Systematically restricting the legal representation of the suspect in the pre trial proceedings: breach of the fair trial

JUDGMENT

Mehmet Zeki Çelebi v. Turkey  28.1.2020  (no. 27582/07)

see here 

SUMMARY

Fair trial and representation by a lawyer.

The applicant was arrested on charges of involvement in terrorist organization, extortion and premeditated homicide. At the pretrial stage he requested legal representation but was not required by law and his apology was in the absence of a lawyer. He was represented by a lawyer at the trial, but his pre-trial testimony, which had been absent, was taken into consideration in the conviction. The domestic courts have sentenced the applicant irrevocably to life in prison.

The Court recalls that representation by a lawyer during the preliminary investigation stage may be temporarily limited when there are “compelling reasons” for this.

In the present case, the ECtHR considers that there were no compelling reasons to limit the applicant’s right to be represented by a lawyer while in detention.

Finally, the Court found that the domestic courts had failed to exercise the procedural safeguards necessary to refuse representation by a lawyer when making depositions at the pre-trial stage and subsequent use of those depositions to secure his conviction,

It held that the fair trial in the whole proceedings against the applicant had been breached because of the fundamental procedural defect resulting from the systematic restriction of the right of representation by a lawyer at the pre-trial stage. Violation of Article 6 §§ 1 and 3 (c) of the Convention

PROVISIONS

Article 6§1

Article 6 § 3c

PRINCIPAL FACTS

The applicant, Mehmet Zeki Çelebi, is a Turkish national who was born in 1973 and lives in Van
(Turkey).

The case concerned his complaint that criminal proceedings against him for membership of a
terrorist organisation, the PKK (Workers’ Party of Kurdistan), for extortion and murder had been
unfair owing to the systemic restriction imposed on his right to a lawyer.
Throughout the criminal proceedings against him he changed his position on the accusations against
him.

When he was first arrested in 1999 and questioned by the police, he said that he had committed
extortion for the PKK on six occasions and had acted as a lookout during a murder. Before the public
prosecutor and investigating judge he admitted to three incidents of extortion and denied being
involved in the murder. Under a statutory ban in force he was not represented by a lawyer at this
stage.

During the trial itself, he was represented by a lawyer and retracted all his earlier statements.
However, in 2004 he decided to confirm them, asking to benefit from Law. 4959, which provided for
a reduction in his sentence if he gave information about his activities and other accused.

He then maintained for the next five years, up until his conviction in 2009, that he had been involved
in two extortion incidents and as lookout for the murder, but denied any criminal responsibility for
the latter. His conviction was based on his statements, those of his co-accused and the victims, as
well as reports from an identification parade. He was sentenced to life imprisonment.

On appeal, his lawyer unsuccessfully contested the use of his statements taken without a lawyer
present. In 2010 the Court of Cassation upheld the judgment of the first-instance court.

Relying on Article 6 §§ 1 and 3 (c) (right to a fair trial and right to legal assistance of own choosing),
Mr Çelebi complained about the restriction on his right to a lawyer while in police custody and the
subsequent use by the trial court of his statements taken without a lawyer present to convict him.

THE DECISION OF THE COURT…

The Court reiterates that access to a lawyer during the investigation phase may be temporarily restricted where there are “compelling reasons” for doing so. However, restrictions on access to legal advice are permitted only in exceptional circumstances, must be of a temporary nature and must be based on an individual assessment of the particular circumstances of the case

The Court notes at the outset that the applicant was denied access to a lawyer from 23 July to 1 August 1999 as a result of the statutory ban laid down in section 31 of Law no. 3842. As a result, he did not have access to a lawyer when he made his statements to the police, the public prosecutor and the investigating judge respectively

The Court reiterates that, unlike in Beuze where the restriction on the right of access to a lawyer stemmed from the absence of a legal provision in Belgian law, the applicant’s access to a lawyer in the present case was restricted by virtue of section 31 of Law no. 3842 and applied to anyone held in police custody in connection with an offence falling under the jurisdiction of the State Security Courts, irrespective of the individual assessment of the particular circumstances of each case. Reiterating that the existence of exceptional circumstances which satisfy the substantive requirement of compelling reasons does not automatically provide adequate justification for limiting suspects’ access to legal advice, the Court notes that a statutory restriction of this kind, which excludes any individual assessment, cannot stand up to scrutiny in relation to the procedural requirements of the concept of “compelling reasons” 1

Hence, the Court considers that there were no compelling reasons to restrict the applicant’s right to a lawyer while in police custody.

Turning to the circumstances of the case at hand, the Court reiterates that it has already found violations of Article 6 of the Convention in respect of two other individuals who had also been tried and convicted in the same set of criminal proceedings as the applicant in the instant case, on the grounds that the national courts failed to operate the necessary procedural safeguards in respect of the procedural shortcomings complained of by the applicants, namely the denial of access to a lawyer when making statements to the police and the subsequent use of those statements to secure their conviction.

In sum, the prejudice caused to the overall fairness of the proceedings by the restriction of the right to a lawyer cannot be undone merely by an applicant’s confirmation of his or her earlier statements given in the absence of a lawyer at a later stage and in the presence of a lawyer, unless that flaw is sufficiently addressed and remedied by the national courts, that is to say by exclusion of statements taken without a lawyer present

Τhe Court notes that the trial court neither examined the admissibility of the evidence given by the applicant in the absence of a lawyer nor the circumstances in which those statements had been given before using them in securing the applicant’s conviction.

It further notes that contrary to what the Government alleged, the applicant’s lawyer contested in his appeal the use of statements taken without a lawyer present. Nevertheless, the Court of Cassation also remained indifferent vis-à-vis this procedural defect as it did not carry out an assessment of the consequences of the absence of a lawyer at crucial points in the proceedings.

In view of the above, the Court is not convinced that the mere fact that the applicant confirmed his previous statements taken in the absence of a lawyer is sufficient to absolve the national courts from their crucial duty under Article 6 of the Convention to operate the necessary procedural safeguards in relation to the procedural defects or that such confirmation of itself had a compensatory effect rendering the proceedings fair as a whole.

As a result, the overall fairness of the proceedings against the applicant was tainted due to the fundamental procedural defect resulting from the systemic restriction of his right to a lawyer during the pre-trial stage, the national courts’ failure to remedy that shortcoming and the use they made of his statements taken in the absence of a lawyer to sentence him to life imprisonment, which is one of the heaviest penalties of the Turkish criminal justice system

Accordingly, the Court considers that there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention.


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