EHRM, 08-03-2022, nr. 10613/10

The application concerns the alleged breach of the applicants' right to freedom of assembly under Article 11 of the Convention on account of their conviction for having staged a protest in a courthouse, during which they chanted slogans, displayed a banner, threw leaflets around, and locked themselves in one of its corridors, thereby impeding hearings that were taking place. It further concerns the fairness of criminal proceedings against the applicants under Article 6 of the Convention owing to the alleged invalidity of their waiver of their right to a lawyer when making statements to the police during the preliminary investigation stage.

The applicants' personal details are set out in the appendix. The applicants were represented by Mr M. Erbil and Mrs N. Selçuk, lawyers practising in Istanbul.

The Government were represented by their Agent, Mr Hacı Ali Açıkgül, Head of the Department of Human Rights of the Ministry of Justice of the Republic of Turkey.

The facts of the case, as submitted by the parties, may be summarised as follows.

On 18 November 2003 at around 10.50 a.m. a group of twenty-three individuals, including the applicants, entered the corridor of the third floor of the Sultanahmet Courthouse in Istanbul, where the registries and hearing rooms of several courts were located, while some civilians and court officials were present in the same corridor. The group began chanting slogans such as ‘End the Isolation’ (‘Tecride Son’), ‘No to invasion’ (‘İşgale Hayır’), ‘Close İmralı Prison’ (‘İmralı Cezaevi Kapatılsın’), ‘We have not surrendered and we will not surrender’ (‘Teslim olmadık olmayacağız’), ‘Salute, salute a thousand salutes to İmralı’ ( ‘Selam, Selam, İmralıya Bin Selam’), ‘Freedom to Öcalan’ (‘Öcalan'a Özgürlük’) and ‘The messenger of peace is in İmralı’ (‘Barış elçisi İmralı'da’).

Subsequently, some members of the group closed the door to the corridor and locked themselves in the corridor by toppling metal cupboards behind the door. They then hung a large banner from one of the windows of the corridor and threw leaflets outside. The banner read: ‘A democratic solution to the Kurdish problem; İmralı Prison must be shut down’ (‘Kürt sorununa demokratik çözüm, İmralı Cezaevi kapatılsın’), and ‘Youth Initiative for Social Peace’ (‘Toplumsal Barış için Gençlik Girişimi’). The leaflets contained critical remarks concerning the policies of the governing Justice and Development Party. The applicants later submitted to the trial court that they had locked themselves in and that they had originally planned to make a press statement in front of the courthouse, but that they had entered the building owing to the rain. The applicants furthermore submitted to the trial court that they had attempted to go outside again to make the press statement, but that certain civilians had attacked them with a view to lynching them, forcing them to seek shelter in the closest corridor. The door of the corridor had then been shut behind them and as the door had only had one handle, they had not been able to open it from the corridor.

According to witness statements, the protesters warned other individuals present in the corridor and inside the offices that they were going to stage a protest but that there was no need to be afraid. It appears that some of the witnesses locked themselves in the hearing rooms and some in the registries during the protest by blocking the entrances to those rooms. The witnesses mainly reported hearing repetitive slogans being chanted outside in the corridor, but they reported that they had come to no harm. Similarly, the incident report of 18 November 2003 drawn up by the Deputy Public Prosecutor of Istanbul indicated that no material damage had been caused in the corridor or to its furniture.

The protesters, including the applicants, continued their actions for about an hour until the police broke in and arrested them. According to the Government's version of events the protestors resisted the officers during their arrest by locking arms, prompting the police to use tear gas to disperse them. The applicants contested that version of events, arguing that they had surrendered to the police but that they had nevertheless been beaten at the time of their arrest.

Following their arrest, the applicants were first taken to Haseki Hospital and then examined by the Forensic Medicine Institute. According to the medical reports added to the case file, all of the applicants, except for Mehmet Şahin, Özgür Tan and Mahmut Cengiz, presented signs of physical trauma, either at the beginning or at the end of their custody. In particular, even though the medical reports drawn up in respect of the applicants Ekrem Can and Fikret Avras at the beginning of their time in police custody did not note any signs of ill-treatment, the reports compiled at the end of that time concluded that they had been unfit — for a period of one day — for work.

