z dnia 24 marca 2015 r.
Application no. 21038/09
Dilaver GÖRÜR and Mehmet Ali İNCESU
The European Court of Human Rights (Second Section), sitting on 24 March 2015 as a Committee composed of:
Nebojša Vučinić, President,
Egidijus Kūris, judges,
and Abel Campos, Deputy Section Registrar,
Having regard to the above application lodged on 12 March 2009,
Having deliberated, decides as follows:
THE CIRCUMSTANCES OF THE CASE
1. The applicants, Mr Dilaver Görür and Mr Mehmet Ali İncesu, are Turkish nationals who were born in 1967 and 1973 respectively and live in Istanbul. They are represented before the Court by Mr İ. Akmeşe, a lawyer practising in Istanbul.
A. The applicants' arrest and detention
1. The first applicant, Dilaver Görür
2. On 13 November 2003 Dilaver Görür was arrested and taken into police custody on suspicion of affiliation to the PKK (the Kurdistan Workers' Party)/KADEK (Kurdistan Freedom and Democracy Congress), an illegal organisation.
3. On 14 November 2003, prior to effecting the arrest, the police officers searched the applicant's house and found various magazines and certain books written by Abdullah Öcalan, leader of the PKK.
4. On 15 November 2003 Mr Görür was interrogated at the Anti–Terrorism Branch. The official report drawn up by the police and the record of his statement, which were signed by the applicant, reveal that he refused the assistance of a lawyer. In his statement, the applicant explained that he had been a member of HADEP (the People's Democracy Party) until March 1997 and that he had served as the president of the local youth branch of HADEP for approximately five months. He also admitted that on one occasion, he had acted as a messenger between two PKK members.
5. On 17 November 2003 the applicant was brought before the Public Prosecutor at Istanbul State Security Court. The applicant, having been assisted by a lawyer, denied his police statement alleging that it had been extracted under psychological duress.
6. On the same date, he was taken before the investigating judge at Istanbul State Security Court. In the absence of a lawyer, the applicant admitted that he had been a member of HADEP until March 1997 but denied his affiliation to the PKK. He also denied his police statement, especially regarding his presidency of the local youth branch of HADEP. The investigating judge ordered his remand in custody.
2. The second applicant, Mehmet Ali İncesu
7. On 14 November 2003, Mehmet Ali İncesu was arrested and taken into police custody on suspicion of affiliation to the PKK /KADEK.
8. On 14 November 2003, the applicant was interviewed by the police at the Anti-Terrorism Branch. Before questioning, he was reminded of his rights, including the right to benefit from legal assistance. The official report, prepared by the police, and his record of statement, both signed by the applicant, reveal that he refused the assistance of a lawyer. In his statement he denied any involvement with the PKK or with any other illegal organisation.
9. On 17 November 2003, the applicant was brought before the Public Prosecutor at Istanbul State Security Court where he was advised of his right to remain silent and to request a lawyer. However, having refused the assistance of a lawyer, he simply repeated his previous police statement.
10. There is no information in the case file concerning Mr İncesu's interrogation by the investigating judge. It appears from the documents that he was released after being questioned.
B. The trial
11. On 4 December 2003, the Public Prosecutor at Istanbul State Security Court filed an indictment with that court against the applicants and three other persons, accusing Mr Görür with membership of the PKK/KADEK and Mr İncesu with aiding and abetting that illegal organisation.
12. The case against the applicants was subsequently transferred to Istanbul Assize Court following the abolition of State Security Courts by Law no. 5190 of 16 June 2004.
13. On 13 February 2009, the Twelfth Chamber of the Istanbul Assize Court delivered its judgment convicting both applicants of aiding and abetting the PKK/KADEK.
14. On 17 February 2009 the applicants appealed against the first–instance court's judgment. İn a general manner the applicants alleged that the judgment of the first-instance court was erroneous and unlawful in respect of procedural and substantial aspects.
