SECOND SECTION

CASE OF HAYRETTÄ°N DEMÄ°R v. TURKEY

( Application no. 2091/07 )

JUDGMENT

STRASBOURG

24 July 2012

This judgment is final but it may be subject to editorial revision.

In the case of Hayrettin Demir v. Turkey ,

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

Isabelle Berro-Lefèvre , President, Guido Raimondi , Helen Keller , judges, and Françoise Elens-Passos , Deputy Section Registrar ,

Having deliberated in private on 3 July 2012 ,

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

PROCEDURE

1 . The case originated in an application (no. 2091/07) 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 Hayrettin Demir (“the applicant”), on 28 December 2006 .

2 . The applicant was represented by Mr M. Özbekli, a lawyer practising in Diyarbak ı r . The Turkish Government (“the Government”) were represented by their Agent .

3 . On 3 February 2010 the application was communicated to the Government .

4 . As the issues raised in this application are the subject of well-established case-law of the Court, the Court decided to assign the application to a Committee of three judges.

THE FACTS

THE CIRCUMSTANCES OF THE CASE

5 . The applic ant, Mr Hayrettin Demir, is a Turkish national who was born in 1971 and is currently detained in Diyarbakı r prison .

6 . On 8 March 1995 the applicant and a number of suspects were arrested in the context of an operation led by security forces in Mardin on suspicion of membership of Hizbullah , an illegal organisation. Prior to being taken into police custody, t he applicant was examined by a doctor who observed no sign of ill ‑ treatment on his person.

7 . T he applicant alleges that during his questioning by the police he was tortured and compelled to sign incriminating statements in the absence of a lawyer .

8 . On 4 April 1995 the applicant was examined by a doctor who found no injuries on his person.

9 . On 5 April 1995 the applicant was taken to the public prosecutor and the investigating judge , before whom he alleg ed that he had been ill-treated while in police custody. He claimed that he had been h u ng by his arms, given electric shocks and beaten by police officers. Later o n the same day , the investigating judge placed the applicant in pre-trial detention.

10 . On 11 April 1995 the applicant and twelve co-suspects , arrested in the same security operation conducted against Hizbullah , lodged a complaint with the Mardin public prosecutor, alleging that they had been ill-treated in police custody .

11 . On the applicant ’ s request to the prison authorities to obtain anothe r medical examination, o n 12 April 1995 he was examined by a doctor in a public health clinic , who observed bruises o n the inner part of the applicant ’ s lower arms , between his wrists and elbows .

12 . The public prosecutor took statements in respect of the allegation of torture from a number of suspected police officers, who denied the accusations. T hey maintained that the bruises o n the applicant ’ s arms , which were detected in a medical report obtained later , must have been caused after his release from poli ce custody .

13 . On 30 May 1995 the Mardin public prosecutor refused to commit the police officers for trial, taking into account the medical reports drafted at the beginning and end of the applicant ’ s detention in police custody, which had recorded no injuries o n his body. In this regard, t he prosecutor found that the applicant ’ s allegation of having been ill-treated in police custody was unsubstantiated. This decision was notified to the applicant on 13 July 1995.

14 . In the meantime, on 23 May 1995, the public prosecutor at the Diyarbakır State Security Court filed a bill of indictment against the applicant and twenty-four other persons , charging them with the membership of an illegal organisation and involvement in a number of illegal activities on be half of the organisation , such as murder, assault and arson .

15 . On 18 June 1999 the Constitution was amended and the military judge sitting on the bench of the Diyarbakır State Security Court was replaced by a civilian judge.

16 . Following the entry into force of Law no. 5190 of 16 June 2004, the criminal proceedings w ere transferred to the Diyarbakır Assize Court .

17 . During the proceedings the Diyarbakır Assize Court reviewed the lawfulness of the applicant ’ s detention on a regular basis in accordance with Article 108 of Law no. 5271 and found that his pre-trial detention should be continued on account of the severity of the offences, the reasonable grounds of suspicion that he had committed those with which he was charged, and the state of the evidence in the case file.

18 . On the basis of the range of evidence, namely confiscated documents of the illegal organisation , ballistic and autopsy reports, statements taken before the police, public prosecutor and judges, the medical reports drawn up at the beginning and end of police custody, statements taken during the trial from witnesses and other co-accused, o n 31 March 2005 the Diyarbakır Assize Court established that the applicant, as a member of Hizbullah, had been involved in a number of terrorist activities, including the murder of numerous people . Subsequently, the trial court convicted the applicant of attempting to undermine the constitutional order of the S tate , as proscribed by Article 146 § 1 of the former Criminal Code, and sentenced him to life imprisonment.

