SECOND SECTION<\/p>\n
DECISION<\/p>\n
Application no.22382\/07
\nAdil YILDIRIM
\nagainst Turkey<\/p>\n
The European Court of Human Rights (Second Section), sitting on 22\u00a0January 2019 as a Committee composed of:<\/p>\n
Paul Lemmens, President,
\nJon Fridrik Kj\u00f8lbro,
\nIvana Jeli\u0107, judges,
\nand Hasan Bak\u0131rc\u0131, Deputy Section Registrar,<\/p>\n
Having regard to the above application lodged on 9 May 2007,<\/p>\n
Having regard to the formal declarations accepting a friendly settlement of the case,<\/p>\n
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,<\/p>\n
Having deliberated, decides as follows:<\/p>\n
THE FACTS AND PROCEDURE<\/p>\n
1.\u00a0\u00a0The applicant, Mr Adil Y\u0131ld\u0131r\u0131m, is a Turkishnational who was born in 1972 and was detained in Mersin Prison at the time of lodging his application. He was represented before the Court by Mr \u00dc. K\u0131l\u0131n\u00e7, a lawyer practising in Strasbourg.<\/p>\n
2.\u00a0\u00a0The Turkish Government (\u201cthe Government\u201d) were represented by their Agent.<\/p>\n
3.\u00a0\u00a0On 12 June 2017 the President of the Section to which the case had been allocated decided, under Rule 54 \u00a7 2 (a) and (c) of the Rules of Court, to request that the parties submit a copy of the applicant\u2019s appeal submissions.<\/p>\n
A.\u00a0\u00a0The circumstances of the case<\/p>\n
4.\u00a0\u00a0The applicant was born in 1972 and is detained in Mersin.<\/p>\n
5.\u00a0\u00a0On 29 September 2003 the applicant was taken into police custody on suspicion of being a member of the PKK, an armed illegal organisation.<\/p>\n
6.\u00a0\u00a0In his statements to the police, the public prosecutor and the investigating judge, the applicant denied the allegations against him. Subsequently, on 1 October 2003 the investigating judge ordered his detention on remand.<\/p>\n
7.\u00a0\u00a0On 3 November 2003 the public prosecutor at the \u0130zmir State Security Court filed a bill of indictment with that court against the applicant and a co\u2011accused, namely Mehmet Ali T\u00fcrk (who was the applicant in the case of T\u00fcrk v. Turkey, no. 22744\/07, 5 September 2017), accusing them of carrying out activities for the purposes of bringing about the secession of part of the national territory, under Article 125 of the Criminal Code.<\/p>\n
The prosecutor alleged that in 1992 the applicant, who was a member of the PKK, had shot K.G. upon the orders of the illegal organisation. The prosecutor submitted that K.G.\u2019s brother, who had been killed during a clash with the security forces, had been a PKK member, and that following his brother\u2019s death, K.G. had had a relationship with his widow. The applicant, together with S.K. and Mehmet Ali T\u00fcrk, had accordingly been ordered to kill K.G to punish him for that relationship. K.G. had been wounded as a result of the shooting.<\/p>\n
8.\u00a0\u00a0On 8 January 2004, at the first hearing, the applicant gave evidence in the presence of his lawyer before the \u0130zmir State Security Court. The applicant denied having been a member of the illegal organisation and having taken part in the shooting of K.G. in 1992. He further submitted that he did not know the victim, K.G., or the witnesses S.K. or M.N.A. (they had previously been tried in another set of criminal proceedings in relation to K.G.\u2019s shooting). When asked about the documents in the case file, including the statements of K.G. and S.K. and the verbatim records of the reconstruction of the events (ifadeli yer g\u00f6sterme tutana\u011f\u0131) which contained M.N.A.\u2019s statements, the applicant did not accept them. The applicant\u2019s lawyer also stated, inter alia, that M.N.A.\u2019s and S.K.\u2019s statements did not reflect the truth, and that they had retracted their incriminatory statements in another set of proceedings.<\/p>\n
9.\u00a0\u00a0On 4 May 2004, at the third hearing, the trial court deemed it necessary to hear from people who had been tried for the same incident in a previous case, no. 1996\/9, namely M.N.A., S.K. and B.\u00c7., with a view to verifying the defence submissions of the applicant and his co-accused, Mehmet Ali T\u00fcrk. In this connection, the trial court ordered that the necessary steps be taken to find out in which prisons M.N.A., S.K. and B.\u00c7. had been detained, and ordered that enquiries be made as to their addresses in the event that they had been released from prison. The trial court further ordered that a confrontation take place once the witnesses had been located. It ordered that photographs be taken of the applicant and the co-accused, from the side and from the front, and sent with the reports concerning the case, in the event that M.N.A., S.K. and B.\u00c7. were located outside its jurisdiction. If they resided in the centre of \u0130zmir, they should be heard in person as witnesses. The trial court also ordered that the address of K.G., the victim, should be produced, with a view to bringing him before the court to take evidence from him in person.<\/p>\n
