The removal of the lawyer from the police because he informed the accused of his rights to silence and non-self-incrimination. The active and guaranteeing role of the lawyer in criminal proceedings is important.

JUDGMENT

Soytemiz v. Turkey 27.11.2018 (no. 57837/09)

see here   

SUMMARY

Criminal proceedings for the offense of assisting in the illegal organization of the Turkish Revolutionary Party. The role of advocates. Right to silence and non-self-incrimination in the pre-trial proceedings.

The removal and replace the officially appointed lawyer of the accused because he has informed him of his rights to silence and non-self-incrimination. The police forced the accused in self-incriminating statements in the absence of his lawyer. The national courts condemned him in absentia, and his lawyer, on the basis of these statements in court. According to the European Court of Human Rights, there was no basis in Turkish law to allow the police to expel and replace a officially appointed lawyer, nor did they have any compelling reasons for doing so. The use of the self-incriminating statements at issue, without them being subject to review by the Court or the necessary procedural safeguards, unjustifiably infringed the applicant’s right to silence and non-self-incrimination, and also undermined the proceedings for the administration of justice as a whole.

The role of lawyers in the pre-trial process guaranteeing the rights of suspects and defendants is important. The role of advocates should be active in helping the accused or suspect. If the suspected or accused person requests legal assistance for his testimony, the police preliminary investigation should be postponed until a lawyer is present. Infringement of Article 6 of the ECHR.

PROVISIONS 

Article 6§ 1

Article 6 §3 (c)

PRINCIPAL FACTS 

The applicant, Hakan Soytemiz, is a Turkish national who was born in 1971 and lives in Çorum
(Turkey).

The case concerned the police removing Mr Soytemiz’s officially appointed lawyer when the latter
had reminded him of his right to remain silent and advised him not to answer a certain question or
respond in a certain way.

On 17 March 2004 Mr Soytemiz was arrested on suspicion of aiding and abetting an illegal
organisation, the TDP (Turkish Revolutionary Party). The day after he agreed to a defence lawyer,
A.E.D., representing him. During the police interview, A.E.D. intervened alleging that the police
officers were recording phrases that had not been said by Mr Soytemiz and reminded him his right
to remain silent.

The police officers took A.E.D. out of the interview room allegedly under threat and would not allow
him to represent the applicant any more. According to Mr Soytemiz the police officers then coerced
him into signing self-incriminating statements which he had made while his lawyer was present, by
indicating that they would involve his brother in the case if he refused to sign.

On 20 March 2004 at the request of the police, a new lawyer was appointed for Mr Soytemiz. On the
same day, the police resumed the interview and took additional statements from Mr Soytemiz in the
presence of his new lawyer. The applicant once again denied his affiliation to an illegal organisation,
but stated that M.K. had stayed at his house on several occasions.

On 29 March 2004 the public prosecutor filed a bill of indictment against Mr Soytemiz, charging him
with aiding and abetting an illegal organisation. Subsequently, he was remanded in custody. At a
hearing held on 24 November 2004 the applicant gave evidence in the presence of his lawyer and
denied the charges against him, arguing that he had not aided any member of an armed
organisation. He denied his statements to the police, stating that they had frequently recorded
things he had not said, as a result of which his lawyer had confronted them and had then been
removed from the interview. He also maintained that the police had added to his statements the
fact that he had passed the identity information of his brother to M.K.

On 16 March 2006 the Erzurum Assize Court acquitted Mr Soytemiz, finding that there was
insufficient evidence to convict him. However, the judgment was quashed by the Court of Cassation
in November 2006. The case was accordingly remitted to the Erzurum Assize Court. On 26 January
2007 the forthcoming hearing date was served on the secretary of the applicant’s lawyer. At a
hearing held on 24 December 2007 Mr Soytemiz made his final submissions to the Erzurum Assize
Court. The court notified him that the next hearing would take place on 27 December 2007. It then
convicted the applicant as charged on 27 December 2007 and sentenced him to three years’
imprisonment in the absence of both him and his lawyer. The court relied on his partial confession,
the false identity card drawn up in his brother’s name, the arrest and identification reports. The
court held that the applicant had harboured a member of an illegal organisation, M.K., and had
provided him with the identity information of his brother. It further noted that in February 2004
police officers had arrested M.K. at the airport in possession of a false identity card in Mr Soytemiz’s
brother’s name. In his appeal, the applicant alleged that he had not been notified of the hearing
date and argued that he had been convicted on the basis of abstract police statements obtained
under coercion. The Court of Cassation still upheld his conviction.

