SECOND SECTION

CASE OF ORAL AND OTHERS v. TURKEY

(Application no. 32043/11)

JUDGMENT

STRASBOURG

1 March 2022

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

In the case of Oral and Others v. Turkey,

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

Branko Lubarda, President, Jovan Ilievski, Diana Sârcu, judges, and Hasan Bakırcı, Deputy Section Registrar,

Having regard to:

the application (no. 32043/11) 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 23 September 2009 by three Turkish nationals, whose relevant details are listed in the appended table (“the applicants”) and who were represented before the Court by Mr İ. Akmeşe , a lawyer practising in Istanbul;

the decision to give notice of the complaints 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 1 February 2022,

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

SUBJECT MATTER OF THE CASE

1. The application concerns the alleged unfairness of criminal proceedings against the applicants (i) under Article 6 § 3 (c) of the Convention owing to the alleged invalidity of signed waivers of the applicants’ right to legal assistance while making statements to the police and the use of those statements by the domestic courts in convicting them and (ii) under Article 6 § 3 (d) of the Convention owing to the third applicant’s alleged inability to question a witness, called S.T.

2. On 26 December 2007 the Istanbul Assize Court convicted the applicants, pursuant to Article 169 of the former Criminal Code (Law no. 765), of aiding and abetting an armed gang, namely PKK/KONGRA-GEL (Workers’ Party of Kurdistan/People’s Congress of Kurdistan – hereinafter “the PKK”), on the basis of, inter alia , statements which they and three other persons (M.Y., H.Ç. and S.T.) had made to the police without a lawyer being present. The court sentenced each of them to three years and nine months’ imprisonment. The trial court found that all three of the applicants had hung illegal banners and that the second and the third applicants had taken part in an unauthorised gathering and had chanted slogans. On 15 December 2010 the Court of Cassation upheld the trial court’s judgment.

THE COURT’S ASSESSMENT

3. The applicants complained under Article 6 §§ 1 and 3 (c) of the Convention that they had not had a fair trial, given that they had not been provided with a lawyer when they had made statements to the police (the first two applicants) and the public prosecutor (the third applicant), and that those statements had later been used by the domestic courts to convict them.

4. The Government raised a preliminary objection, submitting that the applicants could not claim to be victims of a violation under Article 6 of the Convention, given that they had waived their right to a lawyer, as demonstrated by the documents that they had signed while in police custody. In any event, the overall fairness of the criminal proceedings had not been prejudiced by the absence of a lawyer during their police interviews in the light of the strength of the remaining incriminating evidence – notably the fact that the first two applicants had been caught in the act of hanging banners.

5. As the Government’s preliminary objection is closely linked to the merits of this complaint, the Court joins it thereto. Furthermore, the applicants’ complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

6. The general principles concerning the validity of the waiver of the right to a lawyer have been summarised in Simeonovi v. Bulgaria ([GC], no. 21980/04, §§ 122-144, 12 May 2017) and Ruşen Bayar v. Turkey (no. 25253/08, §§ 113-123, 19 February 2019).

7. The Court notes that the first and second applicants were taken into police custody in good health, as was established in the medical reports drawn up in respect of them on 14 March 2004. However, the medical reports compiled at the end of their police custody indicated that the first and second applicants had been physically unfit to work for one day and three days, respectively. The applicants’ ill-treatment complaints under Article 3 of the Convention were declared inadmissible as being manifestly ill-founded on the grounds that it could not be established “beyond reasonable doubt” that the police had inflicted ill-treatment on them (see Oral and Yahli v. Turkey (dec.), no. 34221/08, 4 October 2011). Nevertheless, the inadmissibility of the applicants’ complaint under Article 3 does not detract from the fact that they were able to put forward a prima facie claim of ill-treatment, the existence of which is sufficient to impair the “unequivocal” nature of their waiver. In particular, the medical report of 16 March 2004 drawn up in respect of the second applicant contained his allegation that the police had stepped on his back while taking his statements and the doctor’s finding that the lesion on his back had rendered him unfit for work for one day. As regards the first applicant, he consistently denied the part of his statement to the police which included his acknowledgement that he had been affiliated with the Independent Youth Movement of the PKK, thereby fulfilling the criterion set down in Ruşen Bayar (cited above). In view of the above, the Court cannot conclude that the first two applicants validly waived their right to legal assistance.

8. Furthermore, there were no “compelling reasons” to restrict their access to a lawyer. Crucially, even though the first two applicants’ statements to the police formed an integral part of their conviction, neither the trial court nor the Court of Cassation attempted to enquire about the circumstances surrounding the first two applicants’ waivers nor examined their admissibility (see Bozkaya v. Turkey , no. 46661/09, §§ 49-54, 5 September 2017; Türk v. Turkey , no. 22744/07, §§ 53-59, 5 September 2017; RuÅŸen Bayar , cited above, §§ 126-136; and AkdaÄŸ v. Turkey , no. 75460/10, §§ 64 ‑ 71, 17 September 2019).

