The restriction of the right of access to a lawyer at the pre-trial stage did not affect the overall criminal procedure and the fair trial

JUDGMENT

Pervane v. Turkey 08.09.2020  (app. no.  74553/11)

see here  

SUMMARY

Right of access to a lawyer at the pre-trial stage and a fair trial. Overall assessment of the process.

The applicant was arrested in an armed clash between PKK members and security forces, possessing a Kalashnikov rifle. At the pre-trial stage, under current law, he was not allowed access to a lawyer. He was convicted by domestic courts on the basis of his own confession that he was a member of the PKK and that he possessed a weapon at the time of his arrest.

The Court recognized that the deprivation of the right of access to a lawyer must be justified by compelling reasons. However, in the present case the ECtHR found that the applicant’s conviction was based on strong evidence and that the overall criminal proceedings were not affected by the systematic restriction of his right of access to a lawyer during the pre-trial stage.

It held that there was no violation of the right to a fair trial and the right to entrust the defense to a lawyer of his choice (Article 6 §§ 1 and 3 (c) of the ECHR).

PROVISIONS

Article 6§1

Article 6§3(c)

PRINCIPAL FACTS

The applicant, Fırat Pervane, is a Turkish national who was born in 1979. He is currently serving a life
sentence in Diyarbakır prison for his involvement in an armed clash with the security forces.

The case concerned an allegation of criminal proceedings being prejudiced because of a lack of
access to a lawyer.

On 12 November 1999 an armed clash broke out between the PKK (the Workers’ Party of Kurdistan,
an illegal armed organisation) and the security forces in Kurtalan. Mr Pervane was amongst the
injured PKK members and was arrested in possession of a Kalashnikov rifle.

While in custody, he made statements to the police and the public prosecutor explaining how he had
joined the PKK. Throughout the rest of the proceedings he continued to admit to being a member of
the PKK and carrying a weapon, but denied that he had used the rifle during the clash.

He was found guilty in 2009 of seeking to destroy the unity of the Turkish State and remove part of
the country from the State’s control. The courts concluded that he had committed an armed act, he
having been captured with his rifle with other PKK members.

Relying on Article 6 §§ 1 and 3 (c) (right to a fair trial/right to legal assistance of own choosing), Mr
Pervane alleged that the proceedings against him had been unfair because he was not assisted by a
lawyer during the pre-trial stage and that the statements thus taken had been used by the trial court
to convict him

THE DECISION OF THE COURT…

The Court notes that the 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 the applicant’s arrest. As a result, the applicant did not have access to a lawyer during the pre-trial stage.

The Court reiterates that restrictions on access to a lawyer for compelling reasons, at the pre-trial stage, 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.  When there are no compelling reasons for restricting the applicant’s right to a lawyer during the pre-trial stage, the Court must apply very strict scrutiny to its fairness assessment. The burden of proof thus falls on the Government, which must demonstrate convincingly that the applicant nevertheless had a fair trial as a whole. The Government’s inability to establish compelling reasons weighs heavily in the balance, and the balance may thus be tipped towards finding a violation of Article 6 §§ 1 and 3 . The Court observes firstly that it is not disputed between the parties that the applicant was injured during the clash between the PKK members and the security forces which resulted in the killing of ten PKK members and the arrest of fourteen others. Similarly, it has not been disputed that the applicant was arrested immediately thereafter with a Kalashnikov rifle in his possession, along with other PKK members, who were also arrested with arms and cartridges. Whilst the applicant denied having committed any “armed act”, a crucial element for his conviction under Article 125 of the then Criminal Code, he admitted throughout the proceedings that he had been a member of the PKK.

In view of the above, the legal question before the Court is whether the overall fairness of the criminal proceedings were prejudiced by virtue of the use of the statements the applicant had made in the absence of a lawyer for his conviction.

The Court further observes that although the applicant made incriminatory statements in the absence of a lawyer during the pre-trial stage as to his involvement in the PKK, he at no stage of the proceedings accepted that he had committed an armed act during the clash. As a result, the argument that the applicant’s conviction under Article 125 of the then Criminal Code in so far as it concerned his committing an armed act rested on the statements he had made in the absence of a lawyer cannot stand up to scrutiny. Indeed, as can be seen from the trial court’s reasoned judgment, its conclusion that the applicant had done so stemmed from the fact that he had been arrested in an injured state with a Kalashnikov rifle following an armed clash with the security forces. In other words, the trial court did not rely on the statements the applicant had made in the absence of a lawyer to establish his criminal responsibility for the armed clash .

Therefore, the Court cannot conclude that the use of the applicant’s statements taken in the absence of a lawyer for his conviction under Article 125 of the Convention irretrievably prejudiced the overall fairness of the proceedings against him.

In view of the above, although very strict scrutiny is to be applied to cases where there are no compelling reasons to restrict an applicant’s right to a lawyer, the Court considers that the Government have discharged the burden of demonstrating convincingly that the overall fairness of the criminal proceedings against the applicant were not prejudiced by the systemic restriction on his right to a lawyer during the preliminary investigation stage

There has therefore been no violation of Article 6 §§ 1 and 3 (c) of the Convention.

 

 


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