I correctly predicted that there was a violation of human rights in SHENTURK v. AZERBAIJAN.

Information

  • Judgment date: 2021-06-29
  • Communication date: 2018-07-05
  • Application number(s): 41326/17
  • Country:   AZE
  • Relevant ECHR article(s): 3, 5, 5-1-f, 5-4, 13, P7-1
  • Conclusion:
    Violation of Article 6+6-1 - Right to a fair trial (Article 6-3-d - Examination of witnesses) (Article 6 - Right to a fair trial
    Criminal proceedings
    Article 6-1 - Fair hearing)
  • Result: Violation
  • SEE FINAL JUDGMENT

JURI Prediction

  • Probability: 0.606743
  • Prediction: Violation
  • Consistent


Legend

 In line with the court's judgment
 In opposition to the court's judgment
Darker color: higher probability
: In line with the court's judgment  
: In opposition to the court's judgment

Communication text used for prediction

The applicant, Mr Taci Shenturk, is a Turkish national who was born in 1976 and at the time of the events lived in Azerbaijan.
He is represented before the Court by Ms A. Nasirli and Mr S. Rahimli.
The facts of the case, as submitted by the applicant, may be summarised as follows.
On an unspecified date the applicant moved to Azerbaijan where he worked in private schools affiliated to the Gülen movement.
He was granted a temporary residence permit which was regularly extended.
On 9 March 2017 his temporary residence permit was extended de novo until 9 September 2017.
On 3 June 2017 the Turkish authorities informed Azerbaijani counterparts via Interpol that the applicant’s passport had been cancelled and therefore requested the Azerbaijani authorities to arrest and deport the applicant to Turkey.
At about 2.00 p.m. on 7 June 2017 the applicant was arrested and brought to the temporary detention facility of the Organised Crime Department of the Ministry of Internal Affairs (“the OCD”) where he was informed that he would be taken to Baku International Airport and deported to Turkey at 8.30 p.m. on the same day.
The applicant informed officers of the OCD about his intention to request asylum in Azerbaijan on the ground of his persecution in Turkey and repeatedly asked the officers not to deport him.
However, his demands were ignored.
While in detention, the applicant informed his wife and friends about his arrest and imminent removal.
His friends retained a lawyer who applied on the applicant’s behalf for asylum to the UNHCR Baku Office, the State Migration Service (“the SMS”), the OCD and to the Office for Affairs of Refugees and Displaced Persons, asking to grant the applicant refuges status due the risk of him being subjected to persecution and ill-treatment in Turkey.
On the same date the UNHCR Baku Office issued a temporary protection letter with respect to the applicant, his wife and their four children, valid until 7 September 2017, on the basis of the fact that they were registered with the UNHCR and their asylum request was under consideration by the national authorities.
At 8.30 p.m. on the same day the applicant’s wife, children and friends arrived at the airport, apparently in the attempt to prevent the applicant’s deportation.
The applicant was able to speak to his family members and friends for five minutes.
Afterwards, he was led away by the OCD officers to proceed with boarding the plane for the scheduled flight.
At the customs and border control, the applicant informed the officer on duty from the State Border Service that he was seeking asylum in Azerbaijan.
The officer in question called a representative from the SMS and the applicant reiterated his request.
However, according to the applicant the representative of the SMS ignored his request.
At some point, while the applicant was already in the boarding area, a staff member of the UNHCR in Azerbaijan arrived at the airport and intervened with a view to preventing the applicant’s removal.
As a result, the applicant was not put on the plane and was taken back to the detention facility of the OCD.
At about 11.00 p.m. on the same day, the applicant’s lawyer came to the detention facility to meet the applicant, but he was not allowed to do so.
On 8 June 2017 the applicant’s lawyer applied to the SMS with a written request to grant the applicant refugee status.
There is no information about the outcome of this request.
On the same date, without informing the UNHCR Baku office and the applicant’s family, the OCD officers took the applicant again to Baku International Airport and put him on a plane to Ankara.
Upon arrival to Ankara, the applicant was arrested by the Turkish police and sent to Konya where he was remanded in custody in connection with criminal investigation into his alleged involvement in the Gülenist Terrorist Organisation (FETÖ/PDY).
Meanwhile, the applicant’s wife, who was not aware at the time about the applicant’s removal, applied to various authorities concerning his whereabouts.
On 23 June 2017 the State Border Service informed the applicant’s wife that her husband had been deported to Turkey on 8 June 2017.
On 6 July 2017 the OCD also informed the applicant’s wife that her husband “left Azerbaijan” for Turkey on 8 June 2017 due to the fact that the Turkish authorities issued an arrest warrant against the applicant because he was suspected of being involved in FETÖ/PDY.
COMPLAINTS The applicant complains under Article 3 that his forcible removal to Turkey exposed him to a real risk of ill-treatment in that country.
The applicant complains under Article 5 that his detention was unlawful.
The applicant complains that his expulsion to Turkey was in breach of the requirements of Article 1 of Protocol No.
7 to the Convention.
Relying on Article 13 of the Convention in conjunction with Articles 3 and 5 the applicant complains that he had no effective remedy by which he could have challenged the lawfulness of his detention and his expulsion on the grounds that he would risk being subjected to torture or ill-treatment if removed.