19 . On 1 June 2005 the new Criminal Code entered into force.

20 . On 11 December 2006 the Court of Cassation quashed the judgment, holding that it should be revised in the light of the provisions of the new Criminal Code.

21 . On 9 November 2007 the first-instance court once more convicted the applicant under Article 146 of the former Criminal Code and sentenced him to life imprisonment.

22 . On 19 January 2009 the Court of Cassation upheld that judgment.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

23 . The applicant complained that he had been subjected to ill-treatment while held in police custody, in breach of Article 3 of the Convention, which reads as follows:

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

24 . The Government argued under Article 35 § 1 of the Convention that this part of the application should be rejected for non-exhaustion of domestic remedies or, alternatively, for failure to comply with the six-month rule. They claimed that the applicant had not availed himself of the domestic remedy provided under Article 165 of the Code of Criminal Procedure and had failed to lodge an objection against the public prosecutor ’ s decision of non-prosecution with an assize court. The Government deni ed the applicant ’ s allegation that he had not been notified of t he public prosecutor ’ s decision of 30 May 1995 refusing to bring a criminal prosecution against the police officers. In this connection, they submitted the document of notification , provi ng that the public prosecutor ’ s decision of 30 May 1995 had been served on the applicant on 13 July 1995.

25 . The applicant did not make any comments on the Government ’ s arguments.

26 . The Court observes that upon the criminal complaint lodged by the applicant and twelve other co-suspects arrested in the same security operation , the public prosecutor carried out an inv estigation into the allegation s of ill-treatment in police custody and took the statements of the suspected police officers , who denied the allegations against them. Relying on the medical reports drawn up at the beginning and end of the applicant ’ s police custody , record ing no injuries on his person, on 30 May 1995 the public prosecutor held that there was no decisive evidence demonstrating that the police officers had committed the offence concerned and decided therefore not to commit th em f o r trial . This decision was notified to the applicant on 13 July 1995 . H owever, he did not file an objection against this decision with an assize court.

27 . The Court further obs erves that the applicant did not dispute the effectiveness of the domestic remedy of lodging an objection against the public prosecutor ’ s decision not to prosecute with an assize court , as provided under Article 165 of the Code of Criminal Procedure . Nor did he claim that such an appeal would have been devoid of any chance of success.

28 . The Court notes in this context that there are precedents indicating that appeals against decisions of public prosecutors not to prosecute have been successful , and subsequently criminal prosecutions were brought against suspected police officers (see, mutatis mutandis , Epözdemir v. Turkey (dec.), no. 57039/00, 31 January 2002, Fidan v. Turkey (dec), no. 24209/94, 29 February 2000).

29 . Consequently, the Court finds that, in the circumstances of this case, the applicant cannot be considered as having complied with the exhaustion of domestic remedies rule laid down in Article 35 § 1 of the Convention. The applicant ’ s complaint under Article 3 of the Convention must therefore be declared inadmissible and rejected pursuant to Article 35 § 4 of the Convention (see Sara ç v. Turkey (dec.), no.35841/97, ECHR) .

I I . ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION

30 . Without relying on any Article of the Convention, the applicant complained that the length of his pre-trial detention had been excessive.

31 . The Court will examine the issue under Article 5 § 3 of the Convention, which reads as follows:

“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”

32 . The Government contested the applicant ’ s argument.

33 . The Court notes that this complaint is admissible, as no ground for declaring it inadmissible has been established.

34 . As regards the merits of the complaint, the Government submitted that the applicant ’ s detention had been based on the existence of reasonable grounds of suspicion that he had been involved in an illegal organisation. Having regard to the seriousness of the offence and the risk of absconding , there was a genuine requirement of public interest for the detention of the applicant during the trial .

35 . The Court observes that the applicant ’ s pre-trial detention started on 8 March 1995 with his arrest and ended on 9 November 2007 with his conviction by the Diyarbakır Assize Court . After deducting the period when the applicant was detained after conviction in accordance with Article 5 § 1 (a) of the Convention (namely the period between 31 March 2005 and 11 December 2006 ) from the total time of the applicant ’ s detention, the period that the applicant was held in pre-trial detention lasted for ten years and eleven months (see Solmaz v. Turkey, no. 27561/02, §§ 36-37, 16 January 2007).

