FIRST SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 44234/98 by Sahin UCAK against the United Kingdom

The European Court of Human Rights (First Section) , sitting on 29 August 2000 as a Chamber composed of

Mrs W. Thomassen, President ,

Mr L. Ferrari Bravo,

Mr Gaukur Jörundsson,

Mr R. Türmen,

Mr B. Zupančič,

Mr R. Maruste,

Mr T. Panţîru, judges ,

and Mr M. O’Boyle, Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 29 June 1998 and registered on 9 November 1998,

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 deliberated, decides as follows:

THE FACTS

The applicant is a Kurd, and a Turkish national, born in 1960 and serving a sentence of imprisonment in HM Prison, Dungavel , near Strathhaven , Scotland. He is represented before the Court by Mr John J. McCabe, a former solicitor. The facts of the case, as submitted by the applicant , may be summarised as follows.

In about 1987, the applicant arrived in Switzerland from Turkey with his wife and child. They made an application for asylum on the grounds that, while in Turkey, the applicant had been detained and tortured by the police. The application was successful, and the applicant lived in Switzerland with his family until 1994. The applicant speaks Kurdish, Turkish and French. He speaks no English.

In July 1994, the applicant arrived in the United Kingdom. On 21 November 1994, the applicant was staying with friends in bed and breakfast accommodation in Glasgow, when police officers arrived with a search warrant. He was detained and his room was searched. A plastic bag containing white powder was found in the room. The police officers spoke only English, which the applicant did not understand. He was taken to the police station and a detention form was completed in English at 12.24 a.m. the following morning (22 November 1994).  The applicant did not see the form.  The applicant asked for help (in French). He did not understand that he was being detained, or his rights on detention, including his right to have his detention intimated to a solicitor. At 4.46 a.m. the applicant was charged in English with possession of heroin.

The police contacted a Turkish interpreter, Ms Orgun Gun. She indicated that she worked at a school in Glasgow and would not be able to attend at the police station until late in the afternoon. The police also contacted the duty solicitor, Mr David Hall of Hall and Haughey . At about 9 a.m. (on 22 November 1994), Mr Hall came to see the applicant. As there was no interpreter present, the applicant and Mr Hall did not understand each other. The applicant tried unsuccessfully to communicate with Mr Hall in French. Mr Hall was accordingly unable to give the applicant any legal advice. Mr Hall did not know that the applicant was to be interviewed by the police later on in the day, and the police gave no indication that this was the case.  At 5.15 p.m. (on 22 November 1994), the applicant was interviewed by the police through Ms Gun, without a solicitor. At the conclusion of the interview, the applicant was charged again with possession of heroin (the same charge). The applicant is fearful and distrustful of the police and of Turkish nationals. He did not trust the interpreter, as he assumed that she worked for the police.

On 23 November 1994, the applicant appeared before the Glasgow Sheriff Court. He was represented by Mr Hall. The interpreter was Ms Orgun . Mr Hall advised the applicant briefly, through the interpreter, before the hearing. At the hearing, the applicant was remanded in custody. On 30 November 1994, the applicant, represented by Mr Hall and with Ms Orgun acting as interpreter, was fully committed for trial.

Ms Orgun subsequently interpreted for the applicant and Mr Hall on three occasions at Barlinnie Prison, where the applicant was remanded in custody awaiting trial. At the second of these conferences, Mr Hall asked the applicant if he knew the addresses of the two friends with whom he had travelled to Glasgow in November 1994. He said that he did not, and Ms Orgun told the applicant that if he provided the addresses, they would not be passed on to the police. The applicant said again that he did not know the addresses. Ms Orgun went red in the face and became angry. She pointed her finger at the applicant and said he was a liar. The applicant told Mr Hall, through Ms Orgun , that he wanted to change interpreters, but was told that it would not be possible as no other interpreter was available.

The applicant then changed solicitors, in the expectation that the new solicitor would be able to speak French. This was not the case, and interpretation was still required. At the first meeting between the applicant and Mr Macara of Beltrami and Co, the new firm of solicitors, Ms Orgun was again present. The applicant asked Mr Macara , through Ms Orgun , if another interpreter could be found, but he was told again that this would not be possible. Ms Orgun interpreted at all subsequent consultations between the new solicitor and the applicant. As a result, the applicant was unable to participate fully and instruct his solicitors in respect of his defence as he felt unable to discuss his case in confidence with his legal representatives.

None of the documents to be used at trial, including the indictment and the witness precognitions , was translated into Turkish. The first occasion on which the indictment was translated for the applicant was when it was read out in court at the beginning of the trial.

The trial took place at the High Court of Justiciary in Glasgow on 17 and 20 March 1995. Ms Orgun acted as interpreter for both the prosecution and the defence. She was paid by the prosecution. She also gave evidence for the prosecution at the trial regarding the accuracy of her interpretation at the interview on 23 November 1994, her evidence being agreed between legal representatives, but without the applicant’s knowledge, in the form of a joint minute. At trial, the prosecution relied upon statements made by the applicant in the interview on 22 November 1994 which were inconsistent with the prosecution evidence and with the applicant’s defence at trial. Other statements made by the applicant in the interview were relied on by him as being consistent with his defence at trial.

