SECOND SECTION

CASE OF OKUYUCU v. TURKEY

(Application no. 78510/11)

JUDGMENT

STRASBOURG

3 May 2022

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

In the case of Okuyucu v. Turkey,

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

Egidijus Kūris, President, Pauliine Koskelo, Gilberto Felici, judges, and Hasan Bakırcı, Deputy Section Registrar,

Having regard to:

the application (no. 78510/11) 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”) on 11 November 2011 by a Turkish national, Ms Yasemin Okuyucu, born in 1972 and living in Basel (“the applicant”) who was represented by Ms S. Epçeli Arslan, a lawyer practising in Istanbul;

the decision to give notice of the complaints under Article 6 of the Convention to the Turkish Government (“the Government”), represented by their Agent, Mr Hacı Ali Açıkgül, Head of the Department of Human Rights of the Ministry of Justice of the Republic of Turkey , and to declare the remainder of the application inadmissible;

the parties’ observations;

Having deliberated in private on 29 March 2022,

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

SUBJECT MATTER OF THE CASE

1. The application mainly concerns the alleged unfairness of criminal proceedings against the applicant on account of the domestic courts’ use of the evidence given by the applicant and her co-accused allegedly under duress and in the absence of a lawyer, to convict her. The application further concerns the domestic authorities’ failure to inform the applicant of her basic rights during the investigation stage and to appoint a lawyer for her during the trial stage.

2. From 11 February to 26 February 1992 the applicant was in police custody and made self-incriminatory statements during her interview and the two reconstructions of events in which she took part. According to a report drawn up by the Institute of Forensic Medicine on 26 February 1992, the applicant’s medical examination revealed no signs of battery or coercion on her body.

3. Following her transfer to Istanbul prison, the applicant was examined by the prison doctor, who noted the presence of a series of marks on the applicant’s body in his report dated 28 February 1992. According to a medical report drawn up in 4 March 1992 by a doctor at the Eyüp branch of the Forensic Medicine Institute, after examining the applicant and the prison doctor’s report, the applicant was certified unfit for work for five days on the basis of the following findings on her body: “Widespread ecchymosis and oedema on the right patella, ecchymosis measuring 2 cm by 3 cm which formed a scab, scab-covered lesion measuring 3 cm by 0.5 cm on the middle part of the right shin, widespread ecchymosis at the inner part of the right foot, widespread scab-covered lesion on the outer side of the right foot, ten 3 cm long scab-covered linear lesions on the middle part of the right shin, ecchymosis on the left patella, an old ecchymosis measuring 6 by 5 cm on the upper part of the left thigh, two old ecchymoses measuring 3 by 2 cm on the left scapula, and subjective pain in both shoulders”. The doctor further noted that there were also signs of abrasions – the dimensions of which were indicated in the report of 28 February – which had partly formed scabs and partly healed over. Furthermore, three witnesses who testified during the trial stated that the applicant had been blindfolded when she had been shown to them for identification.

4. On 8 September 2009 the Istanbul Assize Court found the applicant guilty of attempting to undermine the constitutional order by force, under Article 146 of the former Criminal Code, and sentenced her to aggravated life imprisonment for her involvement, inter alia , in the killings of A.E., on 13 October 1991, and the chief public prosecutor of the Istanbul State Security Court Y.G., his driver, and his protection officer on 6 February 1992, as well as her involvement in an armed attack in Istanbul. The trial court relied on, inter alia , a report by the Forensic Medicine Institute dated 28 April 1993 concerning a strand of hair, and statements that the applicant had made in the absence of a lawyer. In a reasoned judgment, the Istanbul Assize Court emphasised that the statements made by M.D. (who was the applicant in Dikme v. Turkey , no. 20869/92, ECHR 2000 ‑ VIII), allegedly under duress, at the preliminary investigation stage, had had no impact on its decision in view of the remaining evidence in the case file. On 15 June 2011 the Court of Cassation upheld the first-instance court’s judgment.

THE COURT’S ASSESSMENT

5. The applicant alleged that she had not had a fair trial in that she had been convicted on the basis of evidence which she had given under duress during the preliminary investigation stage.

6. The Government submitted that the applicant had failed to exhaust domestic remedies in respect of her complaint, owing to her failure to lodge a formal complaint against the police officers. The Government further submitted that the overall fairness of the proceedings against the applicant had not been prejudiced, given that in convicting the applicant the domestic courts had relied not only on the evidence that she had given while in police custody, but also on other evidence.

7. The applicant did not comment on this issue.

8. The Court rejects the Government’s objection, finding that the applicant had raised that complaint in her appeal to the Court of Cassation.

9. This complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

10. The Court’s case-law concerning the admission of statements (such as those that the applicant made in her police interview or in the two reconstructions of events) obtained as a direct result of torture or of other ill-treatment in breach of Article 3 in order to establish the relevant facts in criminal proceedings, is crystal clear; such an admission would render the proceedings as a whole unfair, irrespective of the probative value of the statements and irrespective of whether their use was decisive in securing the defendant’s conviction (see, among other authorities, Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3 others, § 254, 13 September 2016).