9. There has accordingly been a violation of Article 6 §§ 1 and 3 (c) of the Convention in respect of the first two applicants. By so concluding, the Court also dismisses the Government’s preliminary objection concerning the applicants’ victim status.

10. In view of its finding in paragraph 17 below, the Court does not consider it necessary to examine the third applicant’s complaint under Article 6 §§ 1 and 3 (c) of the Convention.

11. The third applicant complained further under Article 6 § 3 (d) of the Convention that he had not had a fair trial owing to his inability to question S.T.

12. The Government submitted that the applicant had not raised his complaint during the proceedings before the trial court and criticised him for waiting five years before raising that complaint before the Court of Cassation.

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

14. The principles regarding the right to obtain the attendance and examination of witnesses can be found in Al ‑ Khawaja and Tahery v. the United Kingdom ([GC], nos. 26766/05 and 22228/06, §§ 118-51, ECHR 2011), Schatschaschwili v. Germany ([GC], no. 9154/10, §§ 100-31, ECHR 2015) and Süleyman v. Turkey , (no. 59453/10, §§ 61-66, 17 November 2020).

15. While it is true that the third applicant did not ask the trial court to hear S.T. in person, this failure cannot be held against him, given that the trial court, in requesting copies of S.T.’s statements, indicated “S.T., who made statements in respect of İbrahim Halil Yahli [the second applicant]” in its letter dated 29 November 2007 – that is, approximately one month before the final hearing at which it convicted the applicants. It is therefore reasonable that the third applicant did not ask the trial court to secure S.T.’s presence at that stage of the proceedings. However, the third applicant explicitly raised that issue on the third page of his appeal dated 3 September 2009; he cannot therefore be assumed to have waived that complaint (see Murtazaliyeva v. Russia [GC], no. 36658/05, § 126, 18 December 2018).

16. The Court further notes that there was no good reason for S.T.’s non ‑ attendance at the trial. Furthermore, the evidence S.T. carried, at the very least, significant weight in relation to the third applicant’s conviction, having regard, in particular, to the fact that, in S.T.’s statements to the police, the applicant’s participation in a press statement was described within the context of activities undertaken on behalf of the PKK. More importantly, the Court finds it striking that the domestic courts did not examine the admissibility and the reliability of the evidence given by S.T., despite the fact that the public prosecutor, who had taken his statements immediately after his police custody, noted that S.T. had had bruises under his eyes, blood stains on his clothes and a laceration on the back of his head, which had been closed with sutures. Neither did the domestic courts pay heed to the fact that S.T. had made statements to the police without a lawyer being present and had retracted them during the first hearing in his case (compare Fikret Karahan v. Turkey , no. 53848/07, § 49, 16 March 2021). Furthermore, the Court discerns no effective procedural safeguards capable of compensating for the absence of S.T.

17 . In view of the foregoing considerations, the Court concludes that the third applicant was not afforded sufficient safeguards commensurate with the nature of his complaint and the importance of what was at stake for him – namely three years and nine months’ imprisonment – that could have enabled the court to sufficiently test the reliability and truthfulness of the evidence given by S.T., in line with the guarantees of a fair trial under Article 6 of the Convention.

18. There has therefore been a violation of Article 6 §§ 1 and 3 (d) of the Convention in respect of the third applicant.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

19. Without submitting any documentary proof in respect of their claims, each applicant claimed 50,000 euros (EUR) in respect of pecuniary damage and a total of 27,878 Turkish liras (approximately EUR 4,295) in respect of costs and expenses.

20. The Government contested those claims.

21. The Court considers that the finding of a violation of Article 6 §§ 1 and 3 (c) of the Convention constitutes sufficient just satisfaction in respect of the first and second applicants (see Akdağ , cited above, § 75; Bozkaya , cited above, § 69; and Türk , cited above, § 69). However, the third applicant must have suffered non-pecuniary damage as a result of the violation of his rights under Article 6 §§ 1 and 3 (d) of the Convention, which cannot be compensated for solely by the finding of a violation. The Court thus awards the third applicant EUR 5,000 under this head, plus any taxes that may be chargeable to him (see Ürek and Ürek v. Turkey , no. 74845/12, § 78, 30 July 2019). It furthermore notes that Article 311 of the Code of Criminal Procedure allows for the reopening of domestic proceedings in the event that the Court finds a violation of the Convention.

22. Lastly, the applicants’ claims in respect of costs and expenses must be rejected, regard being had to the terms of Rule 60 § 2 of the Rules of Court and the applicants’ failure to provide the Court with any documents in support of their claims.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

(a) that the respondent State is to pay the third applicant, within three months, the following amount , to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(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;

Done in English, and notified in writing on 1 March 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Hasan Bakırcı Branko Lubarda Deputy Registrar President

APPENDIX

List of applicants

Application no. 32043/11

No.

Applicant’s Name

Year of birth/registration

Nationality

Place of residence

1.Ramazan ORAL

1985Turkish

Mersin

2.Ä°brahim Halil YAHLÄ°

1984Turkish

Istanbul

3.Enver TEKÄ°N

1983Turkish

Bursa