Nicolas Bratza, President,
Christos Rozakis, Josep Casadevall, Rıza Türmen, Rait Maruste, Vladimiro Zagrebelsky, Stanislav Pavlovschi, Alvina Gyulumyan, Ljiljana Mijović, Dean Spielmann, Renate Jaeger, David Thór Björgvinsson, Ján Šikuta, Ineta Ziemele, Mark Villiger, Luis López Guerra, Mirjana Lazarova Trajkovska, judges, and Vincent Berger, Jurisconsult,
Having deliberated in private on 19 March and 15 October 2008,
Delivers the following judgment, which was adopted on the last mentioned date:
1. The case originated in an application (no. 36391/02) 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 Yusuf Salduz (“the applicant”), on 8 August 2002.
2. The applicant alleged, in particular, that his defence rights had been violated in that the written opinion of the Principal Public Prosecutor at the Court of Cassation had not been communicated to him and that he had been denied access to a lawyer while in police custody. In respect of his complaints, he relied on Article 6 §§ 1 and 3 (c) of the Convention.
3. The application was allocated to the Second Section of the Court (Rule 52 § 1 of the Rules of Court).
4. By a decision dated 28 March 2006 the application was declared partly inadmissible by a Chamber from that Section composed of the following judges: Jean-Paul Costa, Andras Baka, Rıza Türmen, Karl Jungwiert, Mindia Ugrekhelidze, Antonella Mularoni, Elisabet Fura-Sandström, and Sally Dollé, Section Registrar.
5. In its judgment of 26 April 2007 (“the Chamber judgment”), the Chamber, made up of the following judges: Françoise Tulkens, Andras Baka, Ireneu Cabral Barreto, Rıza Türmen, Mindia Ugrekhelidze, Antonella Mularoni and Danute Jočienė, and also of Sally Dollé, Section Registrar, held unanimously that there had been a violation of Article 6 § 1 of the Convention on account of the non-communication of the Principal Public Prosecutor's written opinion and further held by five votes to two that there had been no violation of Article 6 § 3 (c) on account of the lack of legal assistance to the applicant while in police custody.
6. On 20 July 2007 the applicant requested that the case be referred to the Grand Chamber (Article 43 of the Convention).
7. On 24 September 2007 a panel of the Grand Chamber decided to accept his request (Rule 73).
8. The composition of the Grand Chamber was determined according to the provisions of Article 27 §§ 2 and 3 of the Convention and Rule 24.
9. The applicant and the Government each filed written observations on the merits.
10. A hearing took place in public in the Human Rights Building, Strasbourg, on 19 March 2008 (Rule 59 § 3).
There appeared before the Court:
(a) for the Government
Mr. M. Özmen, co-Agent,
Ms N. Çetin,
Ms A. Özdemir,
Ms İ. Kocayiğit Mr C. Aydin, Advisers;
Mr U. Kilinç, Counsel,
Ms T. Aslan, Adviser.
The Court heard addresses by Mr Kılınç and Mr Özmen, as well as their replies to questions by the Court.
I. THE CIRCUMSTANCES OF THE CASE
11. The applicant was born on 2 February 1984 and lives in İzmir.
A. The applicant's arrest and detention
12. On 29 May 2001 at about 10.15 p.m., the applicant was taken into custody by police officers from the Anti-Terrorism Branch of the İzmir Security Directorate on suspicion of having participated in an unlawful demonstration in support of an illegal organisation, namely the PKK (the Workers' Party of Kurdistan). The applicant was also accused of hanging an illegal banner from a bridge in Bornova on 26 April 2001.
13. At about 12.30 a.m. on 30 May 2001 the applicant was taken to the Atatürk Teaching and Research Hospital, where he was examined by a doctor. The medical report stated that there was no trace of ill-treatment on his body.