10.\u00a0\u00a0At a hearing held on 29 June 2004 the trial court heard witness evidence from S.K. S.K. said that he did not know the applicant or Mehmet Ali T\u00fcrk, nor had he ever seen them before. He did not have direct knowledge of K.G.\u2019s shooting, and had given his previous statement as a result of information he had obtained from M.N.A. and B.\u00c7. The trial court reiterated its orders concerning M.N.A., B.\u00c7. and K.G.<\/p>\n
11.\u00a0\u00a0At a hearing held on 26 August 2004 the applicant\u2019s lawyer submitted a medical report issued by Elaz\u0131\u011f Mental Hospital, dated 3\u00a0September 2002, which noted that M.N.A. suffered from depression. The lawyer accordingly asked the trial court not to call M.N.A. as a witness. The trial court did not respond to that request.<\/p>\n
According to the transcript of the hearing, the applicant\u2019s lawyer submitted four other reports issued in respect of M.N.A.\u2019s state of health. However, the applicant did not submit those reports in his application to the Court.<\/p>\n
12.\u00a0\u00a0Under Law no. 5190 of 16 June 2004, published in the Official Gazette on 30 June 2004, State Security Courts were abolished. The case against the applicant was therefore transferred to the \u0130zmir Assize Court.<\/p>\n
13.\u00a0\u00a0According to the information in the file, another set of proceedings had been initiated against B.\u00c7., S.K. and M.N.A. in connection with K.G.\u2019s wounding (decision no. 1996\/9 E., 1997\/142 K, delivered by the \u0130zmir State Security Court). The statements taken from the accused persons in that set of proceedings were also included in the case file.<\/p>\n
14.\u00a0\u00a0On 29 June 2004 S.K. appeared before the \u0130zmir State Security Court and denied the statements that he had given in 1995 in connection with the criminal proceedings which had been instituted against him. He maintained that he had been subjected to ill-treatment while in police custody and had signed his statement under duress.<\/p>\n
15.\u00a0\u00a0On 19 August 2004 M.N.A. was questioned by the Siirt Assize Court, pursuant to a letter of request from the trial court. According to the transcript of the hearing at the Siirt Assize Court, M.N.A. was serving a sentence in Siirt E-type Prison at that time. He explained that in 1992 he, the applicant and Mehmet Ali T\u00fcrk had received instructions from the PKK and S.K. to shoot K.G. Accordingly, while he had secured the area and thus been involved in the shooting as a lookout, the applicant and Mehmet Ali T\u00fcrk had gone to shoot K.G. He had heard gunshots but had not seen K.G. being shot. He further identified the applicant and Mehmet Ali T\u00fcrk from the photographs. The Siirt Assize Court then asked M.N.A. to clarify the inconsistencies between the statements he had given to the police and the public prosecutor in 1995 and those he had just given to the court. M.N.A. insisted that he was now giving them the correct version of the events. The court reminded him that in his statement of 29 November 1995 before the public prosecutor he had said that he did not know the accused, and asked him to clarify that point. M.N.A then explained that it was because he had been questioned as an accused on 29 November 1995. He repeated that he was now giving them the correct version of the events.<\/p>\n
16.\u00a0\u00a0On 17 December 2004, in the seventh hearing, M.N.A.\u2019s statement was read out. The applicant\u2019s lawyer objected to this statement, referring to the inconsistencies in the statements which M.N.A. had given in 1995 and thereafter. He further referred to the medical report in respect of M.N.A., and requested that his statement be considered unreliable. The trial court did not provide a response to that request. It reiterated its orders concerning B.\u00c7. and K.G.<\/p>\n
17.\u00a0\u00a0On 17 February 2005 the eighth hearing was held, and the trial court again reiterated its orders concerning B.\u00c7. and K.G.<\/p>\n
18.\u00a0\u00a0At the ninth hearing on 28 April 2005 the trial court once again reiterated its orders concerning B.\u00c7. and K.G.<\/p>\n
19.\u00a0\u00a0At the tenth hearing on 12 July 2005 the victim, K.G., appeared before the trial court and gave evidence as a witness. K.G. submitted that he had not seen the applicant or Mehmet Ali T\u00fcrk at the crime scene and that they had not been involved in his shooting. He gave a detailed description of the people who had shot him.<\/p>\n
