SECOND SECTION

DECISION

Application no. 73727/11 Oğuzhan DİNÇ against Turkey

The European Court of Human Rights (Second Section), sitting on 21 September 2021 as a Committee composed of:

Carlo Ranzoni, President, Egidijus Kūris, Pauliine Koskelo, judges, and Hasan Bakırcı, Deputy Section Registrar,

Having regard to the above application lodged on 4 November 2011,

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 Oğuzhan Dinç, is a Turkish national, who was born in 1994 and lives in Istanbul. He was represented before the Court by Ms G. Kahraman, a lawyer practising in Istanbul.

2. The Turkish Government (“the Government”) were represented by their Agent, Mr Hacı Ali Açıkgül, Head of the Department of Human Rights of the Ministry of Justice of the Republic of Turkey.

3. The facts of the case, as submitted by the parties and as they appear from the documents submitted by them, may be summarised as follows.

4. On 30 September 2009 at about 10.30 p.m. a scuffle concerning a parking space broke out between the applicant, who was fifteen years old at the time, his father, and their two neighbours (E.N. and M.E.N.).

5. According to the police incident report, when the police arrived at the scene, they called an ambulance for the applicant and his father who were injured. They were informed by bystanders that a violent scuffle involving weapons had broken out between the parties. The police found an air gun that was broken into pieces and a knife at the crime scene. The police noted that E.N. had left the scene to seek medical attention for himself. As they were taking M.E.N. into police custody, E.N., having returned, joined them to go to the police station.

6 . During the initial examination at the hospital it was established that the applicant had cuts around his head measuring 2-3 cm each; two ecchymoses on his forehead; reduced mobility to his left elbow and soft tissue trauma on his middle left finger and that his father had a cut on the back of his head as a result of a blow by the back of a pistol and a cut over his right eyebrow as well as several other contusions.

7. It appears that after the quarrel, E.N. and M.E.N. sought medical examinations on their own. According to private hospital records, M.E.N. had a bruise on his finger and redness on his knees whereas E.N. suffered abrasions ranging from 0.5 to 2 cm on various parts of his body.

8. The forensic medicine institution also examined the applicant and the other parties involved in the quarrel. A report of 1 October 2009, after summarising the applicant’s hospital report the previous day (see paragraph 6 above), stated that the applicant’s injuries could be treated with simple medical intervention.

9. On 1 October 2009 at 1.40 am the police took the applicant’s statement as a complainant. According to the statement, the applicant did not request the assistance of a lawyer. He explained that E.N. and M.E.N. had approached his father while he was at the parking space with his mother who was helping him to unload items from the car. The offenders demanded why they had parked in that space. After his father replied that this was the front of his house, one of them – he had not seen which – hit his father with a hard object. His father lost consciousness and fell to the ground. At that point they pressed him into the car’s window and started hitting him with an object. Later he had learned from his mother that it had been the back of a pistol. He remembered losing consciousness. He told the police that he had not hit anyone and that he did not know how E.N. had ended up with injuries.

10. On 1 October 2009 at 4 p.m. the applicant was called to the police station for questioning. According to the police record, since the Bar Association refused to appoint a defence council and since it was mandatory for a minor to be questioned in the presence of a lawyer, he was returned to his mother without being questioned.

11 . On 2 October 2009 the applicant was questioned as a suspect by the public prosecutor in the absence of an attorney. He stated that he did not hit anyone and that E.N. and M.E.N. had attacked him and his father with the back end of a pistol because of a parking dispute. The statement was signed by the applicant and his father where it was noted that the Istanbul Bar Association had refused to appoint a lawyer on the previous day.

12. On various dates, the prosecuting authorities took statements from the applicant’s father, E.N. and M.E.N.

13. The public prosecutor decided to prosecute the parties involved. Since only the applicant was a minor at the time of the events, separate proceedings were lodged against him in the juvenile court and regular proceedings were lodged against the other parties in the Magistrates’ Court where the applicant participated in the proceedings as an intervening party.

14. On 23 July 2010 the applicant was indicted before the juvenile court on the charge of simple assault against E.N. and M.E.N.

15. The applicant was appointed a lawyer during those proceedings and he gave a statement before the juvenile court in the first hearing in the presence of his lawyer where he stated that he tried to break up the fight that broke out between his father and E.N. and M.E.N. and that he fainted when the latter hit him. According to the minutes of the same hearing, the applicant’s statement was read out during the preliminary investigation (that is to say before the public prosecutor) and this was confirmed by the applicant and his lawyer.