15. On 27 April 2010 the Court of Cassation upheld the judgment of the Istanbul Assize Court.
16. The applicants complained that the length of the criminal proceedings against them had been incompatible with the "reasonable time" requirement of Article 6 § 1 of the Convention.
17. The applicants further maintained under Article 6 § 3 (c) of the Convention that their defence rights had been violated as they had been denied access to a lawyer during their detention in police custody.
18. Lastly, the applicants contended under Article 13 of the Convention that they had not been provided with any effective remedies whereby they could challenge the alleged excessive length of the criminal proceedings in question.
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
A. Right to access to a lawyer
19. The applicants complained that they had been denied a fair hearing as a result of the domestic courts' reliance on statements obtained in the absence of a lawyer during their detention in police custody.
20. The Government maintained that the applicants had not exhausted domestic remedies, as required by Article 35 § 1 of the Convention, since they had not raised their complaints of alleged lack of access to a lawyer before the national courts.
21. The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges those seeking to bring a case against the State before an international judicial organ to use first the remedies provided by the national legal system, thus dispensing States from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal systems (see, among many others, Akdivar and Others v. Turkey, 16 September 1996, § 65, Reports of Judgments and Decisions 1996–IV, and Vučković and Others v. Serbia [GC], no. 17153/11, § 70, 25 March 2014). The obligation to exhaust domestic remedies therefore requires an applicant to make normal use of remedies which are available and sufficient in respect of his or her Convention grievances. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness. To be effective, a remedy must be capable of directly redressing the impugned state of affairs and must offer reasonable prospects of success (see Mocanu and Others v. Romania [GC], nos. 10865/09, 45886/07 and 32431/08, §§ 221 and 222, ECHR 2014 (extracts)). In order to comply with the rule, normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged (see Assenov and Others v. Bulgaria, 28 October 1998, § 85, Reports 1998–VIII, and mutatis mutandis, Ahmet Sadık v. Greece, 15 November 1996, §§ 27–34, Reports 1996–V).
22. It is clear from the documents before the Court that the applicants had raised their complaint of a lack of assistance of a lawyer before the first instance court. In a similar manner the applicants were able to bring their complaints, as well as all the evidence they wished in order to support their claims, to the attention of the Court of Cassation during the proceedings, but they failed to do so, if only implicitly. In such circumstances, the Court upholds the Government's preliminary objection (Association Les Témoins de Jéhovah v. France (dec.), no. 8916/05, 21 September 2010).
23. It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
B. Length of the criminal proceedings
24. The applicants complained that the length of the proceedings had been incompatible with the principle of the "reasonable time" requirement, laid down in Article 6 § 1 of the Convention, which reads as follows:
"In the determination of ... any criminal charge against him everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal..."
25. The Government contested the allegations.
26. The Court recalls that in its decision in the case of Turgut and others v. Turkey (no. 4860/09, 26 March 2013), it declared a new application inadmissible on the ground that the applicants had failed to exhaust the domestic remedies as a new domestic remedy had been envisaged. In so doing, the Court in particular considered that this new remedy was, a priori, accessible and capable of offering a reasonable prospect of redress for complaints concerning the length of proceedings.
27. It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
28. The applicants also complained that there had been no domestic remedy available under Turkish law whereby they could challenge the alleged excessive length of the criminal proceedings in question:
"Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity."
29. The Government contested the allegations.
30. The Court recalls that it has also held that the Compensation Commission established by Law no. 6384 provides the applicants with a remedy within the meaning of Article 13 of the Convention, to complain about the length of proceedings for the purposes of Article 6 § 1 relating to all applications pending before the Court, but not yet communicated to the respondent Government, before 23 September 2012 (see Turgut and Others, cited above, § 59).
31. It follows that this part of the application is manifestly ill–founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
Declares the application inadmissible.
Done in English and notified in writing on 16 April 2015.