The trial court observed that, in his initial statements taken immediately after the incident, K.G. had stated that he had not been able to see the faces of the people who had attacked him. Subsequently, in the other set of proceedings, he had identified \u015e.E. and B.A. from their photos as the persons who had shot him.<\/p>\n
20.\u00a0\u00a0At a hearing held on 11 August 2005 the trial court asked the public prosecutor and the accused whether they were pursuing the request to have B.\u00c7. examined before the court. Both parties agreed to proceed without hearing B.\u00c7. in person. B.\u00c7.\u2019s statements given during the preliminary investigation stage and in the course of another set of proceedings (decision no.\u00a01996\/9 E., 1997\/142 K, delivered by the \u0130zmir State Security Court) were read out during the trial, and when asked about those statements, the applicant submitted that he had not accepted the evidence against him.<\/p>\n
21.\u00a0\u00a0On 4 October 2005 the \u0130zmir Assize Court found the applicant guilty as charged and convicted him under Article 125 of the former Criminal Code of carrying out activities with the aim of bringing about the secession of part of the national territory. It sentenced him to life imprisonment. In convicting the applicant, the court relied on, inter alia, the statements of M.N.A., as well as other relevant evidence collected during the criminal proceedings against M.N.A., B.\u00c7. and S.K. (decision no.\u00a01996\/9\u00a0E., 1997\/142\u00a0K, delivered by the \u0130zmir State Security Court).<\/p>\n
22.\u00a0\u00a0On the same day the applicant\u2019s lawyer lodged an appeal against that judgment. On 6 October 2005 the applicant also filed a one\u2011page\u2011long appeal submission against the trial court\u2019s judgment, submitting that the conviction had been unfair.<\/p>\n
23.\u00a0\u00a0On 7 February 2006 the applicant\u2019s lawyer lodged detailed appeal submissions in which he challenged, inter alia, the veracity of the evidence given by M.N.A., in the light of the medical reports issued in respect of him. On 8 February 2006 the applicant\u2019s other lawyer lodged appeal submissions in which he submitted, inter alia, that the trial court had failed to make out the material elements of the offence of which the applicant had been convicted.<\/p>\n
24.\u00a0\u00a0On 14 February 2006 the Court of Cassation quashed the judgment of the first-instance court in order to determine whether the new Criminal Code, which had entered into force on 1 June 2005 (no. 5237), provided more favourable provisions for the applicant. The case was thus once again examined by the \u0130zmir Assize Court, in view of the recent legislative changes.<\/p>\n
25.\u00a0\u00a0At a hearing held on 13 June 2006 the applicant\u2019s lawyer requested an additional investigation (tevsi-i tahkikat) from the trial court, in order to bring M.N.A before the court in order to hear him in person. However, the domestic court rejected that request, on account of the fact that the same request had already been examined and rejected earlier.<\/p>\n
26.\u00a0\u00a0On the same day, relying on the case file as a whole, the \u0130zmir Assize Court once again found the applicant guilty as charged under Article\u00a0125 of the Criminal Code, and sentenced him to life imprisonment. It listed, inter alia, the following evidence in its judgment: the statements of M.N.A. and S.K. in the different sets of proceedings; M.N.A.\u2019s statements before the Siirt Assize Court; B.\u00c7.\u2019s statements; Mehmet Ali T\u00fcrk\u2019s statements to the police, the public prosecutor, and the investigating judge; and verbatim records of the reconstruction of events which also contained M.N.A.\u2019s statements.<\/p>\n
27.\u00a0\u00a0The case file contains no information as to the content of the appeals lodged by the applicant and his lawyer against the trial court\u2019s judgment dated 13 June 2006. When asked to provide the appeal submissions which he had put forward during the proceedings, the applicant\u2019s lawyer submitted to the Court four sets of submissions dated 4 October 2005, 6\u00a0October 2005, 8\u00a0February 2006 and 4 January 2007.<\/p>\n
28.\u00a0\u00a0On 19 December 2006 the Court of Cassation held a hearing in the presence of the applicant\u2019s lawyer and decided to uphold the judgment of the trial court. The Court of Cassation pronounced its judgment on 27\u00a0December 2006.<\/p>\n
29.\u00a0\u00a0The applicant sent a letter dated 8 January 2007 to the Court of Cassation, in which he complained that his trial had been entirely unfair.<\/p>\n
COMPLAINT<\/p>\n
