SECOND SECTION

DECISION

Application no . 37011/07 Cemal Gürsel ENTER against Turkey

The European Court of Human Rights (Second Section), sitting on 26 November 2013 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 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 Cemal Gürsel Enter, is a Turkish national who was born in 1962. He was represented before the Court by Mr A. Duran, a lawyer practising in Mersin. 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 8 January 2002 M.Ä°. and K.Ä°., were arrested in the village of Dinlence , ErciÅŸ , Van, and taken into custody by the gendarmerie on suspicion of having murdered A.F.

4. On 11 January 2002 the applicant was arrested in connection with the same crime. Prior to effecting the arrest, the gendarmerie searched the applicant ’ s house and found a hidden kalashnikov , which they confiscated as a possible murder weapon. The officers commenced the search of the house in the applicant ’ s absence. A villager, M.T., was invited as a witness. It appears that the applicant refused to sign the house search report which was subsequently signed by the gendarmerie and M.T.

5. Following his arrest, the applicant was questioned at the Erciş Gendarmerie Provincial Command Office. As stated on a form explaining arrested persons ’ rights and which the applicant signed in acknowledgement, he had been advised of the charges against him, as well as of his right to remain silent and to have access to a lawyer. The applicant stated that he did not wish to benefit from the assistance of a lawyer. After initially refusing to make a statement, the applicant later said that the kalashnikov found in his house did not belong to him and that it had been brought to his house by the gendarmerie officers who had carried out the house search.

6. On 11 January 2002 M.İ., one of the applicant ’ s co-accused, was also questioned by the gendarmerie. In his statement, which he made without the assistance of a lawyer, M.İ. confessed to having planned and perpetrated the murder of A.F. together with K.İ. and the applicant. M.İ. also indicated that the applicant had fired at the victim with his kalashnikov .

7. On 8 January 2002, while undressing the corpse of A.F. in order to perform an autopsy, a kalashnikov bullet was found and was collected in order to be subsequently used as evidence.

8. On 12 January 2002 the applicant was brought before the ErciÅŸ Public Prosecutor, when he was again advised of his right to request a lawyer. It is not clear from the documents in the case file whether the applicant expressly waived this right. In any event, the applicant was not assisted by a lawyer for his appearance before the public prosecutor. In his statement, the applicant denied all the accusations made against him and reiterated that he had nothing to do with the kalashnikov found in his house.

9. Later on the same day the applicant was questioned at the Erciş Magistrates ’ Court. He refused the assistance of a lawyer and repeated his statement given before the public prosecutor. At the end of the questioning, the judge ordered the applicant ’ s pre-trial detention.

10. According to the medical reports dated 11 and 12 January 2002, there were no signs of ill-treatment on the applicant ’ s body.

11. On 12 January 2002 the applicant ’ s co-accused M.İ. was also questioned by the Erciş Public Prosecutor and the Erciş Magistrates ’ Court respectively. He made a series of confused and inconsistent statements on both occasions.

12. On 23 January 2002 the ErciÅŸ Public Prosecutor filed an indictment with the ErciÅŸ Assize Court against the applicant and the two other suspects, accusing them of premeditated murder and other offences.

13. Throughout the proceedings, the applicant denied the charges against him. He called a number of witnesses to attest to his innocence and repeatedly requested a fingerprint examination of the kalashnikov . The majority of his witnesses were heard by the trial court, save for those whose testimonies were considered to be irrelevant to the proceedings by the court. M.Ä°. similarly denied all of the charges before the ErciÅŸ Assize Court, arguing throughout the proceedings that the statement he had made to the gendarmerie on 8 January 2002 had been obtained under torture. Based on the fact that the medical examinations conducted before and at the end of his custody period, namely on 8 and 12 January 2002, had revealed no signs of ill-treatment on his body, the first ‑ instance court dismissed his pleas as unfounded allegations fabricated to avoid conviction.

14. On 3 June 2003 the Van Gendarmerie Regional Criminal Laboratory (“the laboratory”) prepared a report concluding that fingerprints could not be detected on the kalashnikov owing to the passage of time and the fact that the weapon had probably been handled by a number of people since its confiscation. In a previous letter dated 30 April 2003 the laboratory had confirmed that no fingerprint examination had been requested from it as part of the investigation carried out in the immediate aftermath of the incident.

15. On a separate point, in May 2003 the applicant sought the withdrawal of the judges sitting on the bench of the Erciş Assize Court. He claimed that the Assize Court could no longer be considered trustworthy in view of its failure to take any measures against the victim ’ s brother, who had allegedly claimed to have “bought the court.” On an unspecified date, the Van Assize Court rejected the applicant ’ s request.

16. On 30 November 2005 the Erciş Assize Court found the applicant guilty. In convicting the applicant, the Assize Court principally relied on: ( i ) the house search report dated 11 January 2002, which noted that a kalashnikov had been found in the applicant ’ s house; and (ii) an expert report prepared by the laboratory on 25 January 2002, which indicated that some of the shells and bullets found at the scene of the crime had been fired from the kalashnikov found in the applicant ’ s house. The Assize Court also took the statements made by M.İ. to the gendarmerie immediately after his arrest into account.

17. On 21 May 2007 the Court of Cassation upheld the judgment of the first ‑ instance court.

B. Relevant domestic law and practice

18. The relevant domestic law and practice in force at the material time, in addition to more recent developments, is set out in Salduz v. Turkey ([GC], no. 36391/02, §§ 27-44, 27 November 2008).

