SECOND SECTION

CASE OF ÖMER GÜNER v. TURKEY

( Application no. 28338/07 )

JUDGMENT

STRASBOURG

4 September 2018

FINAL

04/12/2018

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Ömer Güner v. Turkey ,

The European Court of Human Rights ( Second Section ), sitting as a Chamber composed of:

Robert Spano, President, Ledi Bianku, Işıl Karakaş, Nebojša Vučinić, Valeriu Griţco, Jon Fridrik Kjølbro, Stéphanie Mourou-Vikström, judges, and Hasan Bak ırcı , Deputy Section Registrar ,

Having deliberated in private on 3 July 2018 ,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1 . The case originated in an application (no. 28338/07) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Ömer Güner (“the applicant”), on 26 June 2007 .

2 . The applicant was represented by Mr Ç. Bingölbalı, a lawyer practising in İ zmir . The Turkish Government (“the Government”) were represented by their Agent .

3 . The applicant alleged , in particular, that he had been denied a fair trial in that he had been deprived of legal assistance and convicted on the basis of evidence taken under duress and in the absence of a lawyer , including his own statements given during the preliminary investigation stage . He further alleged that the fact that part of his conviction had allegedly rested on the periodicals found in his possession had violated his rights under Article 10 of the Convention.

4 . On 28 May 2014 the Government w ere informed of the above complaints and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court .

5 . On 17 February 2017 the Vice-President of the Second Section invited the Government to submit further observations, if they so wished, following the judgment in Ibrahim and Others v. the United Kingdom ([GC], nos. 50541/08 and 3 others, ECHR 2016).

6 . The Government objected to the examination of the application by a Committee.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

7 . The applicant was born in 1969 and lives in Ayd ı n .

8 . At t he material time, the applicant was the manager of a hotel in Kuşadası.

9 . On 10 July 2002 at 4.50 a.m. the applicant was arrested by police officers from the counter-t erroris m unit of the İzmir Security Directorate in connection with an operation conducted against an illegal organisation, namely the Bolşevik Parti – Kuzey Kürdistan / Turkiye (Bolshevik Party – North Kurdistan/Turkey). According to the arrest report, which was signed by the applicant, the police found eighty-eight left-wing books and periodicals in his room . Th o se books were seized by the police with a view to ascertain ing whether they were illegal.

10 . On 11 July 2002 at approximately 2.15 a.m. the applicant took part in an identity parade in the absence of a lawyer. The applicant identified another co-accused, a certain M.B. , and stated that he had allowed him to stay in his hotel free of charge without registering him in the hotel ’ s guestbook.

11 . On the same day at 1.10 p.m. the applicant was interviewed by the police in the absence of a lawyer. The applicant was asked, inter alia , what his ideology was , for how long he had been reading the periodical Çağrı that had been found and seized in his place of work , and which other meetings or demonstrations – held within a democratic platform – he had participated in . Th e applicant explained that he regularly bought the periodical Çağrı from a newspaper kiosk and enj oyed reading it. This periodical , which was sold legally, was supportive of leftist ideas. He also stated that he was friends with M ehmet D esde (who was the applicant in Desde v. Turkey , no. 23909/03 , 1 February 2011) and E.Y., whom he had met when he had been in Germany. The applicant had allowed them to stay in his hotel and use his car when they had needed a vehicle. The applicant a dmitted that he had expressed his wish to be involved in the activities of the Bolshevik Party, but M ehmet D esde , who had connections in the organisation, had never replied to him.

12 . On 13 July 2002 the applicant was questioned by the public prosecutor again in the absence of a lawyer. He admitted to having len t his car to M ehmet D esde and to having provid ed him with accommodation in his hotel. However, he denied any affiliation with the illegal organisation. Following his questioning , the applicant was released.

13 . Although Mehmet Desde used his right to remain silent before the police, he made statements before the public prosecutor in the absence of a lawyer , where he stated that he had stayed in the applicant ’ s hotel for two days and had borrowed the applicant ’ s car.

14 . On 6 September 2002 the public prosecutor at the İzmir State Security Court lodged a bill of indictment against the applicant together with nine other co-accused . The prosec utor charged the applicant with aiding and abetting an illegal organi s ation , Bolşevik Parti – Kuzey Kürdistan/Türkiye – , under Article 169 of the Criminal Code and section 5 of the Prevention of Terrorism Act as in force at the material time .