Judgment

SECOND SECTION
CASE OF ALAT v. TURKEY
(Application no.
39513/11)

JUDGMENT
STRASBOURG
29 June 2021

This judgment is final but it may be subject to editorial revision.
In the case of Alat v. Turkey,
The European Court of Human Rights (Second Section), sitting as a Committee composed of:
Carlo Ranzoni, President, Valeriu Griţco, Marko Bošnjak, judges,and Hasan Bakırcı, Deputy Section Registrar,
Having regard to:
the application (no.
39513/11) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Yaşar Alat (“the applicant”), on 24 March 2011;
the decision to give notice to the Turkish Government (“the Government”) of the complaints under Article 6 of the Convention concerning the different aspects of the fairness of the criminal proceedings against the applicant and to declare the remainder of the application inadmissible;
the parties’ observations;
Having deliberated in private on 8 June 2021,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1.
The application concerns the alleged unfairness of the criminal proceedings against the applicant on account of (i) his inability to examine a witness, C.A., before the trial court; (ii) his allegedly unjustified absence from certain hearings and the ineffective legal representation stemming from the conduct of the legal aid lawyers assigned to him; and (iii) the alleged failure of the domestic courts to grant him adequate time and facilities for the preparation of his defence and for a proper examination of the case file, and to give reasons for their judgments. THE FACTS
2.
The applicant was born in 1981 and is currently serving a sentence in the Kahramanmaraş Türkoğlu L-Type Prison. He was granted legal aid and was represented before the Court by Mr E. Baran, a lawyer practising in Istanbul. 3. The Government were represented by their Agent. 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. On 23 September 2006 a car bomb exploded outside a police guesthouse in Iğdır, a city in eastern Turkey, causing the death of one person and injuries to eighteen others, including police officers, and damage to property. The bomb was detonated remotely from a stolen minivan with a false number plate bearing the registration number 34 PEM 60. 6. On the basis of police intelligence, the applicant was identified as one of the suspects. At the material time, he worked as a taxi driver. 7. It appears that the applicant’s mobile telephone conversations were intercepted and recorded, pursuant to a warrant dated 18 October 2006 issued by the Iğdır Magistrate’s Court. 8. On 28 October 2006 the police took a decision to follow the applicant’s taxi, based on intelligence which indicated that he would be meeting with members of a terrorist organisation. During the surveillance, the applicant was seen picking up an unidentified person from the side of a road and driving towards Gürbulak, a town in south-eastern Turkey. Shortly before reaching the location of a routine police checkpoint, the applicant changed course; soon afterwards, he crashed his taxi into a wall and ran away. The unidentified person, subsequently alleged by the applicant to be H.Ş., also ran away. The police searched the applicant’s taxi (which bore the registration number 04 D 1633), seized a mobile telephone, and extracted a list of the calls made and SMS messages sent and received prior to 18 October 2006. 9. The same day, police officers conducted another search of the applicant’s taxi, during which they took fingerprints and collected, inter alia, twelve cigarette butts dispersed throughout the taxi as evidence for further analysis. They also found a hand grenade and a gun next to the wall into which the applicant had crashed his taxi and noted that he must have dropped them while running away. No fingerprints or DNA evidence were found on the hand grenade or the gun. 10. On 9 November 2006 C.A. was interviewed as a suspect by the police in the presence of his lawyer and denied any involvement in the bombing that had taken place on 23 September 2006. He stated, however, that one week before the beginning of Ramadan (that is to say, on 17 September 2006) the applicant, who was his cousin, had come to visit him with a friend in a Ford Transit minivan with a registration plate starting with the number 34 (Istanbul). Subsequently, on 23 September 2006, C.A. had come across the same vehicle and noticed that its back seats had been removed. Finally, on 23 October 2006, the applicant had come to visit him again, but this time in a yellow minivan. The next day, C.A. made statements to the public prosecutor in the presence of his lawyer and reiterated the statements he had made to the police. 11. On 16 November 2006 an arrest warrant was issued in respect of the applicant on suspicion of membership of an armed terrorist organisation and having committed a murder and acts against the security and integrity of the State. 12. On 24 July 2007 the applicant contacted the authorities by telephone and asked to be allowed to surrender to them. He surrendered himself, together with a Kalashnikov rifle, two hand grenades and a camera, which contained photographs of him and alleged members of the PKK (Workers’ Party of Kurdistan, an illegal armed organisation). 13. At the Ağrı police station (hereinafter “the police station”) a lawyer was appointed for the applicant and his statement was taken in the lawyer’s presence. In his statements to the police and later to the public prosecutor, the applicant denied having taken part in the Iğdır bombing. He explained that his involvement in the PKK had been against his will and that he had been forced to transport goods and persons to PKK premises. He had been forced to join the PKK under the threat of death; he had not wanted to be killed, like other taxi drivers who had refused to aid the illegal organisation. On the night when he had crashed his taxi, he had been forced to bring a PKK member, a certain H.