16. On 5 May 2011 the juvenile court convicted the applicant as charged and imposed a judicial fine in respect of each complainant after hearing E.N. and M.E.N. as complainants and several witnesses. The court decided not to suspend the pronouncement of the judgment against the applicant because it did not consider it likely that the applicant would not reoffend.

17. As the judicial fine was below the appeal threshold, the decision was final and not amenable to appeal.

18. On 12 November 2009 the public prosecutor filed a bill of indictment before the Gaziosmanpaşa Magistrates’ Court (“Magistrates’ Court”), identifying all parties as both victims and offenders and charging them against each other for assault, qualified assault and M.E.N. and E.N. for the assault of the applicant who was named as the victim. The applicant joined these proceedings as an intervening party.

19. The Magistrates’ Court decided to seek an expert report from the Forensic Medicine Institute concerning the applicant’s injuries. In its report submitted to the court on 26 August 2011, the experts noted that the applicant had not suffered a fracture and that his injuries could be treated with simple medical intervention.

20. As a result of the objection to the expert report of 26 August 2011 by the mother of the applicant , the Court decided to seek an additional report from the Forensic Medicine Institute having regard to the submissions of the applicant and his mother that he had suffered a fracture to his left hand and that they had X-rays taken on the date of the incident to corroborate it. The Forensic Medicine Institute addressed a note to the court on 17 September 2013 that recommended that the specialised department should examine the applicant and his medical reports.

21 . On 9 October 2013 after examining the applicant’s medical reports of 1 October 2009, 26 August 2011 and the additional note of 17 September 2013, the board of specialist doctors at the Forensic Medicine Institute concluded that the report of 26 August 2011 had been incorrect to state that the applicant had not suffered a fracture. They furthermore noted that the file of 26 August 2011 had not included the applicant’s x-ray taken at the date of the incident which revealed a fracture to the applicant’s left middle finger. They therefore concluded his injuries could not be classified as treatable with simple medical intervention.

22. On 24 April 2014 the Magistrates’ Court rejected the case for lack of jurisdiction, holding that the inconsistent conclusions between the applicant’s forensic examination reports of 26 August 2011 and 9 October 2013 revealed that the case went beyond an incident of simple battery and that therefore Gaziosmanpaşa Criminal Court of General Jurisdiction (“Criminal Court”) was the competent court to examine the case.

23. The proceedings against E.N., M.E.N. and the applicant’s father were therefore continued before the Criminal Court. On 14 March 2016 the Criminal Court decided to seek an expert report from the Plenary Division of the Forensic Medicine Institute with a view to resolving the inconsistent conclusions between the applicant’s medical report of 26 August 2011 and that of 9 October 2013.

24. In a report submitted to the Assize Court on 14 July 2016 the Plenary Division of the Forensic Medicine Institute affirmed the report of the specialist board (see paragraph 21 above) and concluded that while the injuries sustained by the applicant had not been life-threatening, they nevertheless could not be treated with simple medical intervention on account of the fact that he had a fracture that impacted his life skills moderately (ranking 2) on the scale of mild (1), moderate (2-3) and severe (4-5-6).

25. On 23 January 2019 the Criminal Court convicted M.E.N. for assaulting the applicant with a weapon with one year, one month and three days’ imprisonment but decided to suspend the pronouncement of the judgment having regard to the absence of M.E.N.’s criminal record. The decision to suspend the pronouncement of the judgment against M.E.N. was amenable to appeal.

26 . In their additional observations of 24 February 2021 informing the Court of factual developments in the case, the Government submitted that the decision of 23 January 2019 became final on 12 February 2019 in the absence of an ordinary appeal and that no individual appeal before the Constitutional Court had been lodged.

27. The relevant domestic law can be found in A.Ş. v. Turkey (no. 58271/10, § 31, 13 September 2016), and Harun Gürbüz v. Turkey (no. 68556/10, § 48, 30 July 2019).

COMPLAINTS

28. Relying on Article 6 § 1 of the Convention, the applicant complained that he had been deprived of legal assistance during the preliminary investigation stage of the criminal proceedings against him despite the fact that it was mandatory under Article 150 of the Code of Criminal Procedure to appoint a lawyer for him as he had been a minor at the time. He further complained of the alleged failure of domestic authorities to conduct an effective investigation into his injuries caused by third persons.