Between 18 and 22 November 2003, the applicants were held in police custody on terrorism-related charges and were interviewed by the Anti-Terrorism branch of the Istanbul Security Directorate. According to some documents in the case file, most of the applicants met their lawyer before and after giving statements to the police. According to other forms bearing the signature of each applicant (save for the applicant Mehmet Şahin), the applicants chose to give their statements without the presence of a lawyer. Those forms also indicated that each applicant had been informed of his rights under Article 135 of the former Code of Criminal Procedure and that a copy of a form explaining their rights had been handed to each of them. The forms did not bear the time at which they had been signed, but the dates were recorded by hand.

The applicant Mehmet Şahin was the only applicant who requested the assistance of a lawyer during the taking of his statement by the police. A certain A.P., who is not one of the applicants, also appears to have requested the assistance of a lawyer. Both the applicant Mehmet Şahin and A.P. were interviewed in the presence of a lawyer and remained silent before the police. The officers involved in the questioning of Mehmet Şahin and A.P. were not the same as those involved in the questioning of the other applicants. The applicant Kerim Taştan also exercised his right to remain silent, without requesting the assistance of a lawyer.

The rest of the applicants gave statements to the police between 19 and 21 November 2003, in the absence of a lawyer. Their statements were transcribed on printed forms, the first page of which was filled in to indicate inter alia that they were suspected of, inter alia, acting on behalf of the PKK (the Workers' Party of Kurdistan), an illegal organisation. The same page also included a printed message that stated, inter alia, that the person being questioned had the right to remain silent and the right to choose a lawyer. It appears from the forms that all the applicants refused legal assistance, as on each of their forms the box entitled ‘No lawyer sought’ was marked with a printed ‘X’. Moreover, according to these records, all the applicants, except for one, also stated that they did not wish to have a lawyer or to remain silent.

The applicant Fikret Avras met a different lawyer respectively on 19 November 2003 at 10.35 a.m. and on 21 November 2003 at 9.30 p.m., and the applicant Ekrem Can met a lawyer on 19 November 2003 at 11.20 a.m.

The applicants, except for Kerim Taştan and Mehmet Şahin (who did not give statements to the police), acknowledged having wilfully participated in the protest, pursuant to decisions made by the council of the PKK. Many of the applicants also acknowledged having taken part in other protests organised in support of the PKK.

On 21 November 2003 the applicants Ekrem Can and Fikret Avras additionally participated in an ‘identity parade’ conducted with photographs (fotoğraftan teşhis) and the applicants Ekrem Can, Fikret Avras and Mahmut Cengiz were also taken to certain locations for a reconstruction of the events in question (yer gösterme), during which they were not assisted by a lawyer and acknowledged having been involved in throwing Molotov cocktails at police vehicles, throwing stones at public buses, and attacking a bank on different occasions.

The case file contains the copies of two separate handwritten records (tutanak). The first record read as follows:

The second record read as follows:

At the end of their period in police custody on 22 November 2003, the applicants were taken to the Forensic Medicine Institute for medical examination. It was found that the applicants Ekrem Can, Fikret Avras, Şenol Akyaz, Ahmet Işık, Güven Öztürk, Kerim Taştan, Muhlis Doğan, Yavuz Oğur, Esat Gezer and Abdulkerim Doğan bore marks of physical trauma on different parts of their bodies that were not life-threatening. Medical reports drawn up in respect of the applicants Ekrem Can and Fikret Avras indicated that they were unfit for work for one day, even though the medical reports compiled at the beginning of their custody indicated no such finding.

On 22 November 2003 the applicants gave statements to the public prosecutor in the presence of their lawyers. All the applicants, except for the applicant Muhlis Doğan, contested the version of events and the additional offences to which they had confessed when being interviewed by the police. In that connection, the applicants Fikret Avras and Mahmut Cengiz denied the accuracy of the records concerning the reconstruction of events. The applicants mainly stated that they had agreed to take part in a peaceful protest concerning the ‘Kurdish problem’ and that they had locked themselves in the corridor of the third floor of the courthouse for fear of being forcibly dispersed by the police. The respective lawyers of the applicants Ekrem Can, Fikret Avras, Yavuz Oğur and Osman Taşdemir informed the public prosecutor that they had not been allowed to be present at the police interviews of their clients or the reconstruction of events.