Ş., to the location of a meeting. H.Ş. had forced him to change course after noticing the checkpoint and had threatened to detonate the hand grenade that he had been holding unless the applicant changed course. The applicant had complied, but had later panicked, crashing his taxi into a wall, before running away. PKK members had taken him into the mountains and later to Iran, where he had been held for nine months. It was during that time that he had discovered the identities of the PKK members who had taken part in the Iğdır bombing. As soon as he had been brought back to Turkey, he had found an opportunity to escape and surrender. The applicant also gave the names of certain PKK members, identifying them using photographs taken with his camera, and provided details of past and planned terrorist attacks. 14. At the police station, the applicant gave his consent to having blood samples taken from him. It was established in tests conducted on the samples that the twelve cigarette butts found in the applicant’s taxi on 28 October 2006 matched his DNA. After giving his statement, the applicant was taken into detention; his pre-trial detention was subsequently ordered by a single judge on 27 July 2007. 15. On 25 April 2007 a bill of indictment was filed against the applicant with the Erzurum Assize Court, in which he was accused of possession and exchange of hazardous substances under Article 174 § 1 of the Turkish Criminal Code (“the Code”) on the basis of the grenade and the gun found on 28 October 2006 and of breaching Article 314 of the Code (leading or being a member of an armed terrorist organisation). It also appears that all the hearings in that first set of proceedings were conducted in the applicant’s absence. 16. Following the applicant’s arrest on 24 July 2007, another bill of indictment, dated 4 August 2008, was filed against him, in which the public prosecutor accused him of carrying out the Iğdır bombing on 23 September 2006, thereby causing the death of one person and injuries to eighteen others. Therefore, the public prosecutor charged the applicant with the offences of (i) carrying out activities against the integrity and security of the State, within the meaning of Article 302 § 1, Article 314 § 3 and Article 220 § 4 of the Code; (ii) murder and inflicting bodily harm and damage to property; and (iii) membership of an armed terrorist organisation. The indictment relied on the statements given by the applicant’s co-accused, the testimony of witness C.A., a former suspect at the investigation stage, recordings of the applicant’s telephone conversations, SMS messages that contained pro-PKK content, and DNA evidence taken from the applicant’s taxi on 28 October 2006. 17. The bill of indictment also referred, without providing specific details, to other fingerprint and DNA evidence that had apparently implicated the applicant in the Iğdır bombing. 18. At a hearing held on 20 November 2008, the applicant gave evidence in person and raised the alleged confusion regarding the link between, on the one hand, the DNA evidence taken from his taxi on 28 October 2006 and, on the other hand, the Iğdır bombing event, concerning which no such evidence was available. He also denied his involvement in the latter event. 19. On 20 January 2009 the applicant submitted a letter to the court in which he asked to be confronted with witness C.A., who had not been heard by the court in the proceedings and whose pre-trial testimony had been taken in the applicant’s absence. 20. At a hearing held on 26 March 2009 the trial court did not comment on the applicant’s request to be confronted with C.A. 21. At a hearing held on 27 August 2009, the public prosecutor requested that the applicant also be found guilty of unlawful possession of hazardous materials on the basis of the grenades and the Kalashnikov rifle found on his person at the time of his arrest. At the end of the hearing, the trial court found the applicant guilty of all the offences of which he stood accused, sentencing him to two terms of life imprisonment, an additional term of 110 years and eight months’ imprisonment and a fine. However, the trial court decided not to impose any sentence on the applicant in respect of the offence of membership of an armed organisation. 22. In the assessment part of its reasoned judgment, the trial court first noted the forensic reports, which concluded, inter alia, that (i) the cigarette butts found in the minivan that had been used in the bombing on 23 September 2006 had not responded to the DNA analysis, whereas (ii) the cigarette butts found in the applicant’s taxi on 28 October 2006 had matched his DNA. The trial court then went on to summarise the incident of 28 October 2006, indicating the seizure of the applicant’s taxi (registration number 04 D 1633), the hand grenade, the gun and his mobile telephone, as well as the contents of the SMS messages praising the PKK. Thereafter, the trial court established his criminal responsibility in respect of the bombing incident which had taken place on 23 September 2006. The relevant part of the trial court’s judgment reads as follows:
“...
