FIRST SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 29495/95 by Hasan ERDEMLÄ° against Turkey

The European Court of Human Rights (First Section) , sitting on 5 September 2000 as a Chamber composed of

Mrs W. Thomassen, President , Mr L. Ferrari Bravo,

Mr Gaukur Jörundsson, Mr C. Bîrsan, Mr J. Casadevall, Mr R. Maruste, judges , Mr F. Gölcüklü, ad hoc judge,

and Mr M. O’Boyle, Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 13 October 1995 and registered on 7 December 1995,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the Commission’s partial decision of 14 January 1998,

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

The applicant is a Turkish national, born in 1956 and currently imprisoned in Ayd ı n. He is represented before the Court by Mr Hüsnü Öndül , a lawyer practising in Ankara.

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

A. The circumstances of the case

On 21 April 1992 police officers from the Samsun Security Directorate arrested the applicant and placed him in custody in the course of an investigation conducted by the same directorate.

On 21 April 1992 the Samsun Police requested the Samsun public prosecutor to authorise the extension of the applicant’s and the nine detainees’ detention period. On the same date the Samsun public prosecutor authorised the Samsun Police Headquarters to extend the detention period for fifteen days.

According to a document dated 22 April 1992, the police officers conducted a search in a house in Samsun subsequent to the applicant’s confessions. During the search the police officers found maps and city plans of Fatsa and Samsun , banners, paints and brushes for painting banners, several magazines and Marxist and Leninist publications. The following slogans were written on the banners: “The independence night with folk songs and dances - Türkülerle Halaylarla Özgürlük Gecesi ” ; “The fraternity and struggle of people will defeat fascism - Halkların Kardeşliği ve Mücadelesi Faşizimi Yenecektir ”; “The revolutionary left powers - Devrimci Sol Güçler ”.

On 27 April 1992 the applicant was interrogated by the police officers. During his interrogation he confessed in detail his involvement in the activities of the illegal organisation, namely the THKP/C-DE V-SOL. He stated that he had been an active member of several leftist organisations before the coup d’ état in 1980. After the coup d’ état he was arrested and tried at the Erzincan Martial Law Court which sentenced him to death penalty. In August 1991 he was acquitted. Following his acquittal he was involved in the activities of the DEV-SOL and was a member of the organization until 25 days prior to hi s arrest. The Black Sea region leader of the organization appointed him as the leader of the Samsun province. He worked in the distribution of the official publication of the organization, the M ü cadele (Struggle) Magazine, with P.T and H.T. He rented a house in Samsun for H.T where other members of the organization had stayed. The applicant finally stated that he had not made his statement under duress.

On 30 April 1992 the applicant was seen by a doctor at the Samsun Forensic Medical Institute.

On 30 April 1992 the applica nt was questioned by the Samsun public prosecutor. During his questioning the applicant reiterated his statements he had made before the police and said that he had not given his statement under duress. He had been a member of the THKP/C-DEV-SOL until 7 April 1992. He had no connections with the organisation after that date. He had been a member of the organisation for three months or three months and a half after his acquittal in 1991. During this period he was not involved in any illegal activities of the organisation.

On 30 April 1992 the applicant was brought before the Samsun Magistrates’ Court ( Sulh Ceza Mahkemesi ). Before the court he stated that he had not participated in illegal activities of the organisation and that the statements he had made to the police and the public prosecutor were true. The court ordered the applicant’s detention on remand.

On 27 May 1992 the public prosecutor at the Ankara State Security Court filed an indictment with the Ankara State Security Court charging the applicant with membership of the THKP/C-DEV-SOL. The charges were brought under Articles 168 § 1, 31, 33, 36, 40 of the Turkish Criminal Code ( Türk Ceza Kanunu ) and Article 5 of Law 3713.

On 3 July 1992 the applicant was brought before the Ankara State Security Court. He submitted a petition to the court alleging that he had been tortured into signing his statement in custody. The applicant alleged that b efore bringing him to the public prosecutor and the magistrate, the police officers intimidated him so that he would not disclose that he had been tortured. When he had been arrested the police officers had put a plastic bag on his head and had taken him into an interrogation room where, he was blindfolded, beaten, electrocuted and insulted. He further alleged that his testicles had been squeezed and his head had been hit to the walls. He could hear the screams of his fiancée who had been brought there by the police officers. He denied the allegations against him and rejected his statements he had made before the public prosecutor and the magistrate.

On the same day the Ankara State Security Court ordered the applicant’s release.

On 16 March 1993 the Ankara State Security Court acquitted the applicant on account of insufficient evidence on which to convict him of membership of the THKP/C-DEV-SOL.

Following an appeal by the public prosecutor, the Court of Cassation on 30 September 1993 quashed the judgment delivered by the Ankara State Security Court on the ground that the applicant should have been convicted pursuant to Article 168 § 1 of the Criminal Code as he had participated in the illegal activities of the THKP/C-DEV-SOL and had carried out particular duties in the organisation.