36 . The Court has frequently found violations of Article 5 § 3 of the Convention in cases disclosing comparable lengthy periods of pre-trial detention (see, for example, Tutar v. Turkey , no. 11798/03, § 20, 10 October 2006, and Cahit Demirel v. Turkey , no. 18623/03, § 28, 7 July 2009). Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, the Court finds that in the instant case the length of the applicant ’ s pre-trial detention was excessive.

37 . There has accordingly been a violation of Ar ticle 5 § 3 of the Convention.

I II . ALLEGED VIOLATION S OF ARTICLE 6 OF THE CONVENTION

1 . Fairness of the criminal proceedings

38 . The applicant complained under Article 6 § 1 of the Convention that he had been denied a fair hearing as a result of the domestic courts ’ reliance on statements obtained from him under duress and in the absence of a lawyer in police custody.

39 . The Court finds it appropriate to examine these complaints under Article 6 §§ 1 and 3 (c) of the Convention, which reads:

“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.”

40 . The Government contested the allegations , arguing that the applicant ’ s conviction was not based only on his statement taken in police custody and that the authorities fully complied with the domestic legislation, which was in force at the time, during the applicant ’ s apprehension and interrogation in police custody .

41 . The Court considers that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not in admissible on any other grounds and must therefore be declared admissible.

42 . The Court has already held that the use of evidence obtained in violation of Article 3 in criminal proceedings could infringe the fairness of such proceedings, even if the admission of such evidence was not decisive in securing the conviction ( see Jalloh v. Germany [GC], no. 54810/00, § 9 9 , ECHR 2006 ‑ IX , and Söylemez v. Turkey , no. 46661/99, § 23, 21 September 2006). It has further held that the absence of an Article 3 complaint does not preclude the Court from taking into consideration the applicant ’ s allegations of ill-treatment for the purpose of determining compliance with the guarantees of Article 6 (see Örs and Others v. Turkey , no. 46213/99, § 60, 20 June 2006, and Kolu v. Turkey , no. 35811/97, § 54, 2 August 2005).

43 . Furthermore, t he Court reiterates that allegations of ill-treatment must be supported by appropriate evidence (see, in particular, Tanrıkulu and Others v. Turkey (dec.), 45907/99, 22 October 2002). In assessing such evidence, the Court has generally applied the standard of proof “beyond reasonable doubt” (see AvÅŸar v. Turkey , no. 25657/94, § 282 , ECHR 2001 ‑ VII (extracts) ). Such proof may, however, follow from the coexistence of sufficiently strong, clear and concordant inf erences or of similar unrebutted presumptions of fact (see Ireland v. the United Kingdom , judgment of 18 January 1978, § 161, Series A no. 25).

44 . The Court observes that in the pre sent case , the applicant claimed that he had been h u ng by his arms, given electric shocks and beaten by the police during his detention in police custody. H owever, t he medical reports drawn up at the beginning and end of the applicant ’ s detention in polic e custody recorded no injuries o n his body.

45 . The applicant lodged a criminal complaint with the Mardin p ublic prosecutor against the police officers and obtained a new medical report issu ed on 12 April 1995 , according to which he had sustained bruises in the inner part of his lower arms. During the criminal investigation , the police officers challenged the alleged ca us al link between the bruises observed and the applicant ’ s treatment in police custody , claiming that the applicant must have sustained those after his release from the police custody .

46 . Relying on the medical report which had mentioned no injuries on the ap plicant ’ s person at the time he was release d from police custody, o n 13 July 1995 the Mardin public prosecutor rejected the applicant ’ s allegation of torture as being unsubstantiated and subsequently decided not to commi t the police officers f o r trial . Th e appl icant did not appeal against this decision .

47 . The Court notes that the applicant ’ s complaint raised under Article 3 of the Convention i s to be declared inadmissible for non-exhaustion of dom estic remedies (see paragraph 29 above). R egarding the applicant ’ s contention that he was tortured in police custody, the Court observe s that this complaint was examined by the Mardin public prosecutor , but was found to be unsubstantiated. Similarly, the Court observes that the findings of the medical report drawn up on 12 April 1995, seven days after his release from police custody, does not fully corroborate or correspond to the applicant ’ s allegation s. In this regard, the Court observes that it has not been proved beyond reasonable doubt that the applicant ’ s police statements, which were relied on by the trial court, were obtained through ill-treatment as alleged by the applicant.