Considering that C.A. stated that the applicant had come to him one week prior to the [bombing] incident together with his friend in a [Ford] Transit minivan and that he had noticed the absence of back seats, and [given that] DNA evidence and fingerprints belonging to the applicant were seized in the suspicious vehicle with the registration number 04 D 1633 [the applicant’s taxi], which had been pursued [on 28 October 2006], ... it has been accepted that the applicant carried out the bombing [on 23 September 2006] by detonating the bomb, which had been prepared with propane gas cylinders, certain explosive materials, and metal pieces creating a fragmentation effect, and which had been [placed] in the stolen white minivan on which the registration plate and vehicle identification number had been altered ...”
23.
Moreover, it is important to note that, while the trial court only reproduced the statements C.A. had given to the police and the public prosecutor as a suspect during the investigation stage, it also indicated in the assessment part of the judgment that he had given statements in his capacity as a witness during the trial stage. The reasoned judgment did not contain any information as to the time and place of the statements C.A. had allegedly made during the trial stage, nor did it contain the contents of those statements. Similarly, none of the documents submitted by the parties included a statement form indicating that C.A. had given statements during the trial stage in his capacity as a witness. 24. On 1 November 2010 the Court of Cassation upheld the Erzurum Assize Court’s judgment. RELEVANT LEGAL FRAMEWORK
25.
Relevant domestic law concerning the examination of witnesses in the context of criminal proceedings may be found in Süleyman v. Turkey (no. 59453/10, § 39 and §§ 41-43, 17 November 2020). THE LAW
26.
The applicant complained that as a result of his alleged inability to examine C.A. before the trial court he had been denied the right to a fair trial within the meaning of Article 6 §§ 1 and 3 (d) of the Convention, the relevant parts of which read as follows:
“1.
In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing by [a] ... tribunal ...
...
3.
Everyone charged with a criminal offence has the following minimum rights:
...
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
...”
27.
The Court notes that this complaint is neither manifestly ill‐founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. 28. The applicant argued that, although his conviction had rested only on the statements the witness C.A. had made to the police and the public prosecutor, he had not been allowed to confront that witness before the trial court, contrary to the requirements of Article 6 § 3 (d) of the Convention. The applicant further argued that the trial court had confused the cigarette butts found in his taxi on 28 October 2006, which had belonged to him, with those found in the minivan used in the bombing on 23 September 2006, which had not belonged to him. As a result, the trial court’s judgment had given the impression that cigarette butts which bore his DNA had been found in the minivan used for the bombing, despite the absence of any scientific finding to that effect. 29. The Government submitted that they were aware of the Court’s case-law regarding absent witnesses but contended that the statements made by C.A. had not been the sole basis for the applicant’s conviction. They did not make any other detailed submissions on this point. As for the issue of the cigarette butts, the Government argued that, contrary to the applicant’s allegations, the trial court had not concluded that the cigarette butts found in the vehicle used in the bombing had belonged to him. 30. The Court reiterates that Article 6 § 3 (d) enshrines the principle that, before an accused can be convicted, all evidence against him must normally be produced in his presence at a public hearing with a view to adversarial argument. Exceptions to this principle are possible but must not infringe the rights of the defence, which, as a rule, require that the accused should be given an adequate and proper opportunity to challenge and question a witness against him, either when that witness makes his statement or at a later stage of proceedings (see Schatschaschwili v. Germany [GC], no. 9154/10, § 103, ECHR 2015, and Lucà v. Italy, no. 33354/96, § 39, ECHR 2001‐II). The general principles with regard to complaints relating to the examination of absent witnesses and the use by the courts of the evidence given by those witnesses may be found in Schatschaschwili (cited above, §§ 100-31) and Al-Khawaja and Tahery v. the United Kingdom ([GC], nos. 26766/05 and 22228/06, §§ 118‐47, ECHR 2011; see also Seton v. the United Kingdom, no. 55287/10, §§ 57‐59, 31 March 2016, for a concise summary of those principles). 31. In sum, the above principles lay down a tripartite test whereby the Court is required to examine: (i) whether there was a good reason for the non-attendance of the absent witness at the trial; (ii) whether the evidence given by the absent witness was the sole or decisive basis for the applicant’s conviction or carried significant weight in that regard; and (iii) whether there were sufficient counterbalancing factors to compensate for the handicaps under which the defence laboured vis‐à‐vis the evidence given by the absent witness. Moreover, the Court has also pointed out that, as with all complaints under Article 6 § 3, the defendant’s inability to examine a witness should be assessed in the light of the impact that it has had on the overall fairness of his trial (see Šmajgl v. Slovenia, no. 29187/10, § 61, 4 October 2016). 