The applicant complained under Article 6 \u00a7\u00a7 1 and 3 (d) of the Convention that he had not been able to question M.N.A., whose statements had played an essential part in his conviction. In this connection, he alleged that in convicting him, the Izmir Assize Court had relied on a witness statement which had been taken on commission, without taking into account that the witness had suffered from a mental disorder.<\/p>\n
THE LAW<\/p>\n
A.\u00a0\u00a0The applicant\u2019s alleged inability to question M.N.A., whose statements played an essential part in his conviction<\/p>\n
30.\u00a0\u00a0The applicant alleged that his right to a fair trial had been breached on account of the trial court\u2019s failure to hear evidence from M.N.A. in person.<\/p>\n
31.\u00a0\u00a0The relevant parts of Article 6 of the Convention provide:<\/p>\n
\u201cIn the determination of … any criminal charge against him, everyone is entitled to a fair … hearing … by [a] … tribunal …<\/p>\n
3.\u00a0\u00a0Everyone charged with a criminal offence has the following minimum rights:<\/p>\n
(d)\u00a0\u00a0to 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; …\u201d<\/p>\n
32.\u00a0\u00a0As regards the admissibility of the applicant\u2019s complaints, the Government argued that the domestic courts had relied not only on the statement of M.N.A., but also on other evidence, including the statements of the witnesses S.K., B.\u00c7. and the statements of the co-accused Mehmet Ali T\u00fcrk. In this respect, they asked the Court to declare the application inadmissible as manifestly ill-founded.<\/p>\n
33.\u00a0\u00a0As regards the merits, the Government argued that M.N.A.\u2019s statement had been read out to the applicant during the hearing on 17\u00a0December 2004, and he had also had an opportunity to challenge it. Lastly, the applicant had not put forward his request that M.N.A. be heard in person before either the trial court or the Court of Cassation. In the Government\u2019s view, when an applicant decided not to make use of the right to have witnesses questioned, not hearing a witness in the presence of the accused did not constitute a breach of that right.<\/p>\n
34.\u00a0\u00a0The applicant did not submit any observations.<\/p>\n
35.\u00a0\u00a0The general principles with regard to the right to obtain the attendance and examination of witnesses can be found in the Grand Chamber judgments in Al\u2011Khawaja and Tahery v.\u00a0the United Kingdom ([GC], nos. 26766\/05 and 22228\/06, ECHR 2011) and Schatschaschwili v.\u00a0Germany ([GC], no. 9154\/10, \u00a7 100, ECHR 2015).<\/p>\n
36.\u00a0\u00a0The Court does not consider it necessary to examine the Government\u2019s objection as to the inadmissibility of the application in view of the weight of the remaining evidence indicating the applicant\u2019s guilt, as in its view, the complaint is in any event inadmissible for the following reasons.<\/p>\n
37.\u00a0\u00a0The Court takes note of the Government\u2019s submission that the applicant did not ask either the trial court or the Court of Cassationto hear evidence from M.N.A. in person. That said, however, as the Government made that argument in the \u201cmerits\u201d part of their observations and did not specifically ask the Court to declare the application inadmissible due to non\u2011exhaustion of domestic remedies, the Court considers that the present case cannot be declared inadmissible on that basis.<\/p>\n
38.\u00a0\u00a0On the other hand, the Court observes that the applicant only asked the trial court to question M.N.A. in person during the last hearing on 13\u00a0June 2006. Prior to that hearing, the applicant had only challenged the content of the evidence given by M.N.A., alleging that he had been suffering from depression.<\/p>\n
39.\u00a0\u00a0Furthermore, when asked to provide the Court with his appeal submissions, the applicant submitted four sets of submissions dated 4\u00a0October 2005, 6 October 2005, 8 February 2006 and 4January2007. However, none of those submissions were appeals lodged against the trial court\u2019s judgment dated 13 June 2006. In any event, none of those submissions included any request to question M.N.A. in person before the trial court, the complaint which the applicant now raises before the Court. As such, the Court observes that the applicant failed to raise his complaints concerning the trial court\u2019s failure to hear evidence from M.N.A in person before the Court of Cassation.<\/p>\n
40.\u00a0\u00a0In view of the above, and having regard to the documents in its possession, the Court considers that the applicant has failed to substantiate his complaint that he was unable to question M.N.A. in person before the trial court.<\/p>\n