15 . On 24 October 2002 , at the first hearing in the case, the applicant, who was represented by a lawyer, denied the charges against him. He maintained that he had not been involved in any illegal activity . He further stated that Mehmet Desde, E.Y. and M.B. had come to his hotel as guests and that they had not gather ed with an ulterior motive. The applicant also stated that he had lent his car to Mehmet Desde and M.B. when they had told him that they w anted to drive to another coastal town. When asked about his statements before the police, the applicant deni ed them, alleging that they had been obtained through coercion and torture by the police as a result of which he had been pressured to sign his statement. At the end of that hearing, the trial court asked the applicant to make additional defence submissions given that h is actions might be reclassified as assisting members of a terrorist organisation under s ection 7 ( 1 ) and ( 2 ) of Law no. 3713. He reiterated his previous defence submissions.

16 . At the hearing held on 24 July 2003 , the applicant made his defence submissions in relation to the merits of the case and denied the allegations against him. He further stated that his only mistake had been not registering Mehmet Desde and M.B. in his hotel ’ s guestbook. At the same hearing the İzmir State Security Court convicted the appli cant of aiding and abetting a terrorist organisation under s ection 7 ( 2 ) of Law no. 3713 as then in force and sentenced him to ten months ’ imprisonment and a fine. Having regard , inter alia , to the statements of the applicant as well as of the other co-accused , the “written evidence” and the content of the case file as a whole, the trial court concluded that the applicant had committed t h e offence of aiding and abetting a terrorist organi s ation by allowing the other co-accused, namely Mehmet Desde, E.Y. and M.B. , to stay in his hotel without registering them in his hotel ’ s guestbook and by lending his car to those people. Furthermore, the trial court listed the periodicals found in the applicant ’ s possession as evidence in the “ written evi dence” part of its judgment.

17 . On 8 April 2004 the Court of Cassation quashed the judgment, holding that in rendering its judgment the first- instance court should have taken into account the recent amendments made to s ection 7 of Law no. 3713.

18 . In the meantime, pursuant to Law no. 5190 of 16 June 2004, published in the Official Gazette on 30 June 2004, State Security Courts were abolished. The case against the applicant was therefore transferred to the Ä°zmir Assize Court.

19 . On 12 October 2004 the İzmir Assize Court convicted the applicant once again under s ection 7 ( 2 ) of Law no. 3713 as then in force and sentenced him to ten months ’ imprisonment and a fine. Having regard, inter alia , to the statements of the applicant as well as of the other co-accused, the “written evidence” and the content of the case file as a whole, i t held that the applicant had committed the offence of aiding and abetting a terrorist organi s ation by allowing the other co-accused, namely Mehmet Desde, E.Y. and M.B. , to stay in his hotel without registering them in his hotel ’ s guestbook and by lending his car to those people. I t listed the periodicals found in the applicant ’ s possession as evidence in the “written evidence” part of its judgment.

20 . On 13 December 2004 the applicant appealed.

21 . While the appeal proceedings were pending before the Court of Cassation, in 2005 the new Criminal Code of Criminal Procedure came into force. By a decision dated 10 November 2005, the Principal Public Prosecutor at the Court of Cassation sent the case file back to the first ‑ instance court and requested that the latter reconsider the case in the light of the amendments made to the Code of Criminal Procedure. The case was accordingly transferred back to the Ä°zmir Assize Court.

22 . The p ublic p rosecutor before the İzmir Assize Court submitted his opinion on the merits of the case and requested the acquittal of the applicant and his co-accused on the grounds that the organisation which they had allegedly founded did not correspond to the definition of a terrorist organisation under section 7 (1) of Law no. 3713. Consequently, he considered that the applicant ’ s acts could not be characterised as aiding and abetting an illegal organisation under section 7 (2) of the same Law.