Relying in particular on Article 6 § 3 (c) (right to a fair trial and right to legal assistance of own
choosing) the applicant complained that the police had unlawfully removed his officially appointed
lawyer and had coerced him into making incriminatory statements in the absence of that lawyer
which had later been used by the trial court to convict him.

THE DECISION OF THE COURT

The role of the lawyer in criminal proceedings

The Court recalls that the right of everyone “charged with a criminal offence” to be effectively defended by a lawyer requires that, as a rule, access to a lawyer should be provided as from the moment that a “criminal charge” exists within the meaning of the Court’s case-law. The Court has also recognised that the presence of a lawyer during the investigative actions, including police questioning, is an inherent aspect of the safeguard enshrined in Article 6 § 3 (c) of the Convention  as it is difficult to see how the specific services associated with “legal assistance”, which Article 6 § 3 (c) of the Convention speaks of, may be exercised in the absence of a lawyer.

Therefore, the right to be assisted by a lawyer requires not only that the lawyer is permitted to be present, but also that he is allowed to actively assist the suspect during,inter alia, the questioning by the police and to intervene to ensure respect for the suspect’s rights as a person charged with a criminal offence should be able to obtain the whole range of services specifically associated with legal assistance, not only in the course of trial but also during the pre-trial stage given its particular importance for the preparation of the criminal proceedings.

 Moreover, the right to be assisted by a lawyer applies throughout and until the end of the questioning by the police, including when the statements taken are read out and the suspect is asked to confirm and sign them, as assistance of a lawyer is equally important at this moment of the questioning. The lawyer’s presence and active assistance during questioning by police is an important procedural safeguard aimed at, among other things, preventing the collection of evidence through methods of coercion or oppression in defiance of the will of the suspect and protecting the freedom of a suspected person to choose whether to speak or to remain silent when questioned by the police.

The Court also recalls that the police are, in principle, under an obligation to refrain from or adjourn questioning in the event that a suspect has invoked the right to be assisted by a lawyer during the interrogation until a lawyer is present and is able to assist the suspect. The same considerations also hold true in case the lawyer has to – or is requested to – leave before the end of the questioning of the police and before the reading out and the signing of the statements taken.

Turning back to the circumstances of the present case, the police terminated the interview of the applicant and took the applicant’s lawyer out of the interview room. This was done after the lawyer had tried to assist the applicant during the questioning and after the lawyer had alleged that the police were recording phrases that had not been said by the applicant. It was only after the lawyer had left the interview room and the applicant was no longer assisted by a lawyer that the applicant was made to sign the interview record, according to the applicant as a result of coercion from the police. In other words, the statements were signed by the applicant in the absence of the lawyer chosen by him. In these circumstances, the Court will treat the present application as one of denial of access to a lawyer and apply the principles developed in Ibrahim and Others.

(a) Whether there were compelling reasons to restrict the applicant’s right to a lawyer

In circumstances such as those obtaining in the present case, the Court will first ascertain whether there were compelling reasons to restrict the applicant’s right of access to a lawyer which took the form of the removal and replacement of the applicant’s lawyer A.E.D. on 18 March 2004. In that connection, it notes that the Government did not dispute the applicant’s contention that the removal had been unlawful as there was no basis in Turkish law allowing the police to remove and replace an officially appointed lawyer. At this point, the Court points to Article 136 § 3 of the former Code of Criminal Procedure, in force at the time of the applicant’s interview, which clearly stipulated that “… legal assistance during the taking of a statement or during questioning shall not be impeded or restricted at any stage of the investigation, including investigations carried out by the police.”

In the instant case, however, the officially appointed lawyer was removed and replaced for what appears to be a lawful exercise of his profession, a fact which has not been contested by the Government.

In the same vein, the Court also attaches importance to the fact that the Fatih public prosecutor indicted the police officers, inter alia, for their interference with the applicant’s questioning and charged them with misconduct in office on the basis of those acts.

 In view of the above, the Court considers that the Government have failed to demonstrate that there were compelling reasons for the removal and replacement of the applicant’s officially appointed lawyer.

Consequently, the Court considers that the use by the trial court of the applicant’s first statements to the police without subjecting them to scrutiny or operating the necessary procedural safeguards unduly encroached upon the applicant’s right to silence and privilege against self-incrimination, irretrievably prejudiced his defence rights and undermined the fairness of the proceedings as a whole.

The Court therefore finds that there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention.

Just satisfaction: EUR 1,670 (costs and expenses)(echrcaselaw.com editing). 


ECHRCaseLaw

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