SECOND SECTION

DECISION

Application no. 6675/10 Abdullah GÃœNAY and Metin YAMALAK 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 November 2009,

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

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The applicants, Mr Abdullah Günay (“the first applicant”) and Mr Metin Yamalak (“the second applicant”), are two Turkish nationals, who were born in 1979 and 1980 and are detained in K ı r ı kkale and Bolu respectively. They were represented before the Court by Mr M. Erbil, a lawyer practising in Istanbul.

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

A. The circumstances of the case

1. On 25 April and 30 March 1999 the first and second applicants respectively, were arrested and placed in police custody on suspicion of membership of an illegal organisation and of attacking a shopping centre (Mavi Çarşı) with Molotov cocktails, killing thirteen persons.

2. On 26 and 4 April 1999, respectively, police officers at the Istanbul Security Directorate took statements from the first and second applicants respectively, in the absence of a lawyer. They both confessed to being members of the illegal organisation and admitted starting a fire by throwing Molotov cocktails at the shopping centre in March 1999.

3. On 30 and 6 April 1999 the Istanbul public prosecutor took the statements of the first and second applicants respectively.

4. Subsequently, they were also questioned by the investigating judge. The first applicant was questioned in the absence of his lawyer but when the second applicant was interviewed, his lawyer was present. The investigating judge then ordered the applicants ’ pre-trial detention.

5. On 6 May 1999 the Istanbul public prosecutor issued an indictment, charging the applicants under Article 125 of the then Criminal Code.

6. On 14 July 1999 criminal proceedings commenced before the Istanbul State Security Court, which was later replaced by the Istanbul Assize Court following the abolition of the State Security Courts in July 2004.

7. On 7 May 2007 the Istanbul Assize Court convicted the applicants as charged and sentenced them to “aggravated” life imprisonment (without the possibility of parole) for being members of an illegal organisation and for the murder of thirteen persons. The first-instance court based its decision on several items of evidence, such as the applicants ’ statements to the police, the public prosecutor and the investigating judge; video recordings and written records of crime-scene visits; autopsy reports; eyewitness identification; ballistics reports; and statements of some other accused persons.

8. On 7 May 2009 the Court of Cassation upheld the judgment. That decision was deposited with the registry of the first-instance court on 8 July 2009.

B. Relevant domestic law and practice

1. Relevant domestic law

9. A description of the relevant domestic law concerning the right of access to a lawyer may be found in Salduz v. Turkey ([G C], no. 36391/02, §§ 27 ‑ 31, ECHR 2008).

10. On 15 July 2003 Law no. 4928 repealed section 31 of Law no. 3842, thereby lifting the restriction on an accused ’ s right of access to a lawyer in proceedings before the State Security Courts.

11. Article 311 § 1 of the Code of Criminal Procedure, entitled “Grounds for reopening criminal proceedings in favour of convicted persons”, reads as follows:

“Criminal proceedings terminated by a final judgment shall be re-examined by way of reopening the proceedings in favour of the convicted person if:

(a) it is understood that a document used during the trial that affected the judgment was false;

(b) it is understood that a witness or an expert who testified under oath gave false evidence or voted against the convicted person in a way that affected the judgment;

(c) one of the judges who [was on the bench that] convicted the person was at fault in relation to the performance of his or her duties to an extent that necessitated his or her criminal prosecution or conviction, save in cases where the fault was attributable to the convicted person;

(d) a civil court judgment that was relied on as the basis for the criminal conviction has been rendered null and void by another final judgment;

(e) new facts or new evidence are presented which either alone or in relation to the previous evidence may lead to the acquittal of the person who was convicted, or to his conviction on the basis of a more lenient criminal-law provision;

(f) the European Court of Human Rights finds a violation of a right protected by the Convention and its Protocols and establishes that the criminal conviction is based on that violation. In that case, a request to reopen the proceedings may be made within one year of the date of the judgment of the European Court of Human Rights becoming final.

...”

12. On 31 July 2018 Law no. 7145 entered into force, amending, inter alia , sub-paragraph (f) of Article 311 § 1 of the Code of Criminal Procedure which now allows applicants to make a request to reopen the criminal proceedings against them in the event of the case being struck out by a Court decision on the basis of a unilateral declaration or a friendly settlement.

