SECOND SECTION
CASE OF TUNCER AND OTHERS v. TÜRKİYE
(Application no. 60237/11)
JUDGMENT
STRASBOURG
13 June 2023
This judgment is final but it may be subject to editorial revision.
In the case of Tuncer and Others v. Türkiye,
The European Court of Human Rights (Second Section), sitting as a Committee composed of:
Pauliine Koskelo, President, Lorraine Schembri Orland, Davor Derenčinović, judges,and Dorothee von Arnim, Deputy Section Registrar,
Having regard to:
the application (no. 60237/11) against the Republic of Türkiye lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 21 July 2011 by three Turkish nationals, Mr Tamer Tuncer, Mr Nuri Akalın and Mr Mete Tuncer (“the applicants”), whose relevant details are listed in the appended table and who were represented by Ms G. Tuncer, a lawyer practising in Istanbul;
the decision to give notice of the complaints concerning the alleged unfairness of criminal proceedings 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 Türkiye, and to declare the remainder of the application inadmissible;
the parties’ observations;
the decision to reject the Government’s objection to examination of the application by a Committee;
Having deliberated in private on 23 May 2023,
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 owing to the systemic restriction imposed on their right of access to a lawyer, in accordance with Law no. 3842, during the preliminary investigation stage and the trial court’s use of evidence that they had given while in police custody allegedly under duress and in the absence of a lawyer. The application further pertains to the alleged lack of independence and impartiality of the trial court owing to the fact that a criminal complaint had been lodged by the bench of that court against the second applicant’s lawyer on account of the “disrespectful” manner in which she had addressed the court.
2. On 22 May 2009 the Istanbul Assize Court convicted the applicants under Article 125 of the previous Criminal Code (Law no. 765) of attempting to undermine the constitutional order by force and sentenced the first applicant to aggravated life imprisonment and the second and third applicants to life imprisonment. In so doing, the trial court relied on, inter alia, statements made by the applicants during the preliminary investigation stage, evidence that they had given during the reconstruction of events and identification procedures, statements of witnesses and certain co-defendants, fake identity cards, and documents seized during searches. In that connection, the trial court found it established that the first applicant had carried out (i) seven counts of murder, (ii) twelve counts of armed robbery, (iii) two counts of attempted robbery, (iv) five counts of aggravated assault, and a further count of throwing a bomb at the garden of the Istanbul State Security Court.
3. On 11 March 2011 the Court of Cassation upheld the trial court’s judgment.
THE COURT’S ASSESSMENT
4. The applicants complained that they had not had a fair trial owing to (i) the systemic restriction imposed on their right of access to a lawyer, in accordance with Law no. 3842, while in police custody, (ii) the trial court’s use of the evidence that they had allegedly given under duress and without a lawyer being present while in police custody, and (iii) the trial court’s alleged lack of independence and impartiality on account of the criminal complaint filed by the members of the bench against the second applicant’s lawyer.
5. The second and third applicants’ complaint concerning the trial court’s use of the evidence that they had reportedly given under duress 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 Government submitted that it had not been established that the findings contained in medical reports drawn up in respect of the second and third applicants had been the result of acts carried out by police officers.
7. The second and third applicants maintained their complaints.
8. The general principles regarding the use in criminal proceedings of evidence obtained in breach of Article 3 of the Convention may be found in Gäfgen v. Germany ([GC], no. 22978/05, §§ 165-67, ECHR 2010). Moreover, the absence of an admissible Article 3 complaint does not, in principle, preclude the Court from taking into consideration an applicant’s allegations that 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 Aydın Çetinkaya v. Turkey, no. 2082/05, § 104, 2 February 2016, and Mehmet Duman v. Turkey, no. 38740/09, § 42, 23 October 2018).
9. The Court observes that the medical report issued on 14 March 1997 in respect of the second applicant noted the existence of hyperaemia on his inner thighs. Similarly, the medical report issued on 23 May 1998 in respect of the third applicant indicated that he had scratches on his eyes and wrists and that he had complained of pain in his right shoulder and the left side of his chest, as well as of a headache. However, the Government failed to explain the origins of the findings contained in those reports, which had been issued immediately after the applicants’ time in police custody. Neither the trial court nor the Court of Cassation shed any light on this crucial aspect or examined the matter in accordance with the guarantees set out in Article 6 of the Convention.
10. Accordingly, the Court concludes that the admissibility, reliability, accuracy and authenticity of the evidence given by the second and third applicants while in police custody was tainted, since the evidence in issue had been taken against their will, as demonstrated by the above-mentioned medical reports.
11. That being the case, and having regard to the fact that the domestic courts used the above-mentioned evidence to convict the second and third applicants, the Government’s argument that there had been other evidence capable of maintaining the safety of their 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 second and third applicants was prejudiced by the admission of the evidence that they had given against their will while in police custody.
12. There has accordingly been a violation of Article 6 § 1 of the Convention in respect of the second and third applicants.
13. In view of this finding, the Court does not consider it necessary to examine the admissibility and merits of the second and third applicants’ remaining complaints under Article 6 of the Convention, including the trial court’s alleged lack of independence and impartiality on account of the criminal complaint filed by the members of the bench against the second applicant’s lawyer.
14. The Government raised a plea of non-exhaustion of domestic remedies, arguing that the first applicant, in his appeal to the Court of Cassation, had failed to raise his complaint concerning the alleged denial of legal assistance and the trial court’s use of the evidence he had given in the absence of a lawyer. The complaint had thus to be rejected.