COMPLAINTS

19. The applicant complained that his rights under Articles 3, 5, 6 and 8 of the Convention had been violated. The applicant argued, in particular, that he had not been given access to a lawyer during his detention in police custody, that the process of administration of evidence had been flawed, as the fingerprints on the kalashnikov which had been allegedly found in his house had not been duly examined and his witnesses had not been called by the trial court, that the results of the autopsy report had not been properly considered, as the kalashnikov bullet found during the autopsy had not been fired from a firearm as suggested therein but had been placed there in the aftermath of the incident, that the incriminating statements about the applicant made to the gendarmerie by his co-accused M.İ. had been included in the case file, despite the fact that M.İ. had later retracted these statements, claiming that they had been extracted under duress, and that the impartiality of the Erciş Assize Court had become questionable in view of its failure to take action against the victim ’ s brother, who had publicly claimed to have bribed the court.

THE LAW

A. Concerning Article 6 § 1 of the Convention

20. The applicant complained, without relying upon any particular provision of the Convention, that the assize court had failed to properly assess the evidence before it and in convicting him had used evidence that had been unlawfully obtained against him. In particular, no fingerprint examination had been conducted of the kalashnikov , which had allegedly been confiscated from his house as a suspected murder weapon. Moreover, one of the main pieces of evidence used against him – the statement made by his co-accused M.İ. to the gendarmerie – had been obtained under duress, as M.İ. had stated many times before the trial court.

21. The Government contested the allegations.

22. The Court considers that these complaints should be examined under Article 6 § 1 alone, which, in so far as relevant, reads:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

23. The Court reiterates 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 in 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). The Court further notes that the use of evidence obtained under duress in criminal proceedings raises serious issues as to the fairness of such proceedings.

24. In the present case, concerning the lack of a fingerprint examination, the Court observes that although the applicant was not at home, gendarmerie officers conducted a search of his house in the presence of a witness. It was reported that a kalashnikov had been found in the applicant ’ s house during the search. Furthermore, an expert report, prepared by the Van Gendarmerie Regional Criminal Laboratory, indicated that some of the shells and bullets found at the scene of the crime had been fired from the kalashnikov that had been confiscated from the applicant ’ s house.

25. As for the incriminating statements made by M.Ä°. during his police custody, the Court notes that there is no evidence in the case file to suggest that M.Ä°. was ill-treated in any way during his detention in police custody. In this connection it notes that the medical examinations conducted before and at the end of his custody period revealed no signs of ill-treatment on his body.

26. The Court further notes that the case was examined at two levels of jurisdiction and the applicant was assisted by a lawyer during the trial proceedings. It is clear from the documents in the file that he was able to present his case adequately and that the courts examined the defence arguments and explained their reasons in rejecting the applicant ’ s requests. The Court observes that in convicting the applicant, the courts mainly relied, in addition to the initial statements of M.İ., on the house search report, which had also been signed by the witness, noting that a kalashnikov had been found in the applicant ’ s house and on the expert report revealing that certain bullets and shells found at the crime scene had been shot from the kalashnikov found in the applicant ’ s house. It also finds no evidence which would allow it to conclude that the national courts acted in an arbitrary or unreasonable manner in establishing the facts or interpreting the applicable provisions of the domestic law.

27. In view of the foregoing, the Court considers that this part of the application be declared inadmissible for being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

B. Concerning Article 6 §§ 1 and 3 (c) 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 §§ 1 and 3 (c) of the Convention, which reads:

“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.”

30. The Government contested the allegation.

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, that the right of an accused not to incriminate himself is respected (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 present case, the Court observes certain similarities with the case of Yoldaş v. Turkey (no. 27503/04, §§ 50-55, 23 February 2010), in the sense that the applicant was not deprived of his right to legal assistance as a result of restrictions imposed by a law, but rather due to his waiver of this right during questioning (see, a contrario , Salduz , cited above). In the Yoldaş case (cited above), the Court found no violation of Article 6 § 3 (c) of the Convention, concluding that the applicant ’ s waiver had been made in an unequivocal manner.

34. In the present case, the Court notes that following his arrest on suspicion of murder, the applicant was taken in for questioning by gendarmerie officers, the public prosecutor and the Magistrates ’ Court respectively. The Court further observes that as the alleged offence did not fall within the jurisdiction of the State Security Courts, the applicant had the right of access to a lawyer from the moment he was taken into police custody. Consequently, prior to each interview, the applicant was reminded of his rights, including the right to be assisted by a lawyer. The documents in the case file reveal that the applicant did not request legal assistance at any stage and consistently denied the allegations against him. Additionally, the medical examinations conducted before and at the end of his custody period revealed no signs of ill-treatment on his body. Accordingly, the Court considers that the waiver of his rights was unequivocal and attended by the minimum safeguards.

35. The Court further observes that the Erciş Assize Court based its final decision on the house search report, which noted that a kalashnikov had been found in the applicant ’ s house, and an expert report prepared by the Van Gendarmerie Regional Criminal Laboratory which indicated that some of the shells and bullets found at the scene of the crime had been fired from the kalashnikov confiscated from the applicant ’ s house. The Assize Court also took the statements of his co-accused and several witnesses into account.

36. 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.

37. The Court concludes that the complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must, therefore, be rejected pursuant to Article 35 § 4.

C. The remaining complaints

38. Lastly, the applicant alleged several violations under Articles 3, 5, 6 and 8 of the Convention.

39. 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 by a majority

Declares the application inadmissible.

Stanley Naismith Guido Raimondi Registrar President