23 . On 16 March 2006 the İzmir Assize Court convicted the applicant and sentenced him to ten months ’ imprisonment and a fine under section 7(2) of Law no. 3713 as then in force. Having considered the structure, methods, purpose and activities of the said organisation, the court concluded that it could be categorised as a terrorist organisation, contrary to the submissions of the accused and the public prosecutor in charge of the investigation. It noted that even though the members of the organisation had not resorted to physical violence, they had used “psychological duress” ( manevi cebir ), such as issuing threats, in order to achieve their aims. The trial court considered that the aim of the organisation was to start an uprising with a view to replacing the democratic regime with a totalitarian Marxist and Leninist regime. Thus, the fact that the organisation in question had not resorted to violence was not considered problem atic with regard to categorising it as a terrorist organisation. It went on to state that the periodicals Çağrı and Güney had been the legal media outlet s of the organisation.

The trial court further held that the applicant had admitted to the allegations in his statements to the police. Moreover , h aving regard, inter alia , to the statements of the applicant as well as of the other co-accused persons, the “written evidence” and the content of the case file as a whole, it held that the applicant had committed the offence of aiding and abetting a terrorist organis ation by allowing the other co-accused persons, namely Mehmet Desde, E.Y. and M.B. , to stay in his hotel without registering them in his hotel ’ s guestbook. Again, it listed the periodicals found in the applicant ’ s possession as evidence in the “written evidence” part of its judgment.

24 . On 23 March 2006 the applicant appealed against the judgment .

25 . On 5 October 2006 the Principal Public Prosecutor at the Court of Cassation lodged a written opinion with the Ninth Division of the Court of Cassation in which he submitted, inter alia, that the objections of the lawyers concerning the use of police statements to convict the co-defendants should be rejected as irrelevant and unsubstantiated. However, the Principal Public Prosecutor also submitted that the Division should quash the judgment of the Ä°zmir State Security Court on account of the legislative amendments to Law no. 3713.

26 . On 25 December 2006 the Court of Cassation upheld the judgment of 16 March 2006 stating that the lawyers ’ objections in respect of t he applicant and two other co- defendant s were irrelevant and unsubstantiated. The applicant maintains that he only became aware of the judgment in April 2007. There is nothing in the case file to indicate that the applicant became aware of the judgment on the date of delivery.

II. RELEVANT DOMESTIC LAW

27 . 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).

28 . On 15 July 2003 Law no. 4928 repealed s ection 31 of Law no. 3842 . T he restriction on an accused ’ s right of access to a lawyer in proceedings before the State Security Courts was thus lifted.

THE LAW

I . ALLEGED VIOLATION OF ARTICLE 6 §§ 1 and 3 (c) OF THE CONVENTION

29 . The applicant alleged that he had been denied legal assistance during the preliminary investigation stage. He further alleged that he had been convicted on the basis of statements taken under duress and in the absence of a lawye r , including his own statements given during the preliminary investigation stage.

30 . The Court decides to examine the complaint under Article 6 §§ 1 and 3 (c) of the Convention, the relevant parts of which provide:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... 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;

...”

31 . The Government contested th e applicant ’ s claim s .

32 . The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

33 . The applicant alleged that he had been deprived of legal assistance during the preliminary investigation stage and that his statements taken in the absence of a lawyer had been used by the trial court to convict him. The applicant further complained that Mehmet Desde ’ s statements allegedly taken under duress and in the absence of a lawyer had formed part of the evidence on which the court had based its judgment .

34 . As concerns the applicant ’ s first contention, r eferring to the Court ’ s judgment in the case of Salduz v. Turkey ([GC], no. 36391/02, ECHR 2008) , the Government submitted that they were aware of the Court ’ s case-law under Article 6 § 3 (c) of the Convention.

35 . As regards the applicant ’ s second contention, the Government maintained that in the absence of a medical report, it could not be proven beyond reasonable doubt that Mehmet Desde ’ s statements had been taken under duress. The Government further indicated that Mehmet Desde had not given any statement to the police and had exercised his right to remain silent . Moreover, Mehmet Desde had at no time throughout the proceedings made any statement directly targeting or accusing the applicant. That is why the domestic court also had not rel ied on Mehmet Desde ’ s statements when convicting the applicant. Lastly, the Government submitted that the applicant had not raise d any objection to Mehmet Desde ’ s statement s either dur ing the proceedings before the trial court or in his appeal application . Accordingly , they invited the Court to either reject the applicant ’ s complaint or to hold that there had been no violation on that basis.