THE LAW

29. The applicant complained of the alleged ineffectiveness of the investigation into the incident of 30 September 2009. The Court considers that the applicant’s complaint should be examined from the standpoint of Article 3 which reads as follows:

Article 3

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

30. The Government considered that the applicant had not complied with his obligation to exhaust domestic remedies as the criminal proceedings against the third persons involved in the incident of 30 September 2009 had been ongoing before the criminal courts, and as such the complaint had been premature at the time of lodging the application with the Court. Secondly, the Government argued that the applicant should have lodged an individual appeal with the Constitutional Court, which had been entrusted with the power to provide redress for violations of the rights and freedoms protected by the Convention as of 23 September 2012, as acknowledged by the Court in its decision in Uzun v. Turkey ((dec.), no. 10755/13, §§ 68-71, 30 April 2013). In their opinion, at any point after 23 September 2012, and without awaiting the decision in the criminal proceedings before the Criminal Court, the applicant had the possibility to lodge an individual appeal however, he had failed to do so. In their additional observations, in which the Government informed the Court of the fresh developments in the domestic proceedings (see paragraph 26 above), the Government also submitted that the applicant had not lodged an individual appeal before the Court after the decision of 23 January 2019.

31. The applicant contested the Government’s objection, arguing that the remedy of individual appeal did not exist at the date when he introduced his application before the Court.

32. The Court refers to the general principles on the requirement to exhaust domestic remedies set out in the case of Vučković and Others v. Serbia ((preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 69‑77, 25 March 2014). The assessment of whether domestic remedies have been exhausted is normally carried out with reference to the date on which the application was lodged with the Court. However, as the Court has held on many occasions, this rule is subject to exceptions, which may be justified by the particular circumstances of each case (see Baumann v. France , no. 33592/96, § 47, ECHR 2001-V).

33. The Court notes that the present application was introduced before the Court on 4 November 2011, that is to say after the conclusion of criminal proceedings against the applicant and at a time when the criminal proceedings against his offenders had been ongoing before domestic courts for about two years. While it is not in dispute that the remedy of individual appeal before the Constitutional Court became available only after the applicant introduced his application before the Court, the question is whether the applicant could have been expected to make use of that remedy at any point after its entry into force on 23 September 2012, while his application was pending examination before the Court.

34. In previous cases involving allegations of Articles 2 and 3 of the Convention against Turkey where the impugned investigation had still been ongoing before domestic bodies when the application was pending examination before the Court, the Court dismissed a similar objection of the Government (see Şükrü Yıldız v. Turkey , no. 4100/10, § 45, 17 March 2015), by taking into account the considerable period of time that had lapsed from the incident complained of until the date of introduction of the application before the Court and the date on which the new remedy became available. In the case of Şükrü Yıldız (ibid.), having regard to the fact that a period of nine years had already lapsed between the incident complained of and the application date, the Court held that there were no particular circumstances in the case to justify a departure from the general principle that the exhaustion requirement must be assessed with reference to the time at which the application was lodged (see, in the same vein, Sıdıka İmren v. Turkey , no. 47384/11, §§ 49-51, 13 September 2016, [where the investigation was already pending for ten years at the time of introduction of the application]; Mızıka and Atay v. Turkey , no. 65146/12, § 46, 18 October 2016 [investigation already pending for six years and six months]; and Müftüoğlu and Others v. Turkey , no. 34520/10 and two others, § 54, 28 February 2017 [investigation already pending for eleven years]).

35. That being so, the Court notes that the present case is different from the cases cited above in that it was lodged before the Court on 4 November 2011, that is to say two years after the incident of 30 September 2009, at a time when the proceedings against the applicant’s offenders were ongoing before national authorities and there had not been considerable delay or a significant period of inactivity on the part of the prosecution or judicial authorities (see, for a similar conclusion, Şefika Ak and Others v. Turkey (dec.), no. 38628/10, §§ 37-44, 20 December 2018). Therefore, the Court does not consider that at the date of introduction of the application there were signs suggesting a lack of diligence and expedition on the part of the authorities (see also ibid., § 37).