32. Turning back to the circumstances of the present case, the Court notes that the applicant had asked the trial court to examine C.A. in person with a view to confronting him. Nevertheless, the hearing records submitted by the parties show that the trial court did not take any steps in respect of that request. Neither did the Government argue otherwise. Therefore, the Court is led to conclude that there was no good reason for C.A. not to have attended the trial with a view to enabling the applicant to confront him in person. 33. As regards the second step of the test, the Court notes that it appears from the trial court’s reasoned judgment that the applicant was found guilty of the bombing incident on 23 September 2006 on the basis of the statements C.A. had made and in view of the “first incident”, in which the police officers had found and seized the applicant’s mobile telephone and a hand grenade after he had run away from the police and crashed his taxi into the wall on 28 October 2006. Even though the hand grenade and the contents of the SMS messages detected on the applicant’s mobile telephone were referred to in relation to the charge of unlawful possession of hazardous materials in the first indictment, they were not tangible evidence capable of showing that it was he who had placed the bomb in the minivan or had otherwise detonated it. In any event, they were not treated as such by the trial court when establishing the applicant’s criminal responsibility for the bombing. 34. As for the trial court’s alleged confusion of the cigarette butts found in the applicant’s taxi on 28 October 2006 with those found in the minivan used in the bombing on 23 September 2006, the Court observes that, when taken in isolation from the entirety of the reasoned judgment, the trial court’s reference to the cigarette butts found in the minivan, appearing immediately before its conclusion that the applicant should be held responsible for the bombing incident, might have sparked confusion and could have led an objective observer to conclude that the cigarette butts found in the minivan used for the bombing had belonged to the applicant. Nevertheless, the trial court distinguished clearly between the two different sets of cigarette butts and concluded that the ones found in the minivan used in the bombing had not matched the applicant’s DNA. That being the case, the Court cannot conclude that the trial court made an error in its assessment of those pieces of evidence. Neither could that finding show the applicant’s involvement in the bombing incident. 35. In view of the above, and regard being had to the trial court’s reasoned judgment, the Court notes that C.A.’s statements appear to have been decisive in securing the applicant’s conviction, as they constituted evidence capable of raising a reasonable suspicion as to his involvement in the bombing incident. 36. As regards the last step of the test, the Court notes that the Government did not indicate any procedural safeguards in relation to the use by the trial court of the evidence given by C.A. Therefore, it has not been established that there were sufficient counterbalancing factors to compensate for the handicaps under which the defence laboured vis‐à‐vis the evidence given by C.A. 37. In view of the foregoing considerations, the Court concludes that the applicant was not afforded proper safeguards commensurate with the nature of his complaint and the importance of what was at stake for him – namely two terms of life imprisonment, an additional term of 110 years and eight months’ imprisonment and a fine – which could have enabled him to sufficiently test the reliability and truthfulness of the evidence given by C.A., in line with the guarantees of a fair trial under Article 6 of the Convention. 38. There has therefore been a violation of Article 6 §§ 1 and 3 (d) of the Convention. 39. The applicant further complained under Article 6 of the Convention that his right to defend himself in person had been breached given that the authorities had failed to ensure his attendance at certain hearings because funding had been unavailable to the administration of the prison where he had been detained pending trial. In the same vein, the domestic courts had failed to provide him with effective legal representation and adequate time and facilities to prepare his defence. Lastly, the domestic courts had also failed in their duty to properly examine the case file and to deliver reasoned judgments. 40. Having regard to its conclusion under Article 6 § 3 (d) of the Convention, the Court considers that it is not necessary to examine separately the remaining complaints raised under Article 6 of the Convention. 41. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
42.
The applicant claimed 250,000 euros (EUR) in respect of non-pecuniary damage. 43. The Government contested that claim. 44. Having regard to the particular circumstances of the case, the Court considers that the finding of a violation constitutes in itself sufficient just satisfaction as regards any non-pecuniary damage that may have been sustained by the applicant. It further notes that Article 311 of the Code of Criminal Procedure allows for the reopening of the domestic proceedings in the event that the Court finds a violation of the Convention (see Daştan v. Turkey, no. 37272/08, § 44, 10 October 2017). 45. The applicant did not make any claims under this head. That being the case and regard being had to the Court’s decision to award the applicant EUR 850 in the form of legal aid, the Court makes no award under this head. FOR THESE REASONS, THE COURT, UNANIMOUSLY,
Done in English, and notified in writing on 29 June 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Hasan Bakırcı Carlo RanzoniDeputy Registrar President