41.\u00a0\u00a0It follows that the application is manifestly ill-founded and must be rejected in accordance with Article 35 \u00a7\u00a7 3 (a) and 4 of the Convention.<\/p>\n
B.\u00a0\u00a0The trial court\u2019s failure to consider M.N.A.\u2019s mental state when relying on his statements in convicting the applicant<\/p>\n
42.\u00a0\u00a0The applicant further alleged that the trial court had failed to consider that M.N.A. had suffered from a mental disorder, despite the fact that it had relied on his statements, amongst other things, when convicting him.<\/p>\n
43.\u00a0\u00a0The Government reiterated that M.N.A. had first given statements to the police on 21 November 1995, long before the medical report had been issued in respect of him on 3 December 2002. Moreover, M.N.A.\u2019s second statement had been taken by the Siirt Assize Court, pursuant to a letter of request from the trial court, on 19 August 2004, two years after the date of the impugned report. Therefore, there had been no grounds to question the accuracy of M.N.A.\u2019s statements, and consequently the trial court had not carried out any assessment of that matter.<\/p>\n
44.\u00a0\u00a0The applicant did not submit any observations.<\/p>\n
45.\u00a0\u00a0The Court has previously accepted on several occasions that a witness\u2019s state of health or the fact that he or she has been undergoing inpatient treatment might be a valid reason for his or her absence from a trial and for reading out his or her pre-trial statements as evidence (see, for example, Lawless v.theUnited Kingdom (dec.), no. 44324\/11, 16\u00a0October 2012, and Bobe\u015f v. Romania, no. 29752\/05, \u00a7 39, 9 July 2013). However, the Court further held in Zadumovv. Russia(no. 2257\/12, \u00a7\u00a054, 12\u00a0December 2017) that the acceptance of such a reason by the domestic courts should depend not on an individual\u2019s medical history, but on the individual\u2019s condition at the time of the trial.<\/p>\n
46.\u00a0\u00a0In the instant case, the Court notes that at the hearing held on 26\u00a0August 2004 the applicant\u2019s lawyer submitted a medical report issued by Elaz\u0131\u011f Mental Hospitalon 3 September 2002 indicating that M.N.A. had been suffering from depression. However, M.N.A. gave statements before the Siirt Assize Court on 19 August 2004, approximately two years after the report in question. Having regard to the nature of M.N.A.\u2019s suffering and the considerably long period of time which elapsed between the date of the medical report and the date on which M.N.A. gave evidence before the Siirt Assize Court, the Court considers that the link between that report and the reliability of the evidence given by M.N.A. is tenuous (compare Zadumov, cited above, \u00a7\u00a053). Moreover, when convicting the applicant, the trial court also relied on, inter alia, the previous statements given by M.N.A. in 1995 which also included incriminatory remarks in respect of the applicant, and the statements made by the witnesses S.K. and B.\u00c7.<\/p>\n
47.\u00a0\u00a0In view of the above, the Court considers that the applicant\u2019s complaint under this heading is in essence related to the evaluation and assessment of evidence, which primarily falls within the domain of the domestic courts. Normally, issues such as the weight attached by the national courts to given items of evidence or to findings or assessments in issue before them for consideration are not for the Court to review. The Court should not act as a fourth-instance body, and will therefore not question under Article 6 \u00a7 1 the national courts\u2019 assessment, unless their findings can be regarded as arbitrary or manifestly unreasonable (see Moreira Ferreira v. Portugal (no. 2) [GC], no. 19867\/12, \u00a7 83 (b), 11\u00a0July 2017).<\/p>\n
48.\u00a0\u00a0Bearing in mind its limited role within the above-mentioned sphere, and having regard to the particular circumstances of the case and the absence of any other arguable claim against the reliability of the evidence given by M.N.A., the Court does not consider that the decisions of the domestic courts fell short of the requirements of a fair trial guaranteed under Article\u00a06 \u00a7 1 of the Convention.<\/p>\n
49.\u00a0\u00a0It follows that the applicant\u2019s complaint is manifestly ill-founded and must be rejected in accordance with Article 35 \u00a7\u00a7 3 (a) and 4 of the Convention.<\/p>\n
For these reasons, the Court, unanimously,<\/p>\n
Declares the application inadmissible.<\/p>\n
Done in English and notified in writing on 14 February 2019.<\/p>\n
Hasan Bak\u0131rc\u0131\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Paul Lemmens
\nDeputy Registrar\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n