SECOND SECTION

DECISION

Application no. 2508/05 Aydın GÜZEL and O thers against Turkey

The European Court of Human Rights (Second Section), sitting on 30 April 2019 as a Committee composed of:

Julia Laffranque , President, Stéphanie Mourou-Vikström , Arnfinn Bårdsen , judges, and Hasan Bakırcı, Deputy Section Registrar ,

Having regard to the above application lodged on 8 December 2004,

Having regard to the declaration submitted by the respondent Government on 6 September 2018 requesting the Court to strike the application out of the list of cases and the applicants ’ reply to that declaration,

Having deliberated, decides as follows:

FACTS AND PROCEDURE

1. A list of the applicants is set out in the appendix.

2. The Turkish Government (“the Government”) were represented by their Agent.

3. The applicants complained under Article 6 §§ 1 and 3 (c) of the Convention about the unfairness of the criminal proceedings due to the systemic restriction imposed on his right of access to a lawyer during the pre-trial stage pursuant to Law no. 3842 and the subsequent use by the trial court of the statements taken in the absence of a lawyer and under alleged duress. They further complained under Article 6 § 1 about the alleged absence of procedural safeguards in place with regard to alleged procedural shortcomings at the pre-trial stage and their alleged inability to challenge documentary evidence. Lastly, the applicant Tahir Laçin complained under Article 3 of the Convention that he had been subjected to ill-treatment during the police custody.

4. The application had been communicated to the Government .

THE LAW

A. As regards the complaint under Article 6 §§ 1 and 3 of the Convention

5. After the failure of attempts to reach a friendly settlement, by a letter of 6 September 2018 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.

6. The declaration provided as follows:

“The Government of Turkey acknowledge that in the present case there has been a violation of the applicant ’ s rights under Articles 6 §§ 1 and 3 of the Convention in the light of the well-established case-law of the Court.

The Government also recalls that Law no. 4928 on 15 July 2003 repealed the provision concerning the systemic restriction on the right of access to a lawyer.

The Government further emphasises that Article 311 § 1 (f) of the Code on Criminal Procedure, as amended by Law no.7145 of 31 July 2018, now requires reopening of criminal proceedings in cases where the European Court of Human Rights decides to strike an application out of its list of cases following a friendly settlement or a unilateral declaration. The Government considers that the aforementioned remedy is capable of providing redress in respect of the applicant ’ s complaints under Article 6 of the Convention.

The Government thus offer to pay each of the applicants, Aydın Güzel , Kıymet Karaman , Tahir Laçin , EUR 500 (five hundred euros) to cover any pecuniary and non-pecuniary damage as well as costs and expenses, plus any tax that may be chargeable to the applicant with a view to resolving the above-mentioned case pending before the European Court of Human Rights.

This sum will be converted into Turkish liras at the rate applicable on the date of payment, and will be payable within three months from the date of notification of the decision by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The payment will constitute the final resolution of the case.”

7. By a letter of 9 October 2018 the applicant s ’ representative indicated that the applicants were not satisfied with the terms of the unilateral declaration as they found the amount offered by the Government too low. He further stated that the Law no. 7145 of 31 July 2018 could not remedy the applicants ’ situation.

8. The Court reiterates that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified, under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:

“ for any other reason established by the Court, it is no longer justified to continue the examination of the application”.

9. The Court also reiterates that in certain circumstances, it may strike out an application under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued.

10. To this end, the Court has examined the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment ( Tahsin Acar v. Turkey (preliminary objections) [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI; WAZA Sp. z o.o . v. Poland ( dec. ), no. 11602/02, 26 June 2007; and Sulwińska v. Poland ( dec. ), no. 28953/03, 18 September 2007).

11. The Court has established in a number of cases, including cases brought against Turkey, its practice concerning complaints of systemic denial of legal assistance and the use of evidence obtained in the absence of a lawyer to convict applicants (see, among other authorities, Mehmet Duman v. Turkey , no. 38740/09, 23 October 2018; Ömer Güner v. Turkey , no. 28338/07, 4 September 2018; Girişen v. Turkey , no. 53567/07, 13 March 2018; Canşad and Others v. Turkey , no. 7851/05, 13 March 2018; İzzet Çelik v. Turkey , no. 15185/05, 23 January 2018; and Bayram Koç v. Turkey , no. 38907/09, 5 September 2017).

12. In the above-mentioned cases, the Court, without examining whether the systemic nature of the restriction on the applicant ’ s right of access to a lawyer was, in itself, sufficient to find a violation of Article 6 §§ 1 and 3 (c) of the Convention, held that the use of the applicant ’ s statements to the police by the trial court, without examining the question of their admissibility and the Court of Cassation ’ s subsequent failure to remedy that shortcoming, had constituted a violation of that Article. Moreover, in all of the above cases, the Court considered that the finding of a violation of Article 6 §§ 1 and 3 (c) of the Convention constituted sufficient just satisfaction for the non-pecuniary damage sustained by the applicants.

13. Furthermore, in so far as the present case concerns the first two applicants, namely Aydın Güzel and Kıymet Karaman , the Court has also established in a number of cases, including those brought against Turkey, its practice concerning complaints about lack of an adequate and proper opportunity for applicants to challenge documentary evidence against them (see Murtazaliyeva v. Russia [GC], no. 36658/05, §§ 150-168; 18 December 2018, and Ünel v. Turkey , no. 35686/02, §§ 27-47, 27 May 2008).

14. Lastly, in so far as it concerns the third applicant Tahir Laçin , the Court has also established in a number of cases, including those brought against Turkey, its practice concerning complaints about the use of statements taken under alleged duress and in the absence of a lawyer (see Özcan Çolak v. Turkey , no. 30235/03, 6 October 2009, and Örs and Others v. Turkey , no. 46213/99, 20 June 2006).