SECOND SECTION
CASE OF ALAT v. TURKEY
(Application no.
39513/11)

JUDGMENT
STRASBOURG
29 June 2021

This judgment is final but it may be subject to editorial revision.
In the case of Alat v. Turkey,
The European Court of Human Rights (Second Section), sitting as a Committee composed of:
Carlo Ranzoni, President, Valeriu Griţco, Marko Bošnjak, judges,and Hasan Bakırcı, Deputy Section Registrar,
Having regard to:
the application (no.
39513/11) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Yaşar Alat (“the applicant”), on 24 March 2011;
the decision to give notice to the Turkish Government (“the Government”) of the complaints under Article 6 of the Convention concerning the different aspects of the fairness of the criminal proceedings against the applicant and to declare the remainder of the application inadmissible;
the parties’ observations;
Having deliberated in private on 8 June 2021,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1.
The application concerns the alleged unfairness of the criminal proceedings against the applicant on account of (i) his inability to examine a witness, C.A., before the trial court; (ii) his allegedly unjustified absence from certain hearings and the ineffective legal representation stemming from the conduct of the legal aid lawyers assigned to him; and (iii) the alleged failure of the domestic courts to grant him adequate time and facilities for the preparation of his defence and for a proper examination of the case file, and to give reasons for their judgments. THE FACTS
2.
The applicant was born in 1981 and is currently serving a sentence in the Kahramanmaraş Türkoğlu L-Type Prison. He was granted legal aid and was represented before the Court by Mr E. Baran, a lawyer practising in Istanbul. 3. The Government were represented by their Agent. 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. On 23 September 2006 a car bomb exploded outside a police guesthouse in Iğdır, a city in eastern Turkey, causing the death of one person and injuries to eighteen others, including police officers, and damage to property. The bomb was detonated remotely from a stolen minivan with a false number plate bearing the registration number 34 PEM 60. 6. On the basis of police intelligence, the applicant was identified as one of the suspects. At the material time, he worked as a taxi driver. 7. It appears that the applicant’s mobile telephone conversations were intercepted and recorded, pursuant to a warrant dated 18 October 2006 issued by the Iğdır Magistrate’s Court. 8. On 28 October 2006 the police took a decision to follow the applicant’s taxi, based on intelligence which indicated that he would be meeting with members of a terrorist organisation. During the surveillance, the applicant was seen picking up an unidentified person from the side of a road and driving towards Gürbulak, a town in south-eastern Turkey. Shortly before reaching the location of a routine police checkpoint, the applicant changed course; soon afterwards, he crashed his taxi into a wall and ran away. The unidentified person, subsequently alleged by the applicant to be H.Ş., also ran away. The police searched the applicant’s taxi (which bore the registration number 04 D 1633), seized a mobile telephone, and extracted a list of the calls made and SMS messages sent and received prior to 18 October 2006. 9. The same day, police officers conducted another search of the applicant’s taxi, during which they took fingerprints and collected, inter alia, twelve cigarette butts dispersed throughout the taxi as evidence for further analysis. They also found a hand grenade and a gun next to the wall into which the applicant had crashed his taxi and noted that he must have dropped them while running away. No fingerprints or DNA evidence were found on the hand grenade or the gun. 10. On 9 November 2006 C.A. was interviewed as a suspect by the police in the presence of his lawyer and denied any involvement in the bombing that had taken place on 23 September 2006. He stated, however, that one week before the beginning of Ramadan (that is to say, on 17 September 2006) the applicant, who was his cousin, had come to visit him with a friend in a Ford Transit minivan with a registration plate starting with the number 34 (Istanbul). Subsequently, on 23 September 2006, C.A. had come across the same vehicle and noticed that its back seats had been removed. Finally, on 23 October 2006, the applicant had come to visit him again, but this time in a yellow minivan. The next day, C.A. made statements to the public prosecutor in the presence of his lawyer and reiterated the statements he had made to the police. 11. On 16 November 2006 an arrest warrant was issued in respect of the applicant on suspicion of membership of an armed terrorist organisation and having committed a murder and acts against the security and integrity of the State. 12. On 24 July 2007 the applicant contacted the authorities by telephone and asked to be allowed to surrender to them. He surrendered himself, together with a Kalashnikov rifle, two hand grenades and a camera, which contained photographs of him and alleged members of the PKK (Workers’ Party of Kurdistan, an illegal armed organisation). 13. At the Ağrı police station (hereinafter “the police station”) a lawyer was appointed for the applicant and his statement was taken in the lawyer’s presence. In his statements to the police and later to the public prosecutor, the applicant denied having taken part in the Iğdır bombing. He explained that his involvement in the PKK had been against his will and that he had been forced to transport goods and persons to PKK premises. He had been forced to join the PKK under the threat of death; he had not wanted to be killed, like other taxi drivers who had refused to aid the illegal organisation. On the night when he had crashed his taxi, he had been forced to bring a PKK member, a certain H.Ş., to the location of a meeting. H.Ş. had forced him to change course after noticing the checkpoint and had threatened to detonate the hand grenade that he had been holding unless the applicant changed course. The applicant had complied, but had later panicked, crashing his taxi into a wall, before running away. PKK members had taken him into the mountains and later to Iran, where he had been held for nine months. It was during that time that he had discovered the identities of the PKK members who had taken part in the Iğdır bombing. As soon as he had been brought back to Turkey, he had found an opportunity to escape and surrender. The applicant also gave the names of certain PKK members, identifying them using photographs taken with his camera, and provided details of past and planned terrorist attacks. 14. At the police station, the applicant gave his consent to having blood samples taken from him. It was established in tests conducted on the samples that the twelve cigarette butts found in the applicant’s taxi on 28 October 2006 matched his DNA. After giving his statement, the applicant was taken into detention; his pre-trial detention was subsequently ordered by a single judge on 27 July 2007. 15. On 25 April 2007 a bill of indictment was filed against the applicant with the Erzurum Assize Court, in which he was accused of possession and exchange of hazardous substances under Article 174 § 1 of the Turkish Criminal Code (“the Code”) on the basis of the grenade and the gun found on 28 October 2006 and of breaching Article 314 of the Code (leading or being a member of an armed terrorist organisation). It also appears that all the hearings in that first set of proceedings were conducted in the applicant’s absence. 