CASE OF CÖMERT v. TÜRKİYE

SECOND SECTION

CASE OF CÖMERT v. TÜRKİYE

(Application no. 16537/18)

JUDGMENT
 

STRASBOURG

10 June 2025

This judgment is final but it may be subject to editorial revision.

In the case of Cömert v. Türkiye,

The European Court of Human Rights (Second Section), sitting as a Committee composed of:

 Jovan Ilievski, President,
 Péter Paczolay,
 Davor Derenčinović, judges,
and Dorothee von Arnim, Deputy Section Registrar,

Having regard to:

the application (no. 16537/18) against the Republic of Türkiye lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 2 April 2018 by a Turkish national, Mr Hakan Cömert (“the applicant”), who was born in 1985, lives in Istanbul and was represented by Mr A.G. Sevimli, a lawyer practising in Istanbul;

the decision to give notice of the application to the Turkish Government (“the Government”), represented by their Agent at the time, Mr Hacı Ali Açıkgül, former Head of the Department of Human Rights of the Ministry of Justice of the Republic of Türkiye;

the parties’ observations;

the decision to reject the Government’s objection to the examination of the application by a Committee;

Having deliberated in private on 20 May 2025,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1.  The application concerns, under Article 6 § 1 of the Convention, the alleged unfairness of the criminal proceedings against the applicant owing to the domestic courts’ failure to deliver a reasoned judgment.

2.  In the course of investigations against several persons for the offence of membership of the DHKP/C, an armed terrorist organisation, E.K. and Y.E. stated to the investigation authorities that the applicant had carried out activities in Ümraniye on behalf of that organisation. In the subsequent criminal proceedings against E.K., at a hearing held on 30 July 2004, E.K. denied the statements he had previously made that incriminated the applicant, alleging that he had been ill-treated while in police custody.

3.  By a bill of indictment dated 18 May 2006, the Istanbul Public Prosecutor’s Office charged the applicant with being a member of an armed terrorist organisation.

4.  Subsequently, Y.E. equally denied the content of his police statements incriminating the applicant at a hearing held on 8 January 2007 in the context of the criminal proceedings against himself.

5.  On 30 December 2008 the Istanbul Thirteenth Assize Court (“the trial court”) acquitted the applicant of being a member of an armed terrorist organisation. The relevant part of its reasoned judgment reads as follows:

“There is no evidence against the defendants in the present case apart from the statements of E.K. and Y.E., which were taken during the investigations against them for the offence of membership of the DHKP/C [Revolutionary People’s Liberation Party-Front], an armed terrorist organisation. The defendants denied the accusations against them. The incriminating statements made by E.K. and Y.E. to the police and the statements that E.K. made to the public prosecutor and the investigating judge concerned the contention that the defendants had carried out activities in Ümraniye. It was not explained what type of activities the defendants had conducted in Ümraniye on behalf of the DHKP/C; which activities they had participated in; whether those activities were actually performed; and whether an organic link had been formed between the defendants and the terrorist organisation. No conviction could be delivered in respect of the defendants on the basis of an abstract statement such as ‘These two are in the Ümraniye 1 Mayıs Neighbourhood structure [of the DHKP/C]’, given by the two witnesses, who were investigated and subsequently tried for the offence of being members of the DHKP/C. The fact that the accused persons had visited the Fundamental Rights and Freedoms Association, and were known by the two witnesses who had made the statements against them, cannot be regarded as incriminating evidence. For this reason, both defendants should be acquitted pursuant to Article 223 § 2 (e) of the Code of Criminal Procedure for lack of evidence ...”

6.  On 7 February 2013 the Court of Cassation quashed the applicant’s acquittal, holding that he should have been convicted of being a member of an armed terrorist organisation in accordance with Article 314 § 2 of the Criminal Code in view of the following:

 “... the statements of E.K. and Y.E., defendants in a separate case and whose convictions were upheld by our Chamber, [showed] that the defendants were part of the Ümraniye 1 Mayıs Neighbourhood structure of the DHKP/C and the reports detailing their identification of the defendants in support of those statements, as well as the entire case file ...”

7.  At a hearing held on 3 May 2013 at the applicant’s trial Y.E. again denied the incriminating statements he had made in respect of the applicant at the investigation stage, arguing that he had not been assisted by a lawyer when making his statement to the police and that he had signed the statement form and the photo identification report without reading their content, as he had been exhausted at the time.