15. The Court further observes that the Government have explicitly acknowledged in their unilateral declaration a violation of Article 6 §§ 1 and 3 of the Convention.

16. It is also important to note that the legal provisions from which the issue of systemic restriction on the right to a lawyer stemmed were repealed by Law no. 4928 of 15 July 2003 (see further, Salduz v. Turkey [GC], no. 36391/02, §§ 27 ‑ 31, ECHR 2008).

Salduz , cited above, §§ 27 ‑ 31) and that a new Code of Criminal Procedure (Law no. 5271) entered into force on 1 June 2005 in which there is no systemic restriction on the right of access to a lawyer.

17. The Court further notes that, until 31 July 2018, Article 311 § 1 (f) of the Code of Criminal Procedure provided applicants with a remedy entailing the possibility of reopening criminal proceedings solely on the basis of a judgment of the Court finding a violation of the Convention or the Protocols thereto. However, following the entry into force of Law no. 7145 on 31 July 2018, applicants are now entitled to lodge an application for the reopening of criminal proceedings following a decision by the Court to strike their case out of its list of cases on the basis of a friendly settlement or a unilateral declaration, as these two situations are now exhaustively listed in Article 311 § 1 (f) of the Code of Criminal Procedure as grounds for the reopening of criminal proceedings. Thus, the Court is satisfied that the domestic law provides for a remedy whereby the applicants are able to request the reopening of proceedings following a decision or judgment striking out an application on the basis of a friendly settlement or a unilateral declaration (contrast, Igranov and Others v. Russia , nos. 42399/13 and 8 others, § 26, 20 March 2018, with further references therein, and compare Sroka v. Poland ( dec. ), no. 42801/07, 6 March 2012).

18. In that connection, it further points out that in accordance with the Court ’ s case-law and practice, reopening of the domestic proceedings is the most appropriate way to provide an effective solution to an alleged breach of Article 6 of the Convention, should the applicant so request. Thus, it is considered that the aforementioned remedy is capable of providing redress in respect of the applicants ’ complaints under Article 6 of the Convention. Bearing in mind the Court ’ s subsidiary role in protecting the rights and freedoms guaranteed by the Convention and its Protocols, the Court notes that it falls, in the first place, to the national authorities to redress any violation of the Convention.

19. Having regard to the nature of the admissions contained in the Government ’ s declaration, as well as the amount of compensation proposed – which is consistent with the amounts awarded in similar cases – the Court considers that it is no longer justified to continue the examination of the application (Article 37 § 1 (c)). That decision is without prejudice to the possibility for the applicant to exercise any other available remedies in order to obtain redress (see Jeronovičs v. Latvia [GC], no. 44898/10, §§ 116 ‑ 118, 5 July 2016).

20. Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the application (Article 37 § 1 in fine ).

21. Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the application could be restored to the list in accordance with Article 37 § 2 of the Convention ( Josipović v. Serbia ( dec. ), no. 18369/07, 4 March 2008).

22. In view of the above, it is appropriate to strike this part of the application out of the list.

B. As regards the complaint under Article 3 of the Convention

23. Relying on Article 3, the applicant Tahir Laçin also complained of the alleged ill-treatment he was subjected to in the police custody.

24. On 22 August 1996 the applicant lodged a criminal complaint with the public prosecutor ’ s office against the police officers who had allegedly ill-treated him. The applicant maintained that he was not informed of the outcome of his complaint.

25. The Government submitted in their observations that there were no documents in their records on whether there had been any further official investigation on the applicant ’ s complaints of ill-treatment, and that no decision had been rendered by the competent domestic courts on this issue.

26. The applicant must be considered to have been aware of the lack of any effective criminal investigation long before 8 December 2004, the date on which he lodged an application with the Court. If, as the applicant alleges, he did not become aware of this situation for eight years, that was due to their own negligence(see Mocanu and Others v. Romania [GC], nos. 10865/09 and 2 others, § 263, ECHR 2014 (extracts); see also Bulut and Yavuz v. Turkey ( dec. ), no. 73065/01, 28 May 2002).

27. It follows that this part of the application must be rejected for non ‑ compliance with the six-month time-limit in accordance with Article 35 §§ 1 and 4 of the Convention.

C. Remaining complaints

28. Relying on Article 6 § 1 of the Convention, the first two applicants Aydın Güzel and Kıymet Karaman also complained about the use by the trial court of their statements taken under alleged duress.

29. The third applicant Tahir Laçin further complained under Article 6 §§ 1 and 3 (d) of a lack of an adequate and proper opportunity to challenge documentary evidence against him, specifically the documents that had been produced by the police based on the video footage and the statements of the co ‑ accused who were under police custody.

30. Having examined these complaints 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 finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

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

For these reasons, the Court, unanimously,

Takes note of the terms of the respondent Government ’ s declaration under Article 6 §§ 1 and 3 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;

Decides to strike the application out of its list of cases pursuant to Article 37 § 1 (c) of the Convention in so far as it relates to the complaints under Article 6 §§ 1 and 3 of the Convention ;

Declares the remainder of the application inadmissible.

Done in English and notified in writing on 23 May 2019 .

Hasan Bakırcı Julia Laffranque Deputy Registrar President

Appendix

No.

Firstname LASTNAME

Birth year

Nationality

Place of residence

Representative

Aydın GÜZEL

1974Turkish

Istanbul

F.N. Ertekin

Kıymet KARAMAN

1976Turkish

Istanbul

F.N. Ertekin

Tahir LAÇİN

1961Turkish

Ankara

F.N. Ertekin