Subsequently, on the same day, the applicants were questioned by a judge of the Istanbul State Security Court. The applicants gave similar accounts of the event as those that they had given to the public prosecutor, affirming that they had had the intention of taking part in the making of a press statement in front of or inside the Sultanahmet Courthouse. As in his statements to the public prosecutor, the applicant Ekrem Can denied his affiliation with the group. The lawyer of Fikret Avras requested the judge to bear in mind the fact that he had not been allowed to be present during the taking of statements by the police from his client or during the reconstruction of events. At the end of the questioning, the judge placed all the applicants in pre-trial detention.

On 10 December 2003 the Istanbul public prosecutor filed a bill of indictment against the applicants and charged the applicants Ekrem Can, Fikret Avras, Mahmut Cengiz and Şenol Akyaz, with, inter alia, membership of a terrorist organisation (Article 168 of the former Criminal Code) and possessing and using explosive materials (Article 264 § 6 in fine of the former Criminal Code) and the rest of the applicants with aiding and abetting a terrorist organisation (Article 169 of the former Criminal Code). Furthermore, the public prosecutor charged all the applicants with ‘interrupting public services through coercion, distortion or the commission of unlawful acts’ (Article 188 § 5 in fine of the former Criminal Code).

At a hearing held on 19 April 2004, the applicants gave evidence to the Istanbul Assize Court (‘the trial court’). The applicant Ekrem Can reiterated the statements that he had given to the public prosecutor, asserting that he had become caught up in the protest by mere accident. He further denied any affiliation with the PKK and denied the charges.

The applicant Mahmut Cengiz acknowledged that the applicants had planned to make a press statement in front of the Sultanahmet Courthouse regarding the fact that Abdullah Öcalan was being held in isolation in İmralı Prison, adding that they had gone inside the building owing to the rain. He maintained that the police had kept him awake over the course of the three days that he had been held in custody and had forced him into signing certain documents; he did, owing to the refusal of the police to allow him to see his lawyer, despite his repeated requests.

The applicant Fikret Avras gave a similar version of events. He also submitted that he had been deprived of sleep during his time in police custody and that officers had slapped him every time that he had replied to their questions with a ‘no’. He further noted that he, Ekrem Can and Mahmut Cengiz had been taken to certain locations by car, and that one of the police officers had forcibly ejected him from the police vehicle and had then forced him — squeezing his arm — to admit while being recorded on video to committing crimes.

The rest of the applicants also stated that they had planned to peacefully make a press statement in front of the courthouse. All the applicants, except for the applicants Mehmet Şahin and Kerim Taştan (who had not given statements to the police), retracted the statements that they had given to the police. The rest of the applicants further stated to the trial court that they had been subjected to pressure or ill-treated while in police custody.

At the same hearing, the applicants' lawyers submitted that the incident had in fact comprised no more than the making of a simple press statement, and that the applicants should not have been charged with terrorism-related offences. They also submitted that even though they had been present at the police station during the time that the applicants had been held in custody, they had never been called by the police to take part in the interviews of their clients.

At a hearing held on 1 November 2004 a number of witnesses gave evidence. M.A.İ. stated that he had been waiting his turn to attend a hearing before a court when a noisy quarrel had broken out in the corridor. According to his statement, after the clamour in the corridor had escalated, the judge had discontinued the hearing, and the people in the hearing room had moved some cabinets behind the hearing room's door in order to securely block the entrance. M.A.İ. further stated that he and others had been confined in the hearing room for a further forty-five minutes. He also stated that the tear gas used to disperse the group had affected the people in the hearing room and that the judge had postponed the rest of the proceedings scheduled for that day. Another witness, G.İ., a clerk working for a court, attested that at around 10 a.m. two individuals had come into the registry of that court, stating that they would give a statement (in the corridor) and would not harm anyone. G.İ. stated that the group had first chanted PKK-related slogans and the name of Abdullah Öcalan. She and the other people who had barricaded themselves into the hearing room had then unblocked the door and left the office after about an hour; she had not identified any damage in the corridor.