15. The Court has already examined a similar objection in previous cases and dismissed it (see, among many other authorities, Mehmet Zeki Çelebi v. Turkey no. 27582/07, § 39, 28 January 2020). The Court discerns no element in the present case capable of persuading it to reach a different conclusion. Accordingly, the Court dismisses the Government’s objection.
16. 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.
17. The first applicant maintained his complaint.
18. The Government pointed out that the statements that the first applicant had made to the police after his first arrest in 1997 had not been self-incriminating and that, in any event, there had been abundant evidence to support his conviction. Accordingly, the evidence given by the applicant in the absence of a lawyer had had no adverse impact on the fairness of his trial.
19. The Court reiterates that the general principles regarding restrictions on the right of access to a lawyer and the manner in which their impact on the overall fairness of the criminal proceedings should be assessed may be found in Beuze v. Belgium ([GC], no. 71409/10, §§ 119-50, 9 November 2018).
20. In the present case, the first applicant’s access to a lawyer was restricted by virtue of Law no. 3842 and was as such a systemic restriction applicable at the time of his arrest (see Salduz v. Turkey [GC], no. 36391/02, § 56, ECHR 2008). There were no compelling reasons for restricting the first applicant’s right of access to a lawyer on a systemic basis while he was in police custody (see Mehmet Zeki Çelebi, cited above, §§ 55-56). The Court must therefore apply “very strict scrutiny” to its fairness assessment (ibid., § 57).
21. The Court further observes that the first applicant was arrested for the first time in 1997 after he had been caught in flagrante delicto following a shooting during which he had killed a police officer, M.U., and injured another one. It is important to note that the applicant exercised his right to remain silent in his police interview and denied having killed a police officer in his statements to the public prosecutor and the investigating judge, despite the fact that he had not benefitted from the assistance of a lawyer during any of those steps. Moreover, at a hearing held on 15 April 1999, the applicant admitted to having killed the police officer in question and the trial court, in its reasoned judgment, does not appear to have accorded any specific weight to the previous statements made in the absence of a lawyer when convicting the applicant (see Pervane v. Turkey, no. 74553/11, §§ 26-33, 8 September 2020). In such circumstances, the Court cannot conclude that the overall fairness of the criminal proceedings against the first applicant was irremediably prejudiced on account of the systemic restriction imposed on his right of access to a lawyer during his first arrest.
22. Conversely, when the first applicant was arrested for a second time in 1998 (following his escape from the prison in which he had been detained), he was denied legal assistance when he gave statements to the police and the public prosecutor and when he was made to take part in investigative acts, which resulted in his giving self-incriminating evidence. The trial court later admitted those statements in evidence and relied on them along with numerous other items of evidence in convicting the first applicant under Article 146 of the previous Criminal Code.
23. In so doing, however, the trial court examined neither the admissibility of the evidence given by the first applicant in the absence of a lawyer nor the circumstances in which those statements had been given before using them to secure his conviction (see Beuze, cited above, §§ 171‑74). The Court of Cassation likewise dealt with this issue in a formalistic manner and failed to remedy this shortcoming. The Court has already held that where the domestic courts had found that an applicant’s conviction had been justified on the basis of items of evidence other than those gathered in the absence of a lawyer, this was not a substitute for their failure to assess whether the overall fairness of the proceedings had been prejudiced by the absence of a lawyer (see Brus v. Belgium, no. 18779/15, § 34, 14 September 2021). This conclusion is a fortiori applicable to the present case, where the domestic courts made no such assessment, let alone an insufficient one, either on the question whether the evidence other than that given by the applicant in the absence of a lawyer was sufficient to justify his conviction or on the impact which the absence of a lawyer had on the overall fairness of the criminal proceedings against him.
24. Accordingly, the systemic restriction on the first applicant’s right of access to a lawyer in relation to his second arrest and the national courts’ failure to carry out a Convention-compliant examination vis-à-vis that shortcoming and to provide the procedural safeguards capable of offsetting the adverse effects of that restriction were sufficient to prejudice the overall fairness of the criminal proceedings to an extent that is incompatible with Article 6 of the Convention.
25. Bearing in mind that it is not the Court’s task in such a case to embark on an assessment of evidence so as to determine whether a given procedural shortcoming did or did not irretrievably prejudice the overall fairness of the proceedings, the Court concludes that there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention in so far as the first applicant’s second arrest is concerned.
26. In view of this finding, the Court does not consider it necessary to examine the admissibility and merits of the first applicant’s remaining complaints under Article 6 of the Convention, including the trial court’s alleged lack of independence and impartiality on account of the criminal complaint filed by the members of the bench against the second applicant’s lawyer.
APPLICATION OF ARTICLE 41 OF THE CONVENTION
27. The applicants each claimed 50,000 euros (EUR) in respect of non-pecuniary damage.
28. The Government contested those claims.
29. The Court considers that the most appropriate form of redress would be the retrial of the applicants, in accordance with the requirements of Article 6 of the Convention, should they so request. It further considers that given the circumstances of the instant case, the finding of a violation constitutes in itself 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 Ayetullah Ay v. Turkey, nos. 29084/07 and 1191/08, § 203, 27 October 2020). Thus, the Court makes no award under this head.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
Done in English, and notified in writing on 13 June 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Dorothee von Arnim Pauliine Koskelo Deputy Registrar President
APPENDIX
List of applicants:
Application no. 60237/11
No.
Applicant’s Name
Year of birth
Nationality
Place of residence
Tamer TUNCER
1971
Turkish
Kocaeli
Nuri AKALIN
1977
Kandıra
Mete TUNCER
1969
Istanbul
