Invalid resignation of an illiterate accused of the right to a lawyer. Infringement of fair trial.

JUDGMENT

Akdağ v. Turkey 17.09.2019 (no. 75460/10)

see here 

SUMMARY

The case concerned access to a lawyer in police custody. The applicant alleged that she had
confessed to being a member of an illegal organisation after being threatened and ill-treated by the
police, without access to a lawyer.

Although the Court rejected as inadmissible the applicant’s complaint about her conviction on the
basis of police statements taken under duress because of lack of evidence of ill-treatment, it found
that the Government had failed to show that a printed “X” next to “no lawyer sought” on her
statement form had amounted to her validly waiving her right to a lawyer during custody. In point of
fact, as soon as she had had access to a lawyer at the end of her custody, she had retracted her
statements.

Nor was the Court satisfied with the national courts’ response to the applicant’s complaint. They had
neither examined the validity of the waiver nor the statements she had made to the police in the
absence of a lawyer. Such lack of scrutiny had not been remedied by any other procedural
safeguards, and the overall fairness of the proceedings against her had therefore been prejudiced.

PROVISION

Article 6

PRINCIPAL FACTS

The applicant, Hamdiye Akdağ, is a Turkish national who was born in 1974. When bringing her
application she was serving a sentence for being a member of an illegal organisation, the PKK/KADEK
(the Workers’ Party of Kurdistan).

Ms Akdağ was arrested near her home in November 2003 and was held in police custody for four
days for questioning. During this time she admitted her membership of the PKK/KADEK, giving a
detailed statement of her involvement and training in the illegal organisation. She was not assisted
by a lawyer, having indicated “no lawyer sought” with a printed “X” on her statement form.
However, she immediately retracted her statements to the police when brought before the public
prosecutor and investigating judge at the end of her custody and was given access to a lawyer. She
was also examined by a doctor and told him that the police had hit her on the head, and had
threatened to rape and kill her.

She maintained that position before the trial court, alleging that she had been forced into signing
her statements to the police and was, in any case, illiterate. She was ultimately found guilty of
membership of a terrorist organisation in 2009 and sentenced to six years and three months’ imprisonment. The court based its decision on her statements to the police. The Court of Cassation
upheld the conviction in 2010.

In the meantime, Ms Akdağ had lodged a formal complaint about police ill-treatment, but the
prosecuting authorities decided not to prosecute owing to lack of evidence.

THE DECISION OF THE COURT…

The Government argued that at the time of Ms Akdağ’s arrest there had no longer been a blanket
restriction in Turkey on the right of access to a lawyer in police custody of those accused of an
offence within the jurisdiction of State Security Courts. At the time it had therefore been possible for
such suspects to have access to a lawyer if they had asked for one. However, Ms Akdağ had
indicated on her statement form that she did not require legal assistance. The Government
therefore submitted that she had validly waived her right to a lawyer when giving statements to the
police.

The Court was of the view, on the other hand, that there had been weighty indications against the
conclusion that she had waived her right to a lawyer. First, she had immediately retracted her
statements to the police as soon as she had had access to a lawyer both before the public
prosecutor and the investigating judge, and had maintained that position before the trial court.
Furthermore, there had been no handwritten note on her statement form, which just had a printed
“X” next to the type-written “no lawyer sought”. Nor had the trial court carried out an assessment of
her allegation that she was illiterate.

Moreover, the Government had not shown that Ms Akdağ had specifically been informed about the
consequences of not requesting the assistance of a lawyer.

The Court therefore considered that the Government had failed to demonstrate that Ms Akdağ had
validly waived her right to a lawyer when giving statements to the police.

The Government had also failed to provide any compelling reasons to justify restricting Ms Akdağ’s
access to a lawyer during her custody, such as an imminent threat to life, liberty or physical integrity.
Lastly, despite the fact that Ms Akdağ had been represented by a lawyer throughout the trial, the
Court was not convinced that she had been able to meaningfully challenge the evidence used to convict and sentence her. In particular, the national courts had not conducted any examination at all of the validity of the waiver or of the statements she had made to the police in the absence of a lawyer. That lack of close scrutiny had not been remedied by any other procedural safeguards, making the applicant’s trial as a whole unfair.

There had therefore been a violation of Article 6 §§ 1 and 3 (c).

The Court declared inadmissible the applicant’s complaint concerning the use of her police
statements taken under alleged duress. It considered that she had failed to submit evidence to
prove that she had been subjected to ill-treatment in police custody. The two medical reports in her
case file, which she had neither challenged before the national courts nor this Court, had not
indicated any sign of ill-treatment on her body. Moreover, the prosecuting authorities had decided
not to prosecute owing to lack of evidence.

Just satisfaction (Article 41)

The Court held that the finding of a violation constituted in itself sufficient just satisfaction for the
non-pecuniary damage sustained by the applicant.

Separate opinion
Judge Bošnjak and Judge Yüksel expressed a concurring opinion which is annexed to the judgment.


ECHRCaseLaw

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