11. Moreover, the absence of an admissible Article 3 complaint does not, in principle, preclude the Court from taking into consideration the applicant’s allegations that the police statements had been obtained using methods of coercion or oppression and that their admission to the case file, relied upon by the trial court, therefore constituted a violation of the fair trial guarantee of Article 6 (see Kolu v. Turkey , no. 35811/97, § 54, 2 August 2005; Örs and Others v. Turkey , no. 46213/99, § 60, 20 June 2006; Özcan Çolak v. Turkey , no. 30235/03, § 43, 6 October 2009; Aydın Çetinkaya v. Turkey , no. 2082/05, § 104, 2 February 2016; and Mehmet Duman v. Turkey , no. 38740/09, § 42, 23 October 2018).

12. The Court has already found a violation of Article 3 of the Convention in Dikme v. Turkey (no. 20869/92, §§ 73-104, ECHR 2000 ‑ VIII) on the ground that Metin Dikme, who was arrested, tried and convicted with the applicant in the same set of criminal proceedings, had been subjected to torture by police officers while in police custody. In reaching that conclusion, the Court had regard to a report by the Forensic Medicine Institute of 4 March 1992, which was based on a report drawn up by the prison physician in respect of that applicant on 28 February 1992, and which concluded that the injuries noted therein had rendered him unfit for work for five days. This was the case despite the existence of a medical report, compiled on the sixteenth and last day of his police custody (26 February 1992), indicating that there were no signs of ill-treatment on his body.

13. The Court observes that the applicant’s complaint under Article 3 of the Convention was declared inadmissible on 22 November 2018 when notice of the present application was given to the Government. Be that as it may, the applicant’s situation in the present case is almost identical to that of Metin Dikme, in that despite the existence of a medical report drawn up at the end of the applicant’s police custody on 26 February 1992 (as was also the case with regard to Metin Dikme), which allegedly concluded that the applicant had had no injuries on her body, the Forensic Medicine Institute’s report of 4 March 1992, drawn up after examining her, and the prison physician’s report of 28 February 1992 drawn up in her respect (as was also the case with regard to Metin Dikme) established certain injuries on her body and concluded that they had rendered the applicant unfit for work for five days. That being the case, the Court considers that those findings may be transposed to the instant case with a view to guiding its assessment in respect of the evidence given by the applicant while she was in police custody.

14. In that connection, the Court attaches decisive importance to the fact that the Government neither contested those injuries (see Karatepe and Others v. Turkey , nos. 33112/04 and 4 others, § 29, 7 April 2009) nor argued that the applicant had sustained them in the course of her arrest or during or after her transfer to Istanbul prison following her police custody, which might have led the Court to carry out a different examination capable of requiring it to depart from its findings in Dikme (cited above). In view of the above, the Court concludes that the admissibility, reliability, accuracy, and authenticity of the evidence given by the applicant during police custody was tainted, given that that evidence had been taken in defiance of her will, as demonstrated by the injuries and the conclusion contained in the Forensic Medicine Institute’s report of 4 March 1992.

15. That being the case, and having regard to the fact that the domestic courts used the above-mentioned evidence to convict the applicant, the Government’s argument that there had been other evidence capable of maintaining the safety of the applicant’s conviction cannot suffice to remedy the shortcoming identified above (see Aydın Çetinkaya , cited above, § 106). It follows that the overall fairness of the criminal proceedings against the applicant were prejudiced by the admission of the evidence that she had allegedly given under duress while in police custody.

16 . Accordingly, there has been a violation of Article 6 § 1 of the Convention.

17. Having regard to the above finding, the Court considers that it is not necessary to examine separately the remaining complaints raised under Article 6 of the Convention.

18. The applicant claimed 50,000 euros (EUR) in respect of pecuniary damage, asserting that her unlawful detention and conviction were based solely on evidence that she had given during her police custody under alleged duress.

19. The applicant further claimed EUR 50,000 in respect of non-pecuniary damage and EUR 1,000 in respect of costs and expenses.

20. The Government contested those claims.

21. The Court rejects the claim in so far as it concerns pecuniary damage as it discerns no causal link between the violation found and the pecuniary damage alleged. It also dismisses the claim for costs and expenses as the applicant submitted no documentary proof in support of that claim.

22. As for non-pecuniary damage, the Court considers that the finding of a violation of Article 6 §§ 1 and 3 (c) of the Convention in the instant case constitutes sufficient just satisfaction, given the possibility under Article 311 of the Code of Criminal Procedure of having the domestic proceedings reopened in the event that the Court finds a violation of the Convention (see, in particular, Ushakov and Ushakova v. Ukraine , no. 10705/12, § 112, 18 June 2015, and Golubyatnikov and Zhuchkov v. Russia , nos. 44822/06 and 49869/06, § 122, 9 October 2018).

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

Done in English, and notified in writing on 3 May 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Hasan Bakırcı Egidijus Kūris Deputy Registrar President