

45. It follows that this part of the application is also manifestly ill ‑ founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court by a majority

Declares inadmissible the application.

Stanley Naismith Guido Raimondi Registrar President