14. Subsequently, at about 1 a.m., the applicant was interrogated at the Anti-Terrorism Branch in the absence of a lawyer. According to a form explaining arrested persons' rights which the applicant had signed, he had been reminded of the charges against him and of his right to remain silent. In his statement, the applicant admitted his involvement in the youth branch of HADEP (Halkın Demokrasi Partisi – the People's Democracy Party). He gave the names of several persons who worked for the youth branch of the Bornova District Office. He explained that he was the assistant youth press and publications officer and also responsible for the Osmangazi neighbourhood. He further stated that it had been part of his job to assign duties to other members of the youth branch. He admitted that he had participated in the demonstration on 29 May 2001 organised by HADEP in support of the imprisoned leader of the PKK. He said that there had been about sixty demonstrators present and that the group had shouted slogans in support of Öcalan and the PKK. He had been arrested on the spot. He also admitted that he had written “Long live leader Apo” on a banner which had been hung from a bridge on 26 April 2001. The police took samples of the applicant's handwriting and sent it to the police laboratory for examination.
15. On 1 June 2001 the İzmir Criminal Police Laboratory issued a report after comparing the applicant's handwriting to that on the banner. It concluded that although certain characteristics of the applicant's handwriting bore similarities to the handwriting on the banner, it could not be established whether or not the writing on the banner was in fact his.
17. On the same day the applicant was brought before the public prosecutor and subsequently the investigating judge. Before the public prosecutor, he explained that he was not a member of any political party, but had taken part in certain activities of HADEP. He denied fabricating an illegal banner or participating in the demonstration on 29 May 2001. He stated that he was in the Doğanlar neighbourhood to visit a friend when he was arrested by the police. The applicant also made a statement to the investigating judge, in which he retracted his statement to the police, alleging that it had been extracted under duress. He claimed that he had been beaten and insulted while in police custody. He again denied engaging in any illegal activity and explained that on 29 May 2001 he had gone to the Doğanlar neighbourhood to visit a friend and had not been part of the group shouting slogans. After the questioning was over, the investigating judge remanded the applicant in custody, having regard to the nature of the offence of which he was accused and the state of the evidence. The applicant was then allowed to have access to a lawyer.
B. The trial
18. On 11 July 2001 the Public Prosecutor at the İzmir State Security Court filed an indictment with that court accusing the applicant and eight other accused of aiding and abetting the PKK, an offence under Article 169 of the Criminal Code and section 5 of the Prevention of Terrorism Act (Law no. 3713).
19. On 16 July 2001 the State Security Court held a preparatory hearing. It decided that the applicant's detention on remand should be continued and that the accused be invited to prepare their defence submissions.
20. On 28 August 2001 the State Security Court held its first hearing, in the presence of the applicant and his lawyer. It heard evidence from the applicant in person, who denied the charges against him. He also rejected the police statement, alleging that it had been extracted from him under duress. He explained that while he was in custody, police officers had ordered him to copy the words from a banner. He also stated that he had witnessed the events that had taken place on 29 May 2001; however, he had not taken part in the demonstration as alleged. Instead, he had been in the neighbourhood to visit a friend named Özcan. He also denied hanging an illegal banner from a bridge on 26 May 2001.
21. At the next hearing, which was held on 25 October 2001, the applicant and his lawyer were both present. The court also heard from other accused persons, all of whom denied having participated in the illegal demonstration on 29 May 2001 and retracted statements they had made previously. The prosecution then called for the applicant to be sentenced pursuant to Article 169 of the Criminal Code and the applicant's lawyer requested time to submit the applicant's defence submissions.
22. On 5 December 2001 the applicant made his defence submissions. He denied the charges against him and requested his release. On the same day the İzmir State Security Court delivered its judgment. It acquitted five of the accused and convicted the applicant and three other accused as charged. It sentenced the applicant to four years and six months' imprisonment, which was reduced to two and a half years as the applicant had been a minor at the time of the offence.
