CEDH · CASELAW;CLIN;ENG — 19 juin 2003

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Turkey - 28490/95 Judgment 19.6.2003 [Section III] Article 6 Article 6-3-d Examination of witnesses Conviction based to decisive degree on statements of police officers whom the accused was unable to question or have questioned: violation   Article 3 Inhuman treatment Ill-treatment in custody and effectiveness of the investigation: violation   Facts : In June 1992, the applicant, who was suspected of having participated in an armed confrontation with the gendarmes, was arrested by the security forces. When he was confronted by witnesses, three gendarmes identified him as one of the terrorists sought, but the applicant did not sign the record. The applicant was transferred to the district gendarmerie post for questioning; the evidence adduced before the court does not allow the circumstances to be established; the applicant claimed to have been subjected to ill-treatment. The medical examinations carried out while he was in custody revealed a number of grazes and bruises. In July 1992, the applicant was placed in provisional detention and prosecuted for separatism and undermining national security. He appeared before the National Security Court, which read the statements of the gendarmes who had identified him during the judicial investigation. The applicant challenged them and disputed the record of the witness confrontation and all the charges, and also the gendarmes’ statements. The court decided, for “road safety reasons”, to take evidence from the three gendarmes by commission rogatory. Thus, two photographs of the applicant were sent to a court charged with taking evidence from the witnesses. The applicant contended that the witness statements could not be regarded as evidence against him, since he had been identified from photographs and therefore without a confrontation. The applicant also refused to acknowledge his statements (in which he admitted the offences) made, under duress, at the stage of the judicial investigation. In March 1994, the National Security Court, composed of three judges, one a military judge, declared the applicant guilty as charged and sentenced him to death, commuted to life imprisonment. The Court took into account the gendarmes’ evidence, the applicants’ statements made during the investigation by the security forces and the records of the investigations. The Court of Cassation upheld the judgment. In April 1997, following communication of the application by the Court to the Turkish Government, a criminal investigation was opened into the ill-treatment allegedly received by the applicant. A villager who had witnessed the applicant’s arrest stated that the applicant had taken refuge under the bed and that the gendarmes had used force to arrest him because he resisted arrest; this was confirmed by the mayor of the village. The investigation led to no action being taken. In the investigation into the events which had taken place when the applicant was being questioned at the district gendarmerie post, the doctor who had examined the applicant stated that the lesions which he had found could have been the consequence of blows. As the acts of violence had been committed in the exercise of the gendarmes’ duties, the file was sent to an administrative committee, in application of the law on proceedings against officials. The administrative investigation led to no action being taken. Law : Article 3 – In the absence of satisfactory explanations from the Government concerning the lesions noted in the medical reports on the applicant’s physical condition, and in the light of the lack of thoroughness of the investigation in that regard, it is established that the applicant received at least a number of blows while in custody. The acts complained of were of a certain gravity, in addition whereto the applicant was kept in solitary confinement while in custody, which lasted for fifteen days. The treatment complained of was inhuman and degrading. Conclusion : violation (unanimously). Article 6 § 1 and 6 § 3 (d) – The Court has found that there was a violation of the right to an independent and impartial tribunal owing to the composition of the National Security Court (cf. the Incal and Çiraklar judgments). In earlier cases the Court had held that a tribunal whose lack of independence and impartiality has been established cannot in any circumstances guarantee a fair trial and that, accordingly, there was no need to examine the complaints relating to the fairness of the proceedings before that tribunal. In this case, however, the Court considers that it must examine the complaint alleging lack of fairness in the proceedings before the Security Court, having regard in particular to the severity of the penalty imposed on the applicant, to the fact that the principal evidence accepted is disputed by the applicant and to the finding of a violation of Article 3 owing to the treatment inflicted on the applicant while he was in custody. The Court considers that it is only by doing so that it will be able to adjudicate on the merits of the applicant’s main allegation that the charge against him could not have been regarded as substantiated had he had the benefit of a fair trial. The trial court accepted that the applicant had committed the offences of which he was convicted by relying on statements by the applicant recorded while he was in custody, which were confirmed by other evidence, such as the confrontation which was also supposed to have taken place before the trial and the statements of the gendarmes obtained by means of a commission rogatory. The Court concluded that the conditions to which the applicant was subjected while in custody gave rise to a violation of Article 3.   In that regard, it observes that Turkish legislation does not appear to attach to admissions obtained while the person concerned is being questioned but disputed before the court any decisive consequence for the perspectives of the defence. Although it is not its place to examine in the abstract the question of the admissibility of evidence in criminal law, the Court finds it regrettable that in this case the National Security Court did not make a preliminary determination of that question before going on to examine the merits of the case. Such a preliminary examination would have put the national courts in a position to sanction unlawful methods used to obtain incriminating evidence. Furthermore, the applicant did not have legal assistance at the stage of the investigation, during which the main evidence was obtained. In that regard, it was crucial that the prosecution witnesses were heard by the trial court, which alone could have examined at close quarters their conduct and the credibility of the versions which they gave. The applicant’s conviction is decisively based on the statements of the gendarmes obtained in the course of the investigation and then by means of commission rogatory during the trial, in the absence of the applicant and his legal representative. The applicant was unable to examine or have examined the persons who made those statements, either during the investigation or during the trial. In spite of the applicant’s requests, those witnesses for the prosecution were not heard and did not appear directly before the trial court. The absence of any confrontation before the trial court deprived the applicant, in part, of a fair hearing. The undeniable difficulties of the fight against terrorism cannot serve to limit to such an extent the rights of defence of an accused. Conclusion : violation (unanimously). Article 41 – The Court awards the applicant the sum of 25,000 € for the harm sustained. It awards costs and expenses.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes