Examination of witnesses<\/strong><\/p>\nConviction based on written statements of absent witnesses, who were examined by the courts of their places of residence, absent reasonable efforts by the trial court to secure their attendance:\u00a0violation<\/p>\n
Facts\u00a0\u2013 The applicant was convicted for involvement in three different armed activities as a member of a terrorist organisation, namely the PKK (Workers\u2019 Party of Kurdistan). He complained that, during the criminal proceedings, he had not been able to confront in person four witnesses who had earlier made incriminating statements about him.<\/p>\n
Law\u00a0\u2013 Article 6 \u00a7\u00a7 1 and 3 (d)<\/p>\n
(a)\u00a0Whether there was a good reason for the non-attendance of the four witnesses\u00a0\u2013 The applicant had confessed to his involvement with the PKK, however he had denied having carried out or taken part in any armed activities. The public prosecutor had relied on the statements other organisation members had made in the course of different criminal proceedings, and of four witnesses in particular. The trial court had decided that those witnesses would be examined by the courts of their places of residence. Accordingly, the evidence of three of the four witnesses had been taken by courts other than the trial court, and the latter had admitted copies of their written statements as evidence in lieu of their live in-court-testimony.<\/p>\n
The method chosen by the trial court, namely the examination of the witnesses by the courts of their places of residence if they were residing somewhere other than where the trial was taking place, appeared to result from the interpretation of the relevant provisions of the Code of Criminal Procedure. In other words, the crux of the applicant\u2019s inability to examine the witnesses in person had stemmed from the trial court\u2019s inflexible and mechanical approach, which had rested on the fact that the witnesses had been situated in different cities. That precluded any individualised assessment of the question of whether there had been any good reasons, in the sense of the term used by the Court in its case-law under Article 6 \u00a7 3 (d),\u00a0\u00a0for the witnesses\u2019 non-attendance at the trial, and appeared to absolve the domestic courts of their duty to make all reasonable efforts to secure their attendance.<\/p>\n
Indeed, the fact that that three of the witnesses had been serving their sentences in different prisons in Turkey at the time they had given evidence during the applicant\u2019s trial, and had hence been under the exclusive authority of the State, had not prompted the trial court to assess whether it had been possible to hear them in person. Similarly, the steps taken by the domestic authorities to locate the fourth witness, which had consisted only of enquiring at his alleged work address and calling a mobile telephone number belonging to him, did not suggest that they had done everything reasonably expected of them to secure his presence.<\/p>\n
In view of the above, the trial court\u2019s decision to send letters of request to the courts had been the result of an inability to secure the attendance of the witnesses. No good reason had been shown for the non-attendance of those witnesses at trial.<\/p>\n
(b)\u00a0Whether the evidence of the absent witnesses was the sole or decisive basis for the applicant\u2019s conviction\u00a0\u2013 In establishing the applicant\u2019s involvement in the three armed incidents indicated in the indictment and sentencing him to life imprisonment, the trial court had relied to a decisive extent on the evidence given by the absent witnesses.<\/p>\n
(c)\u00a0Whether there were sufficient counterbalancing factors to compensate for handicaps under which the defence laboured\u00a0\u2013 Given the centrality of the witness evidence, weighty counterbalancing factors had been required to ensure the fairness of proceedings:<\/p>\n
The method adopted by the trial court had not been capable of operating as a procedural safeguard in the absence of good reasons for the non-attendance of absent witnesses and when the trial court had had recourse to it without considering alternative measures for obtaining evidence from the absent witnesses. It had not allowed the defence to properly and fairly assess the credibility of the evidence. The Court did not accept the Government\u2019s contention that the applicant\u2019s lawyer had failed to attend the commission hearings, which would have enabled him to examine the witnesses. The accused and\/or defence lawyers would have had to travel to different places with a view to attending the hearings where witnesses would be giving evidence: such a course of action would risk placing a disproportionate burden on the defence to an extent incompatible with the principle of equality of arms. In any event, it appeared that the applicant, who had remained in pre-trial detention throughout the criminal proceedings, could not attend the commission hearings before the different courts had he so wished. Moreover, the trial court\u2019s approach was capable of jeopardising the principle of immediacy, in so far as it gave rise to a situation in which the trial court would not have the possibility to directly observe the demeanour and credibility of a certain witness giving evidence in the courts of his or her place of residence.<\/p>\n
There was also no indication that the national courts had either approached the evidence given by the absent witnesses with any particular caution or that they had been aware that it had carried less weight owing to their absence from the trial.<\/p>\n
Finally, and as regards the availability and strength of further incriminating evidence, the court had already made findings as regards the probative value of the evidence given by the absent witnesses for the applicant\u2019s conviction.<\/p>\n
In view of the foregoing considerations, the defence\u2019s ability to test the truthfulness and reliability of the four witnesses\u2019 evidence had been substantially affected and, in the circumstances of the present case, the overall fairness of the proceedings against the applicant had been tainted.<\/p>\n
Conclusion: violation (unanimously).<\/p>\n
(See also\u00a0Al-Khawaja and Tahery v. the United Kingdom\u00a0[GC],\u00a026766\/05\u00a0and\u00a022228\/06, 15 December 2011,\u00a0Legal Summary, and\u00a0Schatschaschwili v. Germany\u00a0[GC],\u00a09154\/10, 15 December 2015,\u00a0Legal Summary)<\/p>\n