23. In convicting the applicant, the State Security Court had regard to the applicant's statements to the police, the public prosecutor and the investigating judge respectively. It also took into consideration his co-defendants' evidence before the public prosecutor that the applicant had urged them to participate in the demonstration of 29 May 2001. The court noted that the co-defendants had also given evidence that the applicant had been in charge of organising the demonstration. It further took note of the expert report comparing the applicant's handwriting to that on the banner and of the fact that, according to the police report on the arrest, the applicant had been among the demonstrators. It concluded:
“... in view of these material facts, the court does not accept the applicant's denial and finds that his confession to the police is substantiated.”
C. The appeal
24. On 2 January 2002 the applicant's lawyer appealed against the judgment of the İzmir State Security Court. In her notice of appeal, she alleged a breach of Articles 5 and 6 of the Convention, arguing that the proceedings before the first-instance court had been unfair and that the court had failed to assess the evidence properly.
25. On 27 March 2002 the Principal Public Prosecutor at the Court of Cassation lodged a written opinion with the Ninth Chamber of the Court of Cassation in which he submitted that the Chamber should uphold the judgment of the İzmir State Security Court. This opinion was not served on the applicant or his representative.
26. On 10 June 2002 the Ninth Chamber of the Court of Cassation, upholding the İzmir State Security Court's reasoning and assessment of the evidence, dismissed the applicant's appeal.
1. The legislation in force at the time of the application
27. The relevant provisions of the former Code of Criminal Procedure (no. 1412), namely Articles 135, 136 and 138, provided that anyone suspected or accused of a criminal offence had a right of access to a lawyer from the moment they were taken into police custody. Article 138 clearly stipulated that for juveniles legal assistance was obligatory.
28. According to section 31 of Law no. 3842 of 18 November 1992, which amended the legislation on criminal procedure, the above-mentioned provisions were not applicable to persons accused of offences falling within the jurisdiction of the state security courts.
2. Recent amendments
29. On 15 July 2003, by Law no. 4928, the restriction on an accused's right of access to a lawyer in proceedings before the state security courts was lifted.
30. On 1 July 2005 a new Code of Criminal Procedure entered into force. According to the relevant provisions of the new code (Articles 149 and 150), all detained persons have the right of access to a lawyer from the moment they are taken into police custody. The appointment of a lawyer is obligatory if the person concerned is a minor or if he or she is accused of an offence punishable by a maximum of at least five years' imprisonment.
31. Finally, section 10 of the Prevention of Terrorism Act (Law no. 3713), as amended on 29 June 2006, provides that for terrorist related offences, the right of access to a lawyer may be delayed for twenty-four hours on the order of a public prosecutor. However, the accused cannot be interrogated during this period.
B. Relevant international law materials
1. Procedure in juvenile cases
(a) Council of Europe
32. The recommendation of the Committee of Ministers to Member States of the Council of Europe concerning new ways of dealing with juvenile delinquency and the role of juvenile justice (Rec (2003)20), adopted on 24 September 2003 at the 853rdmeeting of the Ministers' Deputies, in so far as relevant, reads as follows:
“15. Where juveniles are detained in police custody, account should be taken of their status as a minor, their age and their vulnerability and level of maturity. They should be promptly informed of their rights and safeguards in a manner that ensures their full understanding. While being questioned by the police they should, in principle, be accompanied by their parent/legal guardian or other appropriate adult. They should also have the right of access to a lawyer and a doctor...”
33. The recommendation of the Committee of Ministers to Member States of the Council of Europe on social reactions to juvenile delinquency (no. R (87)20), adopted on 17 September 1987 at the 410thmeeting of the Ministers' Deputies, in so far as relevant, reads as follows:
“Recommends the governments of member states to review, if necessary, their legislation and practice with a view:
8. to reinforcing the legal position of minors throughout the proceedings, including the police interrogation, by recognising, inter alia:
– the right to the assistance of a counsel who may, if necessary, be officially appointed and paid by the state.”