48 . T he Court observes that p rior to the trial the applicant had made incriminating submissions before the police in the abs ence of a lawyer (see paragraph 7 above). Since, on the basis of the case file, it cannot be concluded beyond reas onable doubt that the applicant was su bjected to ill-treatment or was otherwise coerced into making statements in police custody, the Court considers that the examination of this part of the application should be confined to the use by the trial court of the statements made at the pre ‑ trial stage in the absence of a lawyer (see Taşçıgil v. Turkey , no. 16943/03, § 35, 3 March 2009).

49 . T he Court notes that it is not in dispute between the parties that the applicant was denied legal assistance during the custody period. The restriction imposed on the applicant ’ s right of access to a lawyer was systemic and applied to anyone held in custody in connection with an offence falling under the jurisdiction of the S tate S ecurity C ourts (see Salduz v. Turkey , [GC], no. 36391/02, § 6 1 , 27 November 2008 ) .

50 . In this connection, the Court recalls that i n order for the right to a fair hearing to remain sufficiently “practical and effective”, Article 6 § 1 requires, as a rule, access to a lawyer as from the first interrogation of a suspect by the police, unless it is demonstrated in the specific circumstances of the particular case that there are compelling reasons to restrict this right. Having regard to the foregoing, the Court concludes that even though the applicant had the opportunity to challenge the evidence against him at trial and subsequently on appeal, the denial of legal assistance to the applicant while he was in police custody irre med i a bly affected his defence rights.

51 . In view of th i s , the Court holds that there has been a violation of Article 6 § 3 (c) of the Convention in conjunction with Article 6 § 1 in the present case.

2 . Length of the criminal proceedings

52 . The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement laid down in Article 6 § 1 of the Convention, which reads as follows:

“In the determination of ... any criminal charge against him everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

53 . The Government contested that argument.

54 . The Court notes that the criminal proceedings commenced on 8 March 1995 with the applicant ’ s arrest and ended on 19 January 2009 with the final decision delivered by the Court of Cassation. They thus lasted for thirteen years and ten months before two levels of jurisdiction.

55 . T he Court finds that this complaint is not manifestly ill-founded , nor it is inadmissible on any other grounds. It must therefore be declared admissible.

56 . As regards the merits of the complaint, the Government argued that the length of the proceedings in the present case had been reasonable , considering the complexity of the prosecution of crimes committed on behalf of an illegal organisation , the difficulty in collecting evidence and the number of accused, intervening and complainant parties involved in the proceedings . In this connection, the Government contended that there had been no delay in the proceedings which could be attributable to the national authorities.

57 . The applicant maintained his complaint .

58 . The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and that of the relevant authorities ( see, among many other authorities, Daneshpayeh v. Turkey , no. 21086/04, § 26, 16 July 2009).

59 . The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Hasan Döner v. Turkey , no. 53546/99, § 54, 20 November 2007; Uysal and Osal v. Turkey , no. 1206/03, § 33, 13 December 2007; and Can and Gümüş v. Turkey , nos. 16777/06 and 2090/07, § 19, 31 March 2009 ). Having examined all the material submitted to it, the Court considers that the length of the criminal proceedings w as excessive and failed to meet the “reasonable time” requirement (see Daneshpayeh v. Turkey , cited above , § 28 ).

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

I V . ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

61 . The applicant lastly complained that there were no domestic remedies available under Turkish law whereby he could challenge the length of the criminal proceedings in question. He relied on Article 13 of the Convention, which reads as follows:

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

62 . The Government did not comment on th is matter.

63 . As this complaint is linked to the above complaint under Article 6 § 1 concerning the length of the criminal proceedings , it must also be declared admissible. The Court has examined similar cases on previous occasions and has found violations of Article 13 of the Convention in respect of the lack of an effective remedy under Turkish law whereby the applicant could have contested the undue length of the proceedings at issue (see Daneshpayeh , cited above, §§ 37 and 51; Bahçeyaka v. Turkey , no. 74463/01, §§ 26-30, 13 July 2006; and Tendik and Others v. Turkey , no. 23188/02, §§ 34-39, 22 December 2005). It finds no reason to depart from that conclusion in the present case.

64 . There has accordingly been a breach of Article 13.