8.  On 14 May 2013 the trial court convicted the applicant under Article 314 § 2 of the Criminal Code of being a member of an armed terrorist organisation and sentenced him to six years and three months’ imprisonment. The relevant parts of the reasoned judgment read as follows:

“... having regard to the case file as a whole and the Court of Cassation’s decision that the defendants should have been convicted of being members of an armed terrorist organisation, in view of ‘the statements of E.K. and Y.E., defendants in a separate case and whose convictions were upheld by our Chamber, [showed] that the defendants were part of the Ümraniye 1 Mayıs Neighbourhood structure of the DHKP/C and the reports detailing their identification of the defendants in support of those statements, as well as the entire case file’, it is accepted that the defendants were members of an illegal armed terrorist organisation, as they were part of the Ümraniye 1 Mayıs Neighbourhood structure of the DHKP/C ...

The statement made by Y.E. during the trial stage, who was heard after the acquittal decision was overturned, has not been taken into account, having regard to the trial, the statement taken during the investigation stage and the time that has elapsed since his identification of the applicant [from the photographs presented by the police] ...

9.  On 18 June 2015 the Court of Cassation upheld the trial court’s judgment.

10.  On 4 October 2017 the Constitutional Court declared the individual application lodged by the applicant inadmissible as being manifestly ill‑founded. As regards the complaint concerning the right to a reasoned judgment, the Constitutional Court took the view that the trial court’s decision to convict the applicant had contained sufficient reasoning and had been delivered after an assessment of all the accusations and defence submissions that could have had an impact on the outcome of the case.

11.  The applicant alleged that the criminal proceedings against him had been unfair, within the meaning of Article 6 § 1 of the Convention, due to the domestic courts’ failure to deliver a reasoned judgment. He submitted that the courts had not properly explained why they had relied on the statements made by E.K. and Y.E. during the investigation stage, rather than on their subsequent statements at trial, which had been favourable to him. He further argued that the courts had failed to give reasons for his conviction for membership in an armed terrorist organisation, as they had not established a connection between the facts relied upon and the legal provision under which he was convicted.

THE COURT’S ASSESSMENT

ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

12.  The Government invited the Court to declare the application inadmissible as being manifestly ill-founded, arguing that the applicant’s complaints concerning the domestic courts’ failure to deliver a reasoned judgment essentially concerned their evaluation of the facts and the admissibility as well as the assessment of the evidence and application of domestic law; the complaints were therefore of a fourth-instance nature. The domestic courts had properly examined the applicant’s case in detail at three levels of jurisdiction and their findings could not be regarded as arbitrary.

13.  The applicant contested that claim.

14.  The Court notes that the applicant’s complaint relates to a distinct procedural safeguard, namely the right to a reasoned judgment under Article 6 § 1 of the Convention. It cannot thus be regarded as a complaint of a fourth-instance nature. Therefore, the Government’s objection must be dismissed. The application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

15.  The general principles concerning the right to a reasoned judgment have been summarised in Moreira Ferreira v. Portugal (no. 2) ([GC], no. 19867/12, § 84, 11 July 2017) and Ayetullah Ay v. Turkey (nos. 29084/07 and 1191/08, § 128, 27 October 2020). The Court reiterates that according to its established case-law reflecting a principle linked to the proper administration of justice, judgments of courts and tribunals should adequately state the reasons on which they are based. The extent to which this duty to give reasons applies may vary according to the nature of the decision and must be determined in the light of the circumstances of the case (see García Ruiz v. Spain [GC], no. 30544/96, § 26, ECHR 1999‑I). It must be clear from the decision that the essential issues of the case have been addressed (see Taxquet v. Belgium [GC], no. 926/05, § 91, ECHR 2010).

16.  The Court is called upon to assess whether the domestic courts discharged their duty, under Article 6 § 1 of the Convention, to deliver a reasoned judgment, including their duty to properly state the grounds on which they convicted the applicant, relying on the statements that E.K. and Y.E. had made during the investigation stage, instead of the statements that they had subsequently given which had been in the applicant’s favour.

17.  In that connection, the Court notes that the applicant’s conviction for membership of an armed terrorist organisation was based on the statements made by E.K. and Y.E. in the context of a separate set of criminal proceedings, who stated that the applicant was part of the Ümraniye 1 Mayıs Neighbourhood structure of the DHKP/C and identified him from photographs. It is important to note, however, that E.K. retracted his statements at the trial during the criminal proceedings against himself, as did Y.E. when examined by the trial court in the context of the criminal proceedings against the applicant.

18.  The Government argued that the trial court had justified its decision to attach weight to the statements made by Y.E. to the police, instead of the one he had given at the applicant’s trial, on account of the time that had elapsed since he had given his statements to the police and identified the applicant. As regards E.K., the Government submitted that the Istanbul Assize Court, which had tried and convicted E.K. of being a member of an armed terrorist organisation in a separate set of criminal proceedings, had found that he had given his statements to the police of his own free will, as demonstrated by the medical reports drawn up in respect of him.