(b) United Nations
(i) Convention on the Rights of the Child
34. Article 37 of the Convention on the Rights of the Child (CRC), in so far as relevant, reads as follows:
“States Parties shall ensure that: ...
(d) Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.”
(ii) General comment no. 10 of the Committee on the Rights of the Child, dated 25 April 2007 (CRC/C/GC/10)
35. The relevant part of this text concerning legal assistance to minors in police custody provides as follows:
“49. The child must be guaranteed legal or other appropriate assistance in the preparation and presentation of his/her defence. CRC does require that the child be provided with assistance, which is not necessarily under all circumstances legal but it must be appropriate. It is left to the discretion of the States parties to determine how this assistance is provided but it should be free of charge...
52. The Committee recommends that the States parties set and implement time limits for the period between the communication of the offence and the completion of the police investigation, the decision of the prosecutor (or other competent body) to bring charges against the child, and the final adjudication and decision by the court or other competent judicial body. These time limits should be much shorter than those set for adults. But at the same time, decisions without delay should be the result of a process in which the human rights of the child and legal safeguards are fully respected. In this decision-making process without delay, the legal or other appropriate assistance must be present. This presence should not be limited to the trial before the court or other judicial body, but also applies to all other stages of the process, beginning with the interviewing (interrogation) of the child by the police.”
(iii) Concluding Observations of the United Nations Committee on the Rights of the Child: Turkey, dated 9 July 2001 (CRC/C/15/Add.152.)
36. The relevant part of this text provides as follows:
“66. The Committee recommends that the State party continue reviewing the law and practices regarding the juvenile justice system in order to bring it into full compliance with the Convention, in particular articles 37, 40 and 39, as well as with other relevant international standards in this area, such as the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules) and the United Nations Guidelines for the Prevention of Juvenile Delinquency (the Riyadh Guidelines), with a view to raising the minimum legal age for criminal responsibility, extending the protection guaranteed by the Juvenile Law Court to all children up to the age of 18 and enforcing this law effectively by establishing juvenile courts in every province. In particular, it reminds the State party that juvenile offenders should be dealt with without delay, in order to avoid periods of incommunicado detention, and that pre-trial detention should be used only as a measure of last resort, should be as short as possible and should be no longer than the period prescribed by law. Alternative measures to pre-trial detention should be used whenever possible.”
2. Right of access to a lawyer during police custody
(a) Council of Europe
(i) Rules adopted by the Committee of Ministers
37. Rule 93 of the Standard Minimum Rules for the Treatment of Prisoners (Resolution (73)5 of the Committee of Ministers of the Council of Europe) provides: “An untried prisoner shall be entitled, as soon as he is imprisoned, to choose his legal representation ... and to receive visits from his legal adviser with a view to his defence and to prepare and hand to him and to receive, confidential instructions. At his request, he shall be given all necessary facilities for this purpose. ... Interviews between the prisoner and his legal adviser may be within sight but not within hearing, either direct or indirect, of a police or institution official.”
38. Furthermore, the recommendation of the Committee of Ministers to Member States of the Council of Europe on the European Prison Rules (Rec (2006)2), adopted on 11 January 2006 at the 952nd meeting of the Ministers' Deputies, in so far as relevant, reads as follows:
23.1 All prisoners are entitled to legal advice, and the prison authorities shall provide them with reasonable facilities for gaining access to such advice.
23.2 Prisoners may consult on any legal matter with a legal adviser of their own choice and at their own expense.
23.5 A judicial authority may in exceptional circumstances authorise restrictions on such confidentiality to prevent serious crime or major breaches of prison safety and security.”