36 . The Court notes at the outset that the applicant ’ s access to a lawyer was restricted by virtue of Law n o. 3842 and was as such a systemic restriction applicable at the time of the applicant ’ s arrest ( see Salduz , cited above, § 56). The Court does not consider it necessary to examine whether the systematic 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, as, in any event, the Government have not offered any compelling reasons for the restriction or demonstrated that the absence of legal assistance at the initial stage of the investigation did not irretrievably prejudice the applicant ’ s defence rights ( ibid. , § 58 , and see Ibrahim and Others v. the United Kingdom ([GC], nos. 50541/08 and 3 others , § 274 , ECHR 2016 ) . In that connection , the Court notes that i n convicting him, the first-instance court relied on the applicant ’ s statements to the police. Moreover, it did not examine the admissibility of evidence at the trial. Likewise, the Court of Cassation dealt with this issue in a formalistic manner and failed to remedy this shortcoming (see Bayram Koç v. Turkey , no. 38907/09 , § 23, 5 September 2017) .

40 . Accordingly, the Court finds that the procedural safeguards provided for in Turkish law did not operate in the present case to prevent the use of the statements obtained in the absence of a lawyer.

II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION

42 . The applicant complained that his conviction, to the extent that it had been based on the legal books and periodicals found in his possession , had violated his right to freedom of expression .

43 . The Government submitted that the sentences imposed on the applicant had had a legal basis, specifically section 7 ( 2 ) of Law no. 3713. The interference had pursued legitimate aims within the meaning of Article 10 § 2 of the Convention, namely the protection of national security, territorial integrity or public safety and the prevention of disorder and crime. According to the Government, the domestic courts referred to “the list of confiscated books and periodicals which were in the possession of the accused Ömer Güner” . Having regard to the particular circumstances of the case, they left the final assessment in respect of the necessity of the interference to the discretion of the Court.

44 . The Court considers that this complaint is admissible. However, having regard to the facts of the case and its finding of a violation of Article 6 § § 1 and 3 (c) of the Convention above , the Court considers that it has examined the main legal question raised in the present application. It concludes therefore that there is no need to give a separate ruling on the applicant ’ s complaint under Article 10 of the Convention (see , mutatis mutandis , Seyithan Demir v. Turkey , no. 25381/02 , § 47, 28 July 2009) .

III . APPLICATION OF ARTICLE 41 OF THE CONVENTION

45 . Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

46 . The applicant claimed 4,000 euros (EUR) in respect of pecuniary damage , the amount being the value of his car that had been confiscated in the course of the criminal proceedings. He further claimed EUR 50,000 in respect of non-pecuniary damage , submitting that he had been forced to shut down his hotel as a result having been portrayed as a criminal by the press.

47 . The Government contested those claims , submitting that they were excessive.

48 . The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. As for the non-pecuniary damage, the Court considers that the most appropriate form of redress would be the retrial of the applicant in accordance with the requirements of Article 6 of the Convention, should he so request (see Salduz , cited above, § 72). It further considers that the finding of a violation constitutes sufficient just satisfaction (see Dvorski v. Croatia [GC], no. 25703/11, § 117, ECHR 2015) in respect of non-pecuniary damage. It therefore rejects the applicant ’ s claim.

B. Costs and expenses

49 . The applicant also claimed EUR 31 for translation costs incurred before the Court. In support of that claim, the applicant submitted an invoice for translation.

50 . The Government pointed out that the applicant had failed to provide any document s in support of his claim under this heading.

51 . According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria , the Court considers it reasonable to award the sum claimed in full.

C. Default interest

52 . The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT , UNANIMOUSLY,

1. Declares the application admissible ;

2 . Holds that there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention;

3 . Holds that there is no need to examine the complaint under Article 10 of the Convention;

4 . Holds that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant;

5 . Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 31 (thirty-one euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be converted into the currency of the respondent State at the rate applicable at the date of settlement ;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

6 . Dismisses the remainder of the applicant ’ s claim for just satisfaction.

Done in English, and notified in writing on 4 September 2018 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Hasan Bak ırcı Robert Spano              Deputy Registrar Pr e sident