In the first hearing before the Ankara State Security Court on 2 February 1994 the applicant reiterated his previous submissions and requested that the court should maintain its first decision. The applicant and his lawyer did not attend the following hearings held before the Ankara State Security Court.

On 30 November 1994 the Ankara State Security Court, complying with the Court of Cassation’s decision, sentenced the applicant to 18 years and 9 months’ imprisonment under Article 168 § 1 of the Turkish Criminal Code. The court held that although the applicant had denied the allegations against him, the statements he had made to the police and the testimonies of other accused had corroborated his actions. The court relied in particular on the following evidence in its judgment: the applicant’s statements made at the police station, before the public prosecutor and the magistrate; the testimony of the witness, N.K and the statements of the other accused, Ş .Ü and A.T. The court also noted that banners, city maps, Marxist-Leninist publications had been found during the search conducted in the house used by the members of the organisation. The court held that the evidence collected sufficed to prove that the applicant was a member of the illegal organisation.

On 4 January 1995 the applicant lodged an appeal against the Ankara State Security Court’s judgment on the ground that there existed no evidence to substantiate that he had committed the alleged crimes. He alleged that in their statements the other accused Ş .Ü and A.T stated that they had not been involved in the activities of the organisation with the applicant. He further alleged that the witness N.T had not given a statement to substantiate the allegations against him. He concluded that the court should not admit these statements as evidence.

On 15 June 1995 the Court of Cassation upheld the judgment dated 30 November 1994.

B. Relevant domestic law and practice

i. Criminal law and procedures

Article 17 of the Turkish Constitution provides:

“...

No one shall be subjected to torture or ill-treatment; no one shall be subjected to penalty or treatment incompatible with human dignity.

...”

Article 135/a of the Turkish Code of Criminal Procedure ( Türk Ceza Muhakemeleri Usulü Kanunu ) provides:

“ The statement of the accused should be based on his free will. The accused shall not be subjected to physical or mental interference such as torturing, medication by force, fatigue, deceit, use of physical force and hardness and other use of devices which will result in the obstruction of his free will.

No unlawful benefit shall be promised.

The statements that are extracted from the accused by using the unlawful ways described above cannot be considered as evidence even if the accused does not challenge their lawfulness.”

Article 136 § 1 of the Turkish Code of Criminal Procedure (amended by Law 3842 of 18 November 1992) provides:

“The accused or a person arrested shall have access to legal assistance of one or more lawyers at any stage and level of the investigation.”

Article 31 of Law 3842 provides that the above provision shall not be applicable for charges that fall under the jurisdiction of the State Security Courts.

ii. Terrorist offences

Under section 3 of the Prevention of Terrorism Act (Law no. 3713 of 12 April 1991), the offence defined in Article 168 of the Criminal Code is classified as a “terrorist act”. Under section 4, the offence defined in Article 169 of the same Code is classified in the category of “acts committed to further the purposes of terrorism”.

Article 168 § 1 of the Turkish Criminal Code provides:

“It shall be an offence punishable by at least fifteen years’ imprisonment to form an armed gang or organisation or to assume control or special responsibility within such a gang or organisation with the intention of committing any of the offences referred to in Articles 125 ...

It shall be an offence punishable by five to fifteen years’ imprisonment to belong to such an organisation.”

COMPLAINTS

The applicant complains under Article 6 § 1 of the Convention that he was deprived of his right to a fair trial.

The applicant submits that the Ankara State Security Court, following the decision of the Court of Cassation , sentenced him on the basis of the statements he gave to police under duress and on the evidence given by the other accused and a witness. He further submits that he was not permitted the assistance of a lawyer during questioning by the police, the public prosecutor and the magistrate.

THE LAW

The applicant alleges under Article 6 § 1 of the Convention that his right to a fair trial was breached since he was convicted on the basis of statements he had made to the police under duress and on the evidence given by the other accused and a witness. The applicant further alleges that he was not permitted the assistance of a lawyer during questioning by the police, the public prosecutor and the judge.

The Government’s preliminary objection

The Government raised two objections pleading non-exhaustion of domestic remedies. The applicant had not applied to the Court of Cassation in order to lodge an application for rectification of the judgment of 16 March 1993, as Article 322 of the Turkish Code of Criminal Procedure entitled him to do. Furthermore, the applicant has failed to raise, even in substance, his complaint that the witness statements should not have been considered as evidence before the Turkish courts.

As to the fist limb of the Government’s objection the Court points out that in Turkish law, the remedy suggested by the Government is not “a domestic remedy directly accessible to the applicant”. Parties cannot themselves lodge such an application with the Court of Cassation . They must submit an application for that purpose to the Chief Public Prosecutor at the Court of Cassation , who decides in his discretion whether or not to apply to a chamber or to the Grand Chamber at the Court of Cassation which had delivered the judgment at issue (see the Çı raklar v. Turkey judgment of 28 October 1998, Reports 1998-VII, §§ 29-32).

The Court is of the opinion that the applicant was not required to avail himself of this domestic remedy.