On 20 March 1995, the applicant was convicted of being concerned in the supply of a Class A controlled drug, diamorphine (heroin), with a street value of £50,000 to £100,000, contrary to section 4(3)(b) of the Misuse of Drugs Act 1971. He was sentenced to 10 years’ imprisonment.

In January 1996, the applicant applied for legal aid for advice in connection with an appeal. A new interpreter, Ms Chercary , was found. Ms Chercary was not Turkish but Armenian, and the applicant found it impossible to understand the translations which she prepared of documents related to his appeal.

In March 1996, counsel advised that more investigation and information was required before grounds of appeal could be settled. In June 1996, the Scottish Legal Aid Board indicated that they wished to see counsel’s opinion as to prospects of success on appeal before deciding whether to grant legal aid for the appeal. They granted emergency legal aid to cover the marking and lodging of the appeal, instruction of Edinburgh agents, and the obtaining of counsel’s opinion as to prospects of success. The applicant’s solicitors had difficulties in obtaining legal aid for interpretation and translation costs. They applied for a series of increases in authorised expenditure under the applicant’s legal aid advice and assistance certificate. The increases were eventually granted after several requests by the solicitors. Prior sanction was required for translation of lengthy documents, such as counsel’s opinions, on an individual basis.

On 26 July 1996, the Canton of Geneva wrote to the Governor of HM Prison Glenochil , where the applicant was detained, and asked him to serve on him a decision of administrative expulsion from Switzerland, copies of which were enclosed.

Legal aid for the appeal was granted in December 1996. The Legal Aid Board informed the applicant’s solicitors that they should apply for sanction each time they wished to use an interpreter or have a document translated. After lengthy discussions with the Legal Aid Board, the applicant’s solicitors obtained cover which allowed them to have urgent or necessary documents, including correspondence, translated up to a cost of £200 without prior sanction from the Legal Aid Board. Prior sanction continued to be required for translation of lengthy documents.

On 21 March 1997, grounds of appeal were lodged with the High Court of Justiciary . The appeal was heard on 23 June 1998 and dismissed on 26 June 1998. Written reasons for the dismissal of the appeal were given on 26 July 1998. The High Court of Justiciary held that the applicant’s arrest and detention were not unlawful, and that although holding an interview after charge was contrary to practice, there was no unfairness, as the applicant had relied at trial on the answers he had given in the interview.

COMPLAINTS

The applicant complains that his detention, arrest and charge breached Article 5 §§ 1 (c), 2 and 4 and Article 6 § 3 (a) of the Convention.

The applicant complains under Articles 5 § 4 and 6 § 1 of the Convention that the legal aid board took an unreasonable time to decide whether or not to grant legal aid. He complains under Article 6, in conjunction with Article 14, that there is no appeal to the House of Lords in Scottish criminal cases, whereas there is a right of appeal in English criminal cases.

The applicant complains under Article 6 of the Convention that he was unable to participate effectively in the criminal proceedings because inadequate provision was made for interpretation and translation. In particular, he complains that he was unable to change interpreter even though he had no confidence in the interpreter who was acting for him, since there were no other Turkish interpreters available; that no translations were provided of key documents, including the indictment and witness precognitions ; that funding through legal aid for interpretation and translation was extremely limited; and that the translations provided in connection with the appeal were so poor as to be unintelligible.

The applicant complains under Article 8, alone and in conjunction with Article 14, of interference in his family and private life.

THE LAW

1. The applicant complains under Article 6 of the Convention that he was unable to participate effectively in the criminal proceedings because inadequate provision was made for interpretation and translation. In particular, he complains that he was unable to change interpreter even though he had no confidence in the interpreter who was acting for him, since there were no other Turkish interpreters available; that no translations were provided of key documents, including the indictment and witness precognitions ; that funding through legal aid for interpretation and translation was extremely limited; and that the translations provided in connection with the appeal were so poor as to be unintelligible.

Article 6 of the Convention provides, so far as material:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.

3. Everyone charged with a criminal offence has the following minimum rights:

(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

...

(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.”

T he Court considers that it cannot, on the basis of the file, determine the admissibility of this part of the application and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of the Court, to give notice of this complaint to the respondent Government.

2. The applicant complains under Article 8 of interference in his family and private life. The Court notes that the applicant previously complained about the same matters to the Commission in application no. 37958/97. The complaints were declared inadmissible by the Commission. The Court finds that the complaints made in the present application are substantially the same as those submitted to the Commission and contain no relevant new information.

It follows that the Court declares the applicant’s complaint under Article 8 inadmissible, in accordance with Article 35 § 2 (b) of the Convention.

3. The Court has examined the rest of the applicant’s complaints and has noted that the applicant has been informed of the possible obstacles to their admissibility. In the light of all of the material in its possession and, in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

It follows that the remainder of the applicant’s complaints must be rejected in accordance with Article 35 § 4 of the Convention.

For these reasons, the Court, unanimously,

DECIDES TO ADJOURN the examination of the applicant’s complaints under Article 6 of the Convention;

DECLARES INADMISSIBLE the remainder of the application.

Michael O’Boyle Wilhelmina Thomassen

Registrar President