13. A description of the relevant domestic law and practice concerning, inter alia , the execution of life sentences can be found in the case of Öcalan v. Turkey (no. 2) (nos. 24069/03 and 3 others, §§ 62-71, 18 March 2014).

2. Relevant practice

14. In a leading decision delivered on 7 June 2018 in application no. 2015/10131 the Constitutional Court ’ s Grand Chamber revisited its approach towards the applicability of Article 6 of the Convention to proceedings concerning the reopening of criminal proceedings where the applicants were no longer “persons charged with a criminal offence” but persons “convicted” as a result of judicial decisions deemed final under Turkish law. The Constitutional Court held that the Code of Criminal Procedure left no discretion to the domestic courts to reject an application for the reopening of criminal proceedings in the event of a finding of a violation by the European Court of Human Rights. Likewise, in the event that the Constitutional Court found a violation and ordered the reopening of proceedings with a view to remedying that violation, the domestic courts did not enjoy any discretion in relation to the reopening of proceedings. However, it took the view that applications to reopen criminal proceedings based on reasons other than those two grounds fell outside the scope of the right to a fair trial. As a result, the application before the Constitutional Court, which concerned the rejection by the domestic courts of the appellant ’ s request for the reopening of criminal proceedings following the emergence of new facts (Article 311 § 1 (e) of the Code of Criminal Procedure) was declared inadmissible as being incompatible ratione materiae with the provisions of Article 36 of the Constitution.

15. On 12 June 2018 in application no. 2015/12755 the Constitutional Court examined a refusal by a first-instance court to reopen proceedings, as requested by the applicant, after the Court had found a violation of his rights under Article 6 §§ 1 and 3 (c) of the Convention in its judgment in Yiğitdoğan v. Turkey (no. 2) (no. 72174/10, 3 June 2014). In that case, the first-instance court rejected a request by the applicant for the reopening of the proceedings following the Court ’ s finding of a violation taking into consideration that the complaint concerning the denial of access to a lawyer had already been examined and rejected during the course of the previous proceedings in a decision which had been upheld by the Court of Cassation and had thus become final. As a result, it took the view that the conditions laid down in Article 311 of the Code of Criminal Procedure for the reopening of the criminal proceedings had not been met in the applicant ’ s case. However, the Constitutional Court disagreed with the first-instance court ’ s approach to and interpretation of the Code of Criminal Procedure, holding that the Court ’ s finding of a violation affected the safety of the applicant ’ s conviction and thus constituted a “serious” reason for reopening the proceedings. Therefore, a refusal to do so was not compatible with the Court ’ s judgment and the first-instance court ’ s interpretation lacked the proper examination required by the right to a fair trial. In view of the above, the Constitutional Court found a violation of the applicant ’ s rights under Article 36 of the Constitution.

COMPLAINTS

The applicants complained under Article 6 § 3 (c) of the Convention that they had been denied legal assistance while in police custody.

The applicants also complained under Article 3 of the Convention that the sentence imposed on them, namely an aggravated life sentence, amounted to inhuman and degrading treatment as its execution would continue for the rest of their lives with no prospect of release and no possibility of review.

THE LAW

A. Alleged violation of the applicants ’ right to a lawyer during police custody

16. The applicants alleged that they had not had a fair trial in that they had not been able to have the assistance of a lawyer during their detention in police custody. They relied on Article 6 § 3 (c) of the Convention.

17. The Court will examine their 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;

...”

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

“The Government of Turkey acknowledge that in the present case there has been a violation of the applicants ’ 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 applicants ’ complaints under Article 6 of the Convention.

The Government thus offer to pay each of the applicants, Abdullah Günay and Metin Yamalak, 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.”

19. By a letter of 28 September 2018 the applicants indicated, without providing any details, that they were not satisfied with the terms of the unilateral declaration.

20. The Court re iterates 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), in particular, enables the Court 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”.

21. 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 the respondent Government even if the applicants wish the examination of the case to be continued.

22. To this end, the Court has examined the declaration in the present case in the light of the principles emerging from its case-law, in particular the judgment in Tahsin Acar v. Turkey ( (preliminary issue) [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI; see also 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).