(ii) European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT)
39. Following its visit to Turkey in July 2000, the CPT published its report dated 8 November 2001 (CPT/Inf(2001)25. It stated:
“61. Despite the many changes to legislation in recent years, certain weaknesses remain as regards formal safeguards against ill treatment. Perhaps the most important shortcoming is that persons detained on suspicion of collective offences falling under the jurisdiction of the State Security Courts are still not entitled to access to a lawyer during the first four days of their custody. Further, despite earlier affirmations to the contrary, the Turkish authorities made clear in their response to the report on the February/March 1999 visit that such persons are being denied during the first four days of their custody the possibility to inform a relative of their situation. Such incommunicado detention can only facilitate the infliction of ill treatment.
The CPT must therefore reiterate once again the recommendation that all persons deprived of their liberty by the law enforcement agencies, including persons suspected of offences falling under the jurisdiction of the State Security Courts, be granted as from the outset of their custody the right of access to a lawyer. The CPT recognises that in order to protect the legitimate interests of the police investigation, it may exceptionally be necessary to delay for a certain period a detained person's access to a lawyer of his choice; however, in such cases, access to another independent lawyer should be arranged.
The implementation of the above recommendation will require legislative measures. However, in the meantime, immediate steps should be taken to ensure that existing legal provisions are complied with. Indeed, the information gathered during the July 2000 ad hoc visit clearly indicates that even after the first four days of police custody, access to a lawyer for persons suspected of State Security Court offences is in practice the exception rather than the rule. The CPT recommends that the officials responsible for carrying out checks and inspections under the previously-mentioned compliance monitoring procedure be instructed to pay particular attention to whether persons suspected of collective offences falling under the jurisdiction of the State Security Courts are being informed of their right to have access to a lawyer after the first four days of their custody and are being placed in a position effectively to exercise that right.”
40. The CPT visited Turkey again in September 2001 and in its report dated 24 April 2002 (CPT/Inf (2002)8) stated:
“12. The amendments made to Article 16 of the Law on the Organisation and Trial Procedures of State Security Courts have also introduced an improvement as regards access to a lawyer for persons detained on suspicion of collective offences falling under the jurisdiction of State Security Courts. For such persons, the right of access to a lawyer becomes operative after the prosecutor has issued a written order for the extension of police custody beyond 48 hours; in other words, they are now denied access to a lawyer only for two days as compared to four days under the previous law.
Whilst welcoming this step forward, the CPT regrets that the opportunity was not taken to guarantee to persons detained for collective State Security Court offences a right of access to a lawyer as from the very outset of their custody (and hence align their rights in this respect with those of ordinary criminal suspects). The CPT trusts that the Turkish authorities will in the near future implement the Committee's long-standing recommendation that all persons deprived of their liberty by law enforcement agencies, including persons suspected of offences falling under the jurisdiction of the State Security Courts, be granted as from the outset of their custody the right of access to a lawyer.
46. Reference has been made earlier to recent positive legislative developments concerning the rights of access to a lawyer and to have one's custody notified to a relative (cf. paragraphs 12 to 14). They have further improved an already impressive legal and regulatory framework to combat torture and ill-treatment. Nevertheless, the CPT remains very concerned by the fact that persons detained on suspicion of collective offences falling under the jurisdiction of State Security Courts are still denied access to a lawyer during the first two days of their custody; its position on this point has been made clear in paragraph 12.
Further, the actual content of the right of access to a lawyer for persons suspected of State Security Court Offences remains less well developed than in the case of ordinary criminal suspects. In particular, as far as the CPT can ascertain, it is still the case that such suspects are not entitled to have the lawyer present when making a statement to the police and that the procedure allowing for the appointment of a lawyer by the Bar Association is not applicable to them. Similarly, the provision making obligatory the appointment of a lawyer for persons under 18 still does not apply to juveniles who are detained on suspicion of State Security Court offences. In this regard, the CPT reiterates the recommendation already made in the report on the October 1997 visit, that the relevant provisions of Articles 135, 136 and 138 of the Code of Criminal Procedure be rendered applicable to persons suspected of offences falling under the jurisdiction of the State Security Courts.”