36. Furthermore, in as much as the applicant’s complaint concerned the alleged ineffectiveness of the investigation on account of the ongoing criminal proceedings, the Court reiterates that the Constitutional Court’s practice shows that it accepts an extension of its jurisdiction ratione temporis to situations involving a continuing violation which had commenced before the introduction of the right of individual appeal and had carried on after that date (see Koçintar v. Turkey (dec.), no. 77429/12, §§ 15-26, 39, 1 July 2014, and Karahasanoğlu v. Turkey , nos. 21392/08 and 2 others, § 123, 16 March 2021). Nothing therefore prevented the applicant from using this remedy as of 23 September 2012 (see Şefika Ak and Others , cited above, §§ 42-43). That being the case, it does not appear that the applicant attempted to use the new remedy or that special circumstances existed which absolved him from doing so. The Court also notes that after the decision of 23 January 2019 in the impugned proceedings, the applicant did not introduce an individual appeal either.

37. In the light of the foregoing, the Court considers that the Government’s objections must be upheld, and this part of the application must be declared inadmissible for non-exhaustion of domestic remedies.

38. Relying on Article 6 § 1 of the Convention the applicant complained about the unfairness of the criminal proceedings against him on account of the authorities’ failure to appoint him a lawyer in the preliminary stage of the proceedings despite it being mandatory.

39. The Court will examine his complaints under Article 6 §§ 1 and 3 (c), which, in so far as relevant, provides:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time 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; ...”

40. The general principles with regard to access to a lawyer, the right to remain silent, the privilege against self-incrimination, the waiver of the right to legal assistance and the relationship of those rights to the overall fairness of the proceedings under the criminal limb of Article 6 of the Convention can be found in Ibrahim and Others v. the United Kingdom ([GC], nos. 50541/08 and 3 others, §§ 249-74, 13 September 2016); Simeonovi v. Bulgaria ([GC], no. 21980/04, §§ 110-20, 12 May 2017); and Beuze v. Belgium [GC] (no. 71409/10, §§ 119-50, 9 November 2018).

41. The Court also reiterates that the rights guaranteed by Article 6 § 3 are not ends in themselves: their intrinsic aim is always to contribute to ensuring the fairness of the criminal proceedings as a whole. Compliance with the requirements of a fair trial must be examined in each case having regard to the development of the proceedings as a whole and not on the basis of an isolated consideration of one particular aspect or one particular incident (see Beuze , cited above, §§ 121-22, and Akdağ v. Turkey , no. 75460/10, § 47, 17 September 2019).

42. Turning to the case at hand, the Court notes that the applicant was not questioned by the police on account of the fact that no lawyer could be appointed to him by the Bar Association. That being so, the next day he was questioned by the public prosecutor in the absence of a lawyer contrary to the provisions of the Code of Criminal Procedure, making it mandatory for minors to be represented during all stages of the proceedings. The fact that the Bar Association refused to provide a lawyer at the relevant time and given that no additional steps were taken by prosecuting authorities to ensure the applicant was availed of his right to legal assistance do not suffice to demonstrate the existence of any exceptional circumstances which could have justified the restrictions of the applicant’s right, and it is not for the Court to ascertain such circumstances of its own motion ( Simeonovi , § 130 and Beuze , § 163 both cited above). Accordingly, the Court must apply a very strict scrutiny in assessing whether the overall fairness of the proceedings was not irretrievably prejudiced by the restriction on access to legal advice ( Beuze , cited above, § 145).

43. The Court reiterates that the privilege against self‑incrimination is not confined to actual confessions or to remarks which are directly incriminating; for statements to be regarded as self‑incriminating it is sufficient for them to have substantially affected the accused’s position (see Mehmet Ali Eser v. Turkey , no. 1399/07, 15 October 2019 and the cases cited therein).

44. The Court observes that the statements given by the applicant before the public prosecutor did not contain any confessions. The applicant stated that he had not hit anyone and that he and his father had been attacked by M.E.N. and E.N. (see paragraph 11 above). The applicant did not change his versions of the events in the course of the proceedings, and nor did he retract his statement taken before the public prosecutor. Finally, when his statement was read out in the course of the proceedings, he confirmed it in the presence of his lawyer.

45. Finally, the applicant did not explain how the initial restrictions of his right to a lawyer had irretrievably prejudiced the overall fairness of the proceedings in his case.

46. As a result, the Court is of the view that there is nothing in the case file showing that the statements taken from the applicant in the absence of a lawyer at the pre-trial stage of the proceedings substantially affected his position, nor did the applicant argue otherwise before the Court (see Mehmet Ali Eser , cited above, § 57).

47. Given the findings above, it follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Articles 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 21 October 2021.

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Hasan Bakırcı Carlo Ranzoni Deputy Registrar President