23. 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).

24. In the above-mentioned cases, the Court , without examining whether the systemic nature of the restriction on the applicants ’ 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 applicants ’ 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.

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

26. 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 Salduz v. Turkey [GC], no. 36391/02, §§ 27-31, ECHR 2008) and that a new Code of Criminal Procedure (Law no. 5271) entered into force on 1 June 2005, in which there is no provision for a systemic restriction on the right of access to a lawyer.

27. 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 reopening criminal proceedings. Thus, the Court is satisfied that the domestic law provides for a remedy whereby 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, and compare Sroka v. Poland (dec.), no. 42801/07, 6 March 2012).

28. In that connection, it further points out that in accordance with the Court ’ s case-law and practice, reopening 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 considers 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.

29. Moreover, the Court has also taken note of the Constitutional Court ’ s leading decision in application no. 2015/10131, in which it held that the Code of Criminal Procedure left no discretion to the domestic courts to refuse requests for the reopening of proceedings on the basis of a finding of a violation by the European Court of Human Rights. The Court further takes note of the Constitutional Court ’ s decision in application no. 2015/12755, in which it found a violation of the right to a fair trial on the basis of the domestic court ’ s refusal to reopen criminal proceedings in respect of the applicant in Yiğitdoğan v. Turkey (no. 2) (no. 72174/10, 3 June 2014) following a finding by the Court of a violation of his rights under Article 6 §§ 1 and 3 (c) of the Convention on account of the lack of legal assistance afforded to him while in police custody.

30. Having regard to the nature of the admissions contained in the Government ’ s declaration, as well as the amount of compensation proposed – which is commensurate 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 applicants to exercise any other available remedies in order to obtain redress (see Jeronovi č s v. Latvia [GC], no. 44898/10, §§ 116 ‑ 18, 5 July 2016).

31. 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 ).

32. Finally, the Court emphasises that in the present case, 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 (see Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008).

33. In view of the above, it is appropriate to strike the case out of the list in so far as it relates to the complaint under Article 6 of the Convention.

B. Alleged violation of the applicants ’ rights under Article 3 of the Convention

34. Relying on Article 3 of the Convention, the applicants also complained that the imposition on them of an aggravated life sentence (without the possibility of parole) was, by its nature, contrary to the principles of Article 3 of the Convention. In that connection, they maintained that Turkish legislation did not provide for a review of the aggravated life sentence that had been imposed on them. Article 3 of the Convention reads as follows:

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

35. The Government contested those claims and raised a plea of non-exhaustion of domestic remedies, arguing that the applicants should have lodged an individual application with the Constitutional Court as the matter complained of was of an ongoing character given that the applicants were still serving their sentences.

36. The applicants contested that argument.

37. The Court has recently examined an almost identical complaint under Article 3 of the Convention in Tekin and Baysal v. Turkey ((dec.), nos. 40192/10 and 8051/12, §§ 25-28, 4 December 2018) where the applicants complained that they had no prospect of release as they had been sentenced to aggravated life sentences. In that case, the Court considered that the situation complained of had started prior to the entry into force of the right to individual application before the Constitutional Court, that is to say before 23 September 2012, and continued after that date. In other words, the situation giving rise to the applicants ’ complaint was an ongoing one which justified departing from the general rule that the exhaustion requirement must be assessed with reference to the date on which the application was lodged. As a result, the Court found the applicants ’ complaint inadmissible on account of their failure to lodge an application with the Constitutional Court in respect of their complaint.

38. The Court has examined the applicants ’ complaint under Article 3 of the Convention in the light of the above-mentioned approach and finds no particular circumstances to justify a departure from those findings in the present case (compare, Boltan v. Turkey , no. 33056/16, §§ 27, 38 ‑ 43, 12 February 2019; and contrast Gömi v. Turkey , no. 38704/11, §§ 56 ‑ 7, 19 February 2019 ).

39. Consequently, this complaint must be rejected for non-exhaustion of domestic remedies, in accordance with Article 35 §§ 1 and 4 in fine 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 in accordance with Article 37 § 1 (c) of the Convention in so far as it concerns the complaint under Article 6 §§ 1 and 3 (c) 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