At the hearing held on 1 August 2005, the trial court ordered the release of the applicants, except for the applicants Ekrem Can, Fikret Avras, Mahmut Cengiz and Şenol Akyaz.

On 26 December 2006 the Istanbul Assize Court delivered its judgment in the case and found that the applicants had chanted certain slogans (see paragraph 5), waved a banner from the windows (see paragraph 6) and closed the door to the corridor, preventing officials from entering by placing metal cupboards behind the door to form a barricade, thereby trapping the lawyers and the court personnel and hampering them in the performance of their duties. On this basis, the trial court found all the applicants guilty under Article 113 § 1 of the Criminal Code of ‘interrupting public services through coercion, distortion or the commission of unlawful acts’, and sentenced each of them to one year and eight months' imprisonment. On the basis of the same acts, all the applicants, except for Ekrem Can, Fikret Avras, Mahmut Cengiz and Şenol Akyaz, were also found guilty under Article 169 of the former Criminal Code of aiding and abetting an armed gang, and were each sentenced to three years and nine months' imprisonment.

The trial court further found the applicants Ekrem Can, Fikret Avras, Mahmut Cengiz and Şenol Akyaz guilty of membership of an armed terrorist organisation under Article 314 § 2 of the Criminal Code, and sentenced each of them to six years and three months' imprisonment on the basis of their actions within the courthouse and on the basis of certain other activities, such as procuring new members for the PKK (Şenol Akyaz) and throwing Molotov cocktails (Ekrem Can, Fikret Avras, Mahmut Cengiz), which had been proved by the statements they had made during the police interviews and the reconstruction of events. On the basis of those acts, the trial court furthermore convicted Ekrem Can on two counts of possessing (Article 174 of the Criminal Code) and using explosive materials (Article 170 § 1 (c) of the Criminal Code) and sentenced him to an additional term of eight years and four months' imprisonment and a judicial fine. Lastly, Mahmut Cengiz and Fikret Avras were also convicted of possessing and using explosive materials, and were each sentenced to four years and two months' imprisonment and a judicial fine under the above-mentioned Articles.

On 18 March 2009, following an appeal by the applicants, the Court of Cassation partially upheld and partially quashed the trial court's judgment. The Court of Cassation upheld the convictions of the applicants Ekrem Can, Fikret Avras, Mahmut Cengiz and Şenol Akyaz under Article 314 § 2 of the Criminal Code, those of the applicants Ekrem Can, Fikret Avras and Mahmut Cengiz under Article 174 § 1 and those of the rest of the applicants under Article 169 of the former Criminal Code. However, the Court of Cassation quashed the convictions of all the applicants under Article 113 § 1 of the Criminal Code and those of Ekrem Can, Fikret Avras and Mahmut Cengiz for using explosive materials under Article 170 § 1 (c) of the Criminal Code. Accordingly, the case file was remitted to the trial court in respect of the convictions that were quashed.

On 3 February 2010 the applicants lodged their application with the Court while the proceedings were still pending before the trial court.

On 30 June 2010 the Istanbul Assize Court once again convicted all the applicants under Article 113 § 1 of the Criminal Code, and sentenced them each to one year and eight months' imprisonment. The trial court went on to convict the applicant Ekrem Can on two counts of using explosive materials, and sentenced him to ten months' imprisonment under Article 170 § 1 (c) of the Criminal Code. The applicants Fikret Avras and Mahmut Cengiz were also convicted under the same Article and were each sentenced to five months for throwing Molotov cocktails.

On 2 April 2012 the Court of Cassation upheld the first-instance court's judgment in so far as it concerned the applicants.

The relevant domestic law (as in force at the material time), as well as the case-law of the Constitutional Court regarding the issue of waiver of the right to a lawyer, may be found in Ruşen Bayar v. Turkey, (no. 25253/08, §§ 41–46, 19 February 2019).

The relevant provisions of the Criminal Code provided as follows at the material time:

Article 113

Article 170

Done in English, and notified in writing on 8 March 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Hasan Bakırcı

Deputy Registrar

Jon Fridrik Kjølbro

President