As to the second limb the Court notes that the application of the rule of exhaustion of domestic remedies must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights that the Contracting Parties have agreed to set up. Accordingly, Article 35 of the Convention must be applied with some degree of flexibility and without excessive formalism and that it does not require merely that applications should be made to the appropriate domestic courts and that use should be made of remedies designed to challenge decisions already given. It normally requires also that the complaints intended to be made subsequently at Strasbourg should have been made to those same courts, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law (see the Cardot v. France judgment of 19 March 1991, Series A no. 200, p. 18, § 34; the Akdivar v. Turkey judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, pp. 1204 and 1205, § 65).

In the instant case the Court observes that in his appeal against the decision of the Ankara State Security Court of 16 March 1993 the applicant has raised before the Court of Cassation that the witness statements should not have been admitted as evidence.

The Court concludes that the Government’s preliminary objections should be dismissed.

Merits

1. The applicant complains under Article 6 § 1 of the Convention that his right to fair trial was breached since he was convicted on the basis of the statements he had made to police under duress and on the evidence given by the other accused and a witness.

The Government submit that the statements made by the applicant during his pre-trial detention were not the sole ground for his conviction. They maintain that the Ankara State Security Court relied on the evidence given by several witnesses as well as the applicant’s own confessions before the public prosecutor and the magistrate. They further submit that the court had regard to other relevant evidence, namely the publications, banners and documents found during the search conducted subsequent to the applicant’s confessions.

The applicant contends in reply that he was innocent of the crimes and that there was no evidence to ground his conviction other than the statements he had made to police under duress.

The Court points out that the Convention does not lay down rules on evidence as such. It cannot therefore exclude as a matter of principle and in the abstract that evidence obtained in breach of provisions of domestic law may be admitted. It is for the national courts to assess the evidence they have obtained and the relevance of any evidence that a party wishes to have produced. The Court has nevertheless to ascertain whether the proceedings considered as a whole, including the way in which the evidence was taken, were fair as required by Article 6 § 1 of the Convention (see the Mantovanelli v. France judgment of 18 March 1997, Reports of Judgments and Decisions 1997-II, pp. 436-37, § 34; and, mutatis mutandis , the Schenk v. Switzerland judgment of 12 July 1988, Series A no. 140, p. 29, § 46).

The Court further points out that its task under the Convention is not to give a ruling as to whether statements of witnesses were properly admitted as evidence, but rather to ascertain whether the proceedings as a whole, including the way in which evidence was taken, were fair (see the Kostovski v. the Netherlands judgment of 20 November 1989, Series A no. 166, p. 19, § 39; the Doorson v. the Netherlands judgment of 26 March 1996, Reports 1996-II, § 67).

The fairness of proceedings is assessed with regard to the proceedings as a whole (see, inter alia , the following judgments : Delta v. France, 19 December 1990, Series A no. 191-A, p. 15,  § 35; Imbrioscia v. Switzerland, 24 November 1993, Series A no. 275, pp. 13-14, § 38; Miailhe (no. 2) v. France, 26 September 1996, Reports 1996-IV, p. 1338, § 43).

In the instant case the Court finds on the basis of all the evidence in its possession that the statements made by the applicant during his pre-trial detention were not decisive in his conviction or sentence. It appears from the reasoned judgment of the Ankara State Security Court that the evidence of the witness N.K. and the statements of the other accused, Ş .Ü. and A.T.; the applicant’s statements during the trials, before the public prosecutor and the magistrate; the evidence collected during the search of the house in Samsun , such as the banners and the publications constituted the basis of his conviction and sentence.

In any event, the Court notes that in the proceedings before the Ankara State Security Court the applicant confined himself to challenging the admissibility of his statements to the police officers. However, apart from the allegation that his statements were taken under duress he failed to adduce any concrete evidence, such as the findings of the medical examination conducted on 30 April 1992 or any application having been lodged with the national authorities, as to his allegation of torture. In this regard, the Court is of the opinion that the applicant has not laid the basis of an arguable claim that his statements during his pre-trial detention were taken under duress.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

2. The applicant complains that he had not been assisted by a lawyer during questioning by the police, the public prosecutor and the magistrate.

The Government submit that the applicant did not request the assistance of a lawyer when he was questioned by the police, public prosecutor and the magistrate. According to the Government everyone who is charged with a criminal offence has the right to assistance of a lawyer during pre-trial proceedings under Article 136 of the Turkish Criminal Code of Procedure. The applicant could have expressed his wish for the assistance of a lawyer.

The Government further submit that neither the applicant nor his lawyer had attended the proceedings before the Ankara State Security Court following the judgment delivered by the Court of Cassation . According to them the applicant could have exercised his right to defend himself through legal assistance in these proceedings.

The applicant maintains his account of events.

The Court considers, in the light of the parties’ submissions that this part of the application raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits of the application. The Court concludes, therefore, that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

For these reasons, the Court, unanimously,

DECLARES ADMISSIBLE , without prejudging the merits, the applicant ’s complaint that he was not permitted the assistance of a lawyer during questioning by the police, the public prosecutor and the magistrate.

DECLARES INADMISSIBLE the reminder of the application.

Michael O’Boyle Wilhelmina Thomassen Registrar President