19.  The Court is prepared to accept that the trial court indicated the reasons why it had attached more weight to the pre-trial statements notably of Y.E.. However, the Court is still required to examine whether the domestic courts discharged their duty to state the grounds on which they had concluded that the material and mental elements of the offence of which they had convicted the applicant, namely being a member of an armed terrorist organisation, had been established.

20.  In that connection, the Court notes that in its initial decision, the trial court acquitted the applicant, holding that no explanation was to be found in the statements of E.K. and Y.E. as regards (i) the type of activities that the defendants had carried out in Ümraniye on behalf of the DHKP/C; (ii) the activities they had attended; (iii) whether those activities had actually been performed; and (iv) the question whether an organic link had been formed between the defendants and the terrorist organisation. The trial court went on to state that “No conviction could be delivered in respect of the defendants on the basis of an abstract statement such as ‘These two are in the Ümraniye 1 Mayıs Neighbourhood structure [of the DHKP/C]’”. In the same vein, the trial court further stressed that the fact that the two witnesses knew the defendants and had stated that the defendants had visited a certain association could not be regarded as evidence against the applicant.

21.  Subsequently, the Court of Cassation quashed that acquittal judgment without examining either E.K. or Y.E. in person, but held that the applicant should be convicted of being a member of an armed terrorist organisation on the basis of the statements of those two witnesses made in the criminal proceedings against them, without ruling on the above‑mentioned elements that the trial court had found to be lacking in order to establish the offence.

22.  At this point, the Court reiterates that, in deciding whether an applicant has received a fair hearing, it does not take the place of the domestic courts, which are in the best position to assess the evidence before them, establish facts and interpret domestic law (see Ayetullah Ay, cited above, § 123, with further references). Furthermore, it is not the Court’s task to rule on whether the available evidence was sufficient for an applicant’s conviction or whether or not he or she was in fact guilty. These matters, in line with the principle of subsidiarity, are the province of the domestic courts (compare Karpenko v. Russia, no. 5605/04, § 80, 13 March 2012, and Mehmet Zeki Çelebi v. Turkey, no. 27582/07, § 50, 28 January 2020). That being said, and even though domestic courts have a certain discretion when choosing arguments in a particular case and admitting evidence in support of the parties’ submissions, an authority is obliged to justify its activities by giving reasons for its decisions (see, in the context of forensic evidence, Ayetullah Ay, cited above, § 155).

23.  Nevertheless, the Court observes that the trial court’s decision following the remittal, in which it convicted the applicant of being a member of an armed terrorist organisation, consisted of the reproduction of the precise wording used by the Court of Cassation and the phrase “... it is accepted that the defendants were members of an illegal armed terrorist organisation, as they were part of the Ümraniye 1 Mayıs Neighbourhood structure of the DHKP/C”. Crucially, the trial court had the same evidence before it as at the end of the initial trial when it had acquitted the applicant, namely the evidence given by the two witnesses and their identification of the applicant. Despite this, the court did not address any of the objective and subjective elements which it had previously considered decisive (see paragraphs 5 and 20 above) for establishing the material and mental elements of membership of an armed terrorist organisation. Nor did the Court of Cassation provide any such reasons either when it quashed the applicant’s acquittal or when it upheld the trial court’s second decision to convict him, which was, as indicated above, silent on those points. Similarly, the generic wording used by the Constitutional Court to dismiss the applicant’s complaint concerning the right to a reasoned judgment was not sufficient to fill this gap.

24.  In view of the above, the Court concludes that the domestic courts failed to discharge their duty to deliver a reasoned judgment under Article 6 § 1 of the Convention when convicting the applicant of a serious offence, namely membership of an armed terrorist organisation.

25.  There has accordingly been a violation of Article 6 § 1 of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

26.  The applicant claimed 20,000 euros (EUR) in respect of pecuniary damage, EUR 30,000 in respect of non-pecuniary damage and EUR 10,000 for costs and expenses.

27.  The Government contested those claims.

28.  The Court notes that the applicant failed to substantiate his pecuniary damage claim; it therefore rejects this claim. However, it awards the applicant EUR 6,000 in respect of non-pecuniary damage, plus any tax that may be chargeable. Notwithstanding that conclusion, the Court reiterates that the most appropriate form of redress would be a retrial in accordance with the requirements of Article 6 of the Convention, should the applicant so request (see Süleyman v. Turkey, no. 59453/10, § 110, 17 November 2020). Lastly, the Court dismisses the claim for costs and expenses on account of the applicant’s failure to submit any document to support it.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

(a)  that the respondent State is to pay the applicant, within three months, EUR 6,000 (six thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

Done in English, and notified in writing on 10 June 2025, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Dorothee von Arnim Jovan Ilievski
 Deputy Registrar President