V . OTHER ALLEGED VIOLATIONS OF THE CONVENTION

65 . Without relying on any Article of the Convention, the applicant complained that his family members had not been informed about his arrest in 1995. Even assuming that th is complaint m ight fall with in the scope of Article 5 § 2 of the Convention , the Court notes that the applicant was released from police custody on 5 April 1995 , whereas he introduced this complaint to the Court on 28 December 2006 . T his part of the application therefore does not co mpl y with the six-month time-limit laid down in Article 35 § 1 of the Convention.

66 . The applicant, in substance, complained under Article 5 § 4 of the Convention that there had been no effective remedy for his lengthy pre-trial detention. The Court recalls that Article 5 § 4 applies to the proceedings before a court following the filing of an appeal against a decision extending a person ’ s detention (see Altınok v. Turkey , no. 31610/08 , §§ 39-40 , 29 November 2011 ) . However, t he Court observes that in the present case the applicant never filed an objection against the first-instance court ’ s decisions extending his pre-trial detention. This complaint is therefore inadmissible for being manifestly ill-founded and must be rejected pursuant to Article 35 § 4 of the Convention.

67 . The applicant complained that he had been denied a fair hearing by an independent and impartial tribunal on account of the presence of a military judge on the bench of the Diyarbak ır State Security Court which tried him. The Court notes that although at the initial stage of the proceedings the applicant was tried before the Diyarbakır State Security Court whose composition included a military judge, in 1999 the C onstitution was amended and the military judge sitting on the bench of the Diyarbakır State Security Court was replaced by a civil judge. While the proceedings were pending, the S tate Se curity C ourts were abolished and the criminal proceedings against the applicant were transferred to the Diyarbakır Assize Court , which sub sequently convicted him . The applicant ’ s complaint concerning the independence and impartiality of the Diyarbak ır State Security Court should be therefore rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention ( see, among others, Osman v. Turkey , no. 4415/ 02, § 17, 19 December 2006 ) .

V I . APPLICATION OF ARTICLE 41 OF THE CONVENTION

68 . The applicant clai med 50,000 euros (EUR) in respect of both pecuniary and non-pecuniary damage s . The applicant generally requested the award of costs and expenses incurred during the proceedings. However, he did not mention any specific sum nor did he substantia te this claim with any documents .

69 . The Government contested the claim.

70 . The Court does not discern any causal link between the violation s found and the pecuniary damage alleged; it therefore rejects this claim. Deciding on an equitable basis, the Court awards the applicant EUR 14,40 0 in respect of non-pecuniary damage.

71 . Having regard to the finding of a violation of the applicant ’ s right to a fair trial in the instant case, t he Court considers that the most appropriate form of redress would be the retrial of the applicant in accordance with the requirements of Article 6 § 1 of the Convention, should he so request (see S alduz , cited above, § 72 )

72 . As regards the costs and expenses, the Court notes that a ccording to its 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 an d necessarily incurred and were reasonable as to quantum. In the present case, the Court observes that the applicant did not produce any d ocument in support of his claim . Accordingly, the Court makes no award under this head (see Karataş and Yıldız and Others v. Turkey , nos. 4889/05, 4897/05, 24009/05, 33694/05, 37759/05, 42996/06, 43031/06, 43019/06, 43038/06 and 43054/06, § 30, 16 July 2009).

73 . 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 complaint s concerning the length of the applicant ’ s detention pending trial , the length of the criminal proceedings against him, the absence of an effective remedy for undue length of proceedings and the denial of access to a lawyer admissible and the remainder of the application inadmissible ;

2 . Holds that there has been a violation of Ar ticle 5 § 3 of the Convention on account of the length of the applicant ’ s pre-trial detention ;

3. Holds that there has been a violation of Ar ticle 6 § 1 of the Convention on account of the excessive length of the criminal proceedings brought against the applicant;

4. Holds that there has been a violation of Article 6 § 3 (c) of the Convention in conjunction with Article 6 § 1, on account of the lack of legal assistance afforded to the applicant while in police custody;

5. Holds that there has been a violation of Article 13 of the Convention on account of the absence of a domestic remedy for excessive l ength of court proceedings;

6. Holds

(a) that the respondent State is to pay the applicant , within three months, EUR 14,400 (fourteen thousand four hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage , to be converted into Turkish liras 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 poin ts;

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

Done in English, and notified in writing on 24 July 2012 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

             Françoise Elens-Passos Isabelle Berro-Lefèvr e Deputy Registrar President