16. Following the applicant’s arrest on 24 July 2007, another bill of indictment, dated 4 August 2008, was filed against him, in which the public prosecutor accused him of carrying out the Iğdır bombing on 23 September 2006, thereby causing the death of one person and injuries to eighteen others. Therefore, the public prosecutor charged the applicant with the offences of (i) carrying out activities against the integrity and security of the State, within the meaning of Article 302 § 1, Article 314 § 3 and Article 220 § 4 of the Code; (ii) murder and inflicting bodily harm and damage to property; and (iii) membership of an armed terrorist organisation. The indictment relied on the statements given by the applicant’s co-accused, the testimony of witness C.A., a former suspect at the investigation stage, recordings of the applicant’s telephone conversations, SMS messages that contained pro-PKK content, and DNA evidence taken from the applicant’s taxi on 28 October 2006. 17. The bill of indictment also referred, without providing specific details, to other fingerprint and DNA evidence that had apparently implicated the applicant in the Iğdır bombing. 18. At a hearing held on 20 November 2008, the applicant gave evidence in person and raised the alleged confusion regarding the link between, on the one hand, the DNA evidence taken from his taxi on 28 October 2006 and, on the other hand, the Iğdır bombing event, concerning which no such evidence was available. He also denied his involvement in the latter event. 19. On 20 January 2009 the applicant submitted a letter to the court in which he asked to be confronted with witness C.A., who had not been heard by the court in the proceedings and whose pre-trial testimony had been taken in the applicant’s absence. 20. At a hearing held on 26 March 2009 the trial court did not comment on the applicant’s request to be confronted with C.A. 21. At a hearing held on 27 August 2009, the public prosecutor requested that the applicant also be found guilty of unlawful possession of hazardous materials on the basis of the grenades and the Kalashnikov rifle found on his person at the time of his arrest. At the end of the hearing, the trial court found the applicant guilty of all the offences of which he stood accused, sentencing him to two terms of life imprisonment, an additional term of 110 years and eight months’ imprisonment and a fine. However, the trial court decided not to impose any sentence on the applicant in respect of the offence of membership of an armed organisation. 22. In the assessment part of its reasoned judgment, the trial court first noted the forensic reports, which concluded, inter alia, that (i) the cigarette butts found in the minivan that had been used in the bombing on 23 September 2006 had not responded to the DNA analysis, whereas (ii) the cigarette butts found in the applicant’s taxi on 28 October 2006 had matched his DNA. The trial court then went on to summarise the incident of 28 October 2006, indicating the seizure of the applicant’s taxi (registration number 04 D 1633), the hand grenade, the gun and his mobile telephone, as well as the contents of the SMS messages praising the PKK. Thereafter, the trial court established his criminal responsibility in respect of the bombing incident which had taken place on 23 September 2006. The relevant part of the trial court’s judgment reads as follows:
“...
Considering that C.A. stated that the applicant had come to him one week prior to the [bombing] incident together with his friend in a [Ford] Transit minivan and that he had noticed the absence of back seats, and [given that] DNA evidence and fingerprints belonging to the applicant were seized in the suspicious vehicle with the registration number 04 D 1633 [the applicant’s taxi], which had been pursued [on 28 October 2006], ... it has been accepted that the applicant carried out the bombing [on 23 September 2006] by detonating the bomb, which had been prepared with propane gas cylinders, certain explosive materials, and metal pieces creating a fragmentation effect, and which had been [placed] in the stolen white minivan on which the registration plate and vehicle identification number had been altered ...”
23.
Moreover, it is important to note that, while the trial court only reproduced the statements C.A. had given to the police and the public prosecutor as a suspect during the investigation stage, it also indicated in the assessment part of the judgment that he had given statements in his capacity as a witness during the trial stage. The reasoned judgment did not contain any information as to the time and place of the statements C.A. had allegedly made during the trial stage, nor did it contain the contents of those statements. Similarly, none of the documents submitted by the parties included a statement form indicating that C.A. had given statements during the trial stage in his capacity as a witness. 24. On 1 November 2010 the Court of Cassation upheld the Erzurum Assize Court’s judgment. RELEVANT LEGAL FRAMEWORK
25.
Relevant domestic law concerning the examination of witnesses in the context of criminal proceedings may be found in Süleyman v. Turkey (no. 59453/10, § 39 and §§ 41-43, 17 November 2020). THE LAW
26.
The applicant complained that as a result of his alleged inability to examine C.A. before the trial court he had been denied the right to a fair trial within the meaning of Article 6 §§ 1 and 3 (d) of the Convention, the relevant parts of which read as follows:
“1.
In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing by [a] ... tribunal ...
...
3.
Everyone charged with a criminal offence has the following minimum rights:
...
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
...”
27.
The Court notes that this complaint is neither manifestly ill‐founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. 28. The applicant argued that, although his conviction had rested only on the statements the witness C.A. had made to the police and the public prosecutor, he had not been allowed to confront that witness before the trial court, contrary to the requirements of Article 6 § 3 (d) of the Convention. The applicant further argued that the trial court had confused the cigarette butts found in his taxi on 28 October 2006, which had belonged to him, with those found in the minivan used in the bombing on 23 September 2006, which had not belonged to him. As a result, the trial court’s judgment had given the impression that cigarette butts which bore his DNA had been found in the minivan used for the bombing, despite the absence of any scientific finding to that effect. 