SECOND SECTION

CASE OF GÜRBÜZ AND ÖZÇELİK v. TURKEY

(Application no. 11/05 )

JUDGMENT

STRASBOURG

2 Febru ary 2016

This judgment is final . It may be subject to editorial revision.

In the case of Gürbüz and Özçelik v. Turkey ,

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

Ksenija Turković , President, Jon Fridrik Kjølbro, Georges Ravarani, judges , and Abel Campos, Deputy Section Registrar ,

Having deliberated in private on 12 January 2016 ,

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

PROCEDURE

1 . The case originated in an application (no. 11/05) 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 two Turkish nationals, Mr Özgür Gürbüz and Mr Müslüm Özçelik (“the applicants”), on 19 October 2004.

2 . The applicants were represented by Ms H. Çekiç , a lawyer practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent.

3 . On 25 November 2010 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4 . The applicants were born in 1975 and 1976 respectively and are currently serving their prison sentence in the TekirdaÄŸ Prison.

5 . On 13 April 1998 the applicants were arrested on suspicion of membership of an illegal organisation. On 14 and 16 April 1998 respectively, the first applicant gave detailed police statements in the absence of a lawyer. On 15 April 1998, the second applicant was also interrogated by the police in the absence of a lawyer, and he used his right to remain silent.

6 . On 19 April 1998 both applicants were examined at the Istanbul Forensic Medicine Institute. According to the medical report, there was no trace of ill-treatment on their bodies.

7 . On the same day, still in the absence of a lawyer, the applicants were brought before the public prosecutor and subsequently the investigating judge. Before the public prosecutor and the investigating judge, both applicants gave statements, and the second applicant complained that he had been ill-treated in police custody. The investigating judge remanded the applicants in custody.

8 . On 30 April 1998 the Public Prosecutor at the Istanbul State Security Court filed an indictment with that court and accused the applicants of carrying out activities for the purpose of bringing about the secession of part of the national territory. He sought the death penalty under Article 125 of the Criminal Code.

9 . On 4 May 1998 the Istanbul State Security Court held a preparatory hearing. It decided that the applicants ’ detention on remand should be continued. Between 6 July 1998 and 26 May 1999 the Istanbul State Security Court, composed of two civilian judges and a military judge, held seven more hearings. On 18 June 1999 the constitution was amended and the military judge sitting on the bench of the Istanbul State Security Court was replaced by a civilian judge. Thereafter, the court held twenty more hearings. During the hearings, the applicants alleged that they were ill-treated under police custody.

10 . On 24 September 2003 the Istanbul State Security Court, which was composed of three civilian judges, found the applicants guilty as charged and sentenced them to life imprisonment under Article 125 of the Criminal Code. In convicting the applicants, the State Security Court had regard to the applicants ’ statements to the police, the public prosecutor and the investigating judge respectively.

11 . On 24 March 2004 the Court of Cassation upheld the judgment of the Istanbul State Security Court. This decision was deposited with the Registry of the first instance court on 22 April 2004.

II. RELEVANT DOMESTIC LAW

12 . The relevant domestic law and practice in force at the material time can be found in Salduz v. Turkey ([GC], no. 36391/02, §§ 27-44, 27 November 2008).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

13 . T he applicants alleged that their defence rights had been violated as they had been denied legal assistance during their police custody and that their statements, given in the absence of a lawyer, had been used in their conviction by the trial court. They further complained that the length of the criminal proceedings against them had been incompatible with the “reasonable time” requirement. In this connecti on, they relied on Article 6 §§ 1, 2 and 3 (b), (c), and (d) of the Convention.

14 . The relevant provisions, in so far as relevant, read:

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

A. Legal assistance during police custody

15 . At the outset the Court notes that this part of the application should be examined solely from the standpoint of Article 6 § 3 (c) of the Convention in conjunction with Article 6 § 1. Furthermore, 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.

16 . In so far as the applicants argued that they had been denied legal assistance during their police custody, the Court recalls that at the material time, the restriction imposed on the applicants ’ right to legal assistance was systemic and applied to anyone held in custody in connection with an offence falling under the jurisdiction of the State security courts (see Salduz v. Turkey [GC], no . 36391/02, §§ 56-63, ECHR 2008, and Dayanan v. Turkey , no. 7377/03, §§ 30-34, 13 October 2009). The Court has examined the present case and finds no particular circumstances which would require it to depart from its findings in the aforementioned Salduz judgment.

17 . There has therefore been a violation of Article 6 § 3 (c) of the Convention in conjunction with Article 6 § 1 in the present case.

B. Length of proceedings

18 . The applicants complained under Articles 6 § 1 of the Convention that the length of the criminal proceedings against them had been incompatible with the “reasonable time” requirement.

1. Admissibility

19 . The Court observes, at the outset, that a new domestic remedy has been established in Turkey since the application of the pilot judgment procedure in the case of Ümmühan Kaplan v. Turkey (no. 24240/07, 20 March 2012). The Court observes that in its decision in the case of Turgut and Others v. Turke y (no. 4860/09, 26 March 2013), it declared a new application inadmissible on the ground that the applicants had failed to exhaust the domestic remedies, as a new domestic remedy had been set up. In so doing, the Court in particular considered that this new remedy was, a priori, accessible and capable of offering a reasonable prospect of redress for complaints concerning the length of proceedings.

