Salduz v. Turkey (36391/02)
GRAND CHAMBER JUDGMENT SALDUZ v. TURKEY
The European Court of Human Rights has today delivered at a public hearing its Grand Chamber judgment1 in the case of Salduz v. Turkey (application no. 36391/02).
The Court held unanimously that there had been:
- a violation of Article 6 § 3 (c) (right to legal assistance) of the European Convention on Human Rights in conjunction with Article 6 § 1 (right to a fair trial) on account of the applicant’s lack of legal assistance while he was in police custody;
- a violation of Article 6 § 1 (right to a fair trial) in respect of the non-communication to the applicant of the written opinion of the Principal Public Prosecutor at the Court of Cassation.
Under Article 41 (just satisfaction) of the Convention, the Court considered that the most appropriate form of redress, provided the applicant so requested, would be a retrial in compliance with the requirements of Article 6 § 1. As to the remainder, it awarded the applicant 2,000 euros (EUR) in respect of non-pecuniary damage. EUR 1,000 was awarded for costs and expenses. (The judgment is available in English and French.)
Principal facts
The applicant, Yusuf Salduz, is a Turkish national who was born in 1984 and lives in İzmir (Turkey).
He complained that he had been denied legal assistance while in police custody and that he had not had access to the written opinion of the Principal Public Prosecutor at the Court of Cassation.
On 29 May 2001 the applicant was arrested on suspicion of having participated in an illegal demonstration in support of the imprisoned leader of the PKK (the Kurdistan Workers’ Party, an illegal organisation). He was also accused of hanging an illegal banner from a bridge.
On 30 May 2001 the police took a statement from the applicant, without a lawyer being present, in which he admitted having taken part in the demonstration and having written the words on the banner. The applicant subsequently denied the content of his police statement, alleging that it had been extracted from him under duress. The investigating judge remanded the applicant in custody, at which point he was allowed to see a lawyer.
Before the İzmir State Security Court, the applicant again denied the content of his police statement, alleging that it had been extracted from him under duress.
On 5 December 2001 the State Security Court convicted the applicant for aiding and abetting the PKK and sentenced him to four years and six months’ imprisonment. His sentence was later reduced to two and a half years’ imprisonment as he had been under 18 at the time of the offence.
In giving its decision the State Security Court relied on the statements the applicant had given to the police, to the public prosecutor and to the investigating judge. It also took into account the statements made by his co-accused to the public prosecutor and two other pieces of evidence. It concluded that the applicant’s confession to the police had been authentic.
On 27 March 2002 the Principal Public Prosecutor at the Court of Cassation submitted his written opinion to that court, calling for the judgment of the İzmir State Security Court to be upheld. Neither the applicant nor his representative were given access to that opinion. On 10 June 2002 the Court of Cassation dismissed an appeal by the applicant.
Procedure and composition of the Court
The application was lodged with the European Court of Human Rights on 8 August 2002 and declared partly inadmissible on 28 March 2006.
In a Chamber judgment of 26 April 2007 the Court held unanimously that there had been a violation of Article 6 § 1 of the Convention on account of the non-communication to the applicant of the Principal Public Prosecutor’s written opinion and, by five votes to two, that there had been no violation of Article 6 § 3 (c) on account of the applicant’s lack of legal assistance while in police custody.
On 20 July 2007 the applicant requested that the case be referred to the Grand Chamber (Article 432 of the Convention). On 24 September 2007 a panel of the Grand Chamber decided to accept his request.
A hearing took place in public in the Human Rights Building, Strasbourg, on 19 March 2008.
Judgment was given by the Grand Chamber of 17 judges, composed as follows:
Nicolas Bratza (British), President,
Christos Rozakis (Greek),
Josep Casadevall (Andorran),
Rıza Türmen (Turkish),
Rait Maruste (Estonian),
Vladimiro Zagrebelsky (Italian),
Stanislav Pavlovschi (Moldovan)
Alvina Gyulumyan (Armenian),
Ljiljana Mijović (citizen of Bosnia and Herzegovina),
Dean Spielmann (Luxemburger),
Renate Jaeger (German),
David Thór Björgvinsson (Icelandic),
Ján Šikuta (Slovak),
Ineta Ziemele (Latvian),
Mark Villiger (Swiss),
Luis López Guerra (Spanish),
Mirjana Lazarova Trajkovska (citizen of “the former Yugoslav Republic of Macedonia”), judges,
and also Vincent Berger, Jurisconsult.
Summary of the judgment3
Complaints
Mr Salduz complained that, in connection with criminal proceedings against him, he had been denied access to a lawyer while in police custody and had not obtained, at the final stage of the proceedings before the Court of Cassation, a copy of the written opinion of the Principal Public Prosecutor at that court. He relied on Article 6 §§ 1 and 3 (c).
Decision of the Court
Access to a lawyer during police custody
The Court found that in order for the right to a fair trial under Article 6 § 1 to remain sufficiently “practical and effective”, access to a lawyer should be provided, as a rule, from the first police interview of a suspect, unless it could be demonstrated in the light of the particular circumstances of a given case that there had been compelling reasons to restrict this right. Even where compelling reasons might exceptionally justify denial of access to a lawyer, such restriction - whatever its justification - must not have unduly prejudiced the rights of the accused under Article 6. The rights of the defence would in principle be irretrievably prejudiced when incriminating statements made during a police interview without access to a lawyer were used as a basis for a conviction.
No justification was given by the Turkish Government for denying the applicant access to a lawyer other than the fact that this was provided for on a systematic basis by the relevant legal provisions. As such, this already fell short of the requirements of Article 6 in this respect.
The Court moreover observed in particular that the State Security Court had used the applicant’s statement to the police as the main evidence on which to convict him, despite his denial of its accuracy. For the Court, the applicant had undoubtedly been personally affected by the restrictions on his access to a lawyer, in that his statement to the police had ultimately been used for his conviction. Neither the assistance provided subsequently by a lawyer nor the adversarial nature of the ensuing proceedings could cure the defects which had occurred during police custody.
The Court lastly noted that one of the specific elements of the instant case was the applicant’s age. Having regard to a significant number of relevant international law materials concerning legal assistance to minors in police custody, the Court stressed the fundamental importance of providing access to a lawyer where the person in police custody was a minor.
In sum, the Court considered that, even though the applicant had had the opportunity to challenge the evidence against him at his trial and subsequently on appeal, the absence of a lawyer during his period in police custody had irretrievably affected his defence rights. There had therefore been a violation of Article 6 § 3 (c) in conjunction with Article 6 § 1.
Non-communication of the written opinion of the Principal Public Prosecutor at the Court of Cassation
The Court considered, for the reasons given by the Chamber in its judgment of 26 April 2007, that the applicant’s right to adversarial proceedings has been breached. There had therefore been a violation of Article 6 § 1.
Judge Bratza expressed a concurring opinion. Judges Rozakis, Spielmann, Ziemele and Lazarova Trajkovska expressed a concurring opinion and Judge Zagrebelsky expressed a concurring opinion joined by Judges Casadevall and Türmen. These are annexed to the judgment.
Note: The judgement states "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."
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.
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.
| Date | 20081127 |
|---|---|
| Article | 6(1), 6(3) |
| Decision | violation |