29. The Government submitted that they were aware of the Court’s case-law regarding absent witnesses but contended that the statements made by C.A. had not been the sole basis for the applicant’s conviction. They did not make any other detailed submissions on this point. As for the issue of the cigarette butts, the Government argued that, contrary to the applicant’s allegations, the trial court had not concluded that the cigarette butts found in the vehicle used in the bombing had belonged to him. 30. The Court reiterates that Article 6 § 3 (d) enshrines the principle that, before an accused can be convicted, all evidence against him must normally be produced in his presence at a public hearing with a view to adversarial argument. Exceptions to this principle are possible but must not infringe the rights of the defence, which, as a rule, require that the accused should be given an adequate and proper opportunity to challenge and question a witness against him, either when that witness makes his statement or at a later stage of proceedings (see Schatschaschwili v. Germany [GC], no. 9154/10, § 103, ECHR 2015, and Lucà v. Italy, no. 33354/96, § 39, ECHR 2001‐II). The general principles with regard to complaints relating to the examination of absent witnesses and the use by the courts of the evidence given by those witnesses may be found in Schatschaschwili (cited above, §§ 100-31) and Al-Khawaja and Tahery v. the United Kingdom ([GC], nos. 26766/05 and 22228/06, §§ 118‐47, ECHR 2011; see also Seton v. the United Kingdom, no. 55287/10, §§ 57‐59, 31 March 2016, for a concise summary of those principles). 31. In sum, the above principles lay down a tripartite test whereby the Court is required to examine: (i) whether there was a good reason for the non-attendance of the absent witness at the trial; (ii) whether the evidence given by the absent witness was the sole or decisive basis for the applicant’s conviction or carried significant weight in that regard; and (iii) whether there were sufficient counterbalancing factors to compensate for the handicaps under which the defence laboured vis‐à‐vis the evidence given by the absent witness. Moreover, the Court has also pointed out that, as with all complaints under Article 6 § 3, the defendant’s inability to examine a witness should be assessed in the light of the impact that it has had on the overall fairness of his trial (see Šmajgl v. Slovenia, no. 29187/10, § 61, 4 October 2016). 32. Turning back to the circumstances of the present case, the Court notes that the applicant had asked the trial court to examine C.A. in person with a view to confronting him. Nevertheless, the hearing records submitted by the parties show that the trial court did not take any steps in respect of that request. Neither did the Government argue otherwise. Therefore, the Court is led to conclude that there was no good reason for C.A. not to have attended the trial with a view to enabling the applicant to confront him in person. 33. As regards the second step of the test, the Court notes that it appears from the trial court’s reasoned judgment that the applicant was found guilty of the bombing incident on 23 September 2006 on the basis of the statements C.A. had made and in view of the “first incident”, in which the police officers had found and seized the applicant’s mobile telephone and a hand grenade after he had run away from the police and crashed his taxi into the wall on 28 October 2006. Even though the hand grenade and the contents of the SMS messages detected on the applicant’s mobile telephone were referred to in relation to the charge of unlawful possession of hazardous materials in the first indictment, they were not tangible evidence capable of showing that it was he who had placed the bomb in the minivan or had otherwise detonated it. In any event, they were not treated as such by the trial court when establishing the applicant’s criminal responsibility for the bombing. 34. As for the trial court’s alleged confusion of the cigarette butts found in the applicant’s taxi on 28 October 2006 with those found in the minivan used in the bombing on 23 September 2006, the Court observes that, when taken in isolation from the entirety of the reasoned judgment, the trial court’s reference to the cigarette butts found in the minivan, appearing immediately before its conclusion that the applicant should be held responsible for the bombing incident, might have sparked confusion and could have led an objective observer to conclude that the cigarette butts found in the minivan used for the bombing had belonged to the applicant. Nevertheless, the trial court distinguished clearly between the two different sets of cigarette butts and concluded that the ones found in the minivan used in the bombing had not matched the applicant’s DNA. That being the case, the Court cannot conclude that the trial court made an error in its assessment of those pieces of evidence. Neither could that finding show the applicant’s involvement in the bombing incident. 35. In view of the above, and regard being had to the trial court’s reasoned judgment, the Court notes that C.A.’s statements appear to have been decisive in securing the applicant’s conviction, as they constituted evidence capable of raising a reasonable suspicion as to his involvement in the bombing incident. 36. As regards the last step of the test, the Court notes that the Government did not indicate any procedural safeguards in relation to the use by the trial court of the evidence given by C.A. Therefore, it has not been established that there were sufficient counterbalancing factors to compensate for the handicaps under which the defence laboured vis‐à‐vis the evidence given by C.A. 37. In view of the foregoing considerations, the Court concludes that the applicant was not afforded proper safeguards commensurate with the nature of his complaint and the importance of what was at stake for him – namely two terms of life imprisonment, an additional term of 110 years and eight months’ imprisonment and a fine – which could have enabled him to sufficiently test the reliability and truthfulness of the evidence given by C.A., in line with the guarantees of a fair trial under Article 6 of the Convention. 38. There has therefore been a violation of Article 6 §§ 1 and 3 (d) of the Convention. 39. The applicant further complained under Article 6 of the Convention that his right to defend himself in person had been breached given that the authorities had failed to ensure his attendance at certain hearings because funding had been unavailable to the administration of the prison where he had been detained pending trial. In the same vein, the domestic courts had failed to provide him with effective legal representation and adequate time and facilities to prepare his defence. Lastly, the domestic courts had also failed in their duty to properly examine the case file and to deliver reasoned judgments. 40. Having regard to its conclusion under Article 6 § 3 (d) of the Convention, the Court considers that it is not necessary to examine separately the remaining complaints raised under Article 6 of the Convention. 41. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
42.
The applicant claimed 250,000 euros (EUR) in respect of non-pecuniary damage. 43. The Government contested that claim. 44. Having regard to the particular circumstances of the case, the Court considers that the finding of a violation constitutes in itself sufficient just satisfaction as regards any non-pecuniary damage that may have been sustained by the applicant. It further notes that Article 311 of the Code of Criminal Procedure allows for the reopening of the domestic proceedings in the event that the Court finds a violation of the Convention (see Daştan v. Turkey, no. 37272/08, § 44, 10 October 2017). 45. The applicant did not make any claims under this head. That being the case and regard being had to the Court’s decision to award the applicant EUR 850 in the form of legal aid, the Court makes no award under this head. FOR THESE REASONS, THE COURT, UNANIMOUSLY,
Done in English, and notified in writing on 29 June 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Hasan Bakırcı Carlo RanzoniDeputy Registrar President