20 . The Court further notes that in its decision in the case of Ümmühan Kaplan (cited above, § 77) it stressed that it could pursue the examination of applications of this type which have already been communicated to the Government. It further notes that in the present case the Government did not raise an objection in respect of the new domestic remedy.

21 . In view of the above, the Court decides to pursue the examination of the present application. However, it notes that this conclusion is without prejudice to an exception that may ultimately be raised by the Government in the context of other communicated applications (see İbrahim Güler v. Turkey , no. 1942/08 , § 39, 15 October 2013, and Hasan Yazıcı v. Turkey , no. 40877/07, §§ 71-75, 15 April 2014).

22 . 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.

2. Merits

23 . The applicants submitted under Article 6 § 1 of the Convention that the criminal proceedings brought against them had not been concluded within a reasonable time.

24 . The Court notes that the criminal proceedings in question commenced on 13 April 1998 when the applicants were taken into police custody, and ended on 15 March 2004 when the Court of Cassation delivered its final decision. They thus lasted five years and eleven months before two levels of jurisdiction.

25 . Having examined all the material submitted to it, the Court considers that the length of the proceedings was excessive and failed to meet the “reasonable time” requirement ( Daneshpayeh v. Turkey , no. 21086/04, § 28, 16 July 2009 , and Yer and Güngör v. Turkey , no. 21521/06 and 48581/07, § 20, 7 December 2010).

26 . There has accordingly been a breach of Article 6 § 1 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

27 . The applicants complained under Article 13 of the Convention that there was no effective remedy under Turkish law whereby they could have contested the length of the proceedings brought against them.

“Everyone whose rights and freedoms as set forth in the Convention are violated shall have an effective remedy before a national authority...”

A. Admissibility

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

B. Merits

29 . The Court has examined similar issues in previous applications and has found violations of Article 13 of the Convention in respect of the lack of an effective remedy under Turkish law whereby the applicants could have contested the length of the proceedings at issue (see Daneshpayeh , cited above, §§ 35-38; Ümmühan Kaplan , cited above, §§ 56-58; and Beşerler Yapı San. ve Tic. A.Ş. v. Turkey [Committee], no. 14697/07, §§ 12-26, 24 September 2013). It finds no reason to depart from that conclusion in the present case.

30 . The Court accordingly concludes that there has been a violation of Article 13 of the Convention.

III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

31 . The applicants complained under Article 3 of the Convention that they were ill-treated under police custody. They further complained under Article 5 § 3 of the Convention about the excessive length of their police custody and subsequent detention on remand. They also submitted that they were denied a fair hearing by an independent and impartial tribunal on account of the presence of a military judge on the bench of the Istanbul State Security Court which tried them. Lastly, they referred to the different procedural rules applied before state security courts and ordinary criminal courts and invoked a violation of Article 14 of the Convention.

32 . Having considered the applicant ’ s submissions in the light of all the material in its possession, the Court finds that, in so far as the matters complained of are within its competence, they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

33 . It follows that this part of the application must be declared inadmissible as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

34 . The applicants each claimed 10,000 euros (EUR) in compensation for pecuniary damage and EUR 20,000 in compensation for non-pecuniary damage. They further claimed a total of EUR 2,800 for legal fees and 380 Turkish liras (TRY) for costs and expenses. In connection with their claims, they did not submit any invoice but referred to the Turkish Bar Association ’ s list of recommended minimum fees.

35 . The Government contested the claims.

36 . The Court does not discern any causal link between the violations found and the pecuniary damage alleged; it therefore rejects this claim. However, it considers that the applicants must have suffered some non-pecuniary damage and taking into account the circumstances of the present case and ruling on an equitable basis, it awards them each EUR 2,600 in respect of non-pecuniary damage.

37 . As regards costs and expenses, the Court reiterates that 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 were reasonable as to quantum. In the present case, the applicants have not demonstrated that they actually incurred the costs claimed. In particular, they have failed to submit documentary evidence, such as bills, receipts, a legal fee agreement, or a breakdown of the hours spent by their lawyer on the case. Accordingly, the Court makes no award under this head.

38 . 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 complaints concerning the applicants ’ right to legal assistance during their police custody, their right to be tried within a reasonable time and the lack of an effective remedy in that respect admissible and the remainder of the application inadmissible;

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

3. Holds that there has been a violation of Article 6 § 1 of the Convention on account of the excessive length of the criminal proceedings ;

4. Holds that there has been a violation of Article 13 of the Convention;

5. Holds

(a) that the respondent State is to pay each of the applicants, within three months, EUR 2,600 (two thousand six hundred euros), plus any tax that may be chargeable in respect of non-pecuniary damage, 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 applicants ’ claim for just satisfaction.

Done in English, and notified in writing on 2 February 2016 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Abel Campos Ksenija Turković Deputy Registrar President