Ruşen Bayar v. Turkey (Application no. 25253/08)

Key paragraph(s) can be found below the document.

121. The Court is mindful of the probative value of the documents the applicant signed while in police custody. However, as with many other guarantees under Article 6 of the Convention, those signatures are not an end in themselves and they must be examined by the Court in the light of all the circumstances of the case. Thus, it can be inferred from the foregoing that what constitutes a valid waiver of a right under Article 6 of the Convention cannot be the subject of a single unvarying rule, but must depend on the circumstance of the particular case (see Simeonovi, cited above, § 113, and Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3 others, §§ 250-1, ECHR 2016; and see for a similar approach Goran Kovačević v. Croatia, no. 34804/14, § 75, 12 April 2018).

Turning back to the instant case, the Court considers that two important elements tipped the balance in favour of the applicant. Firstly, the applicant stated to the public prosecutor that he had requested to see a lawyer before giving statements to the police and that that request had been rejected. In other words, the applicant asserted before the domestic courts that he had made an explicit request for legal assistance. On that basis, the present case is distinguishable from Kaytan (v. Turkey, no. 27422/05, § 31, 15 September 2015), and Gür (v. Turkey (dec.), no. 39182/08, 14 January 2014).

122. Secondly, and equally importantly, the Court notes that the applicant neither admitted his guilt nor accepted his statements to the police after he was given access to a lawyer and consistently repudiated his confession throughout the ensuing proceedings, in which he was represented by a lawyer. The present case is on those grounds distinguishable from Aksin and Others (v. Turkey, no. 4447/05, §§ 7, 8 and 19, 1 October 2013), Diriöz (v. Turkey, no. 38560/04, § 36, 31 May 2012), and Yoldaş (v. Turkey, no. 27503/04, § 19, 23 February 2010) where the applicants maintained their incriminating police statements at least until the first hearing of their trials.

123. In conclusion, the Court considers that it is unable to find that it has been established beyond any reasonable doubt that the applicant had unequivocally, knowingly and intelligently waived his rights under Article 6 of the Convention (compare Şedal v. Turkey (dec.), no. 38802/08, § 36, 13 May 2014 where the applicant had seen his lawyer both before and after giving statements to the police).

125. The Court notes that the Government have not offered any compelling reasons for the restriction of the applicant’s access to a lawyer between 13 and 16 November 2003 during which time he was in police custody. Furthermore, it is not for the Court to undertake of its own motion this task and determine several years on from the events at issue whether there existed any compelling reasons to restrict the applicant’s right of access to a lawyer. All the more so, since the domestic legislation in force at the material time did not provide for any reasons for such a restriction for suspects in police custody, let alone a compelling one.

134. More importantly, the Government did not bring forward any argument capable of proving that the overall fairness of the criminal proceedings against the applicant had in fact not been prejudiced. The Court reiterates that it can only exceptionally find that the overall fairness of proceedings has not been prejudiced by an initial failure to observe the accused’s rights at the early stages of the proceedings. In this regard, the Court recalls that prompt access to a lawyer constitutes an important counterweight to the vulnerability of suspects in police custody, provides a fundamental safeguard against coercion and ill-treatment of suspects by the police, and contributes to the prevention of miscarriages of justice and the fulfilment of the aims of Article 6, notably equality of arms between the investigating or prosecuting authorities and the accused (see Ibrahim and others, cited above, § 255).

135. Against such a background, the Court is unable to conclude that the applicant was given the opportunity of challenging the authenticity of the evidence and of opposing its use. Accordingly, the absence of an appropriate response by the domestic courts on this crucial point, specifically the validity of the applicant’s waiver of legal assistance when giving statements to the police and their subsequent admission by the trial court as evidence, undermined the principles of a fair trial in the instant case to an extent that prejudiced the overall fairness of the proceedings against the applicant.

136. There has therefore been a violation of Article 6 §§ 1 and 3 (c) of the Convention.