SECOND SECTION
CASE OF ÇONGAR AND KALA v. TURKEY
(Applications nos. 62013/12 and 62428/12)
JUDGMENT
STRASBOURG
18 January 2022
This judgment is final but it may be subject to editorial revision.
In the case of Çongar and Kala v. Turkey,
The European Court of Human Rights (Second Section), sitting as a Committee composed of:
Carlo Ranzoni, President,
Egidijus Kūris,
Pauliine Koskelo, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to:
the applications (nos. 62013/12 and 62428/12) 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”) on 20 July 2012 by two Turkish nationals Mr Umut Çongar and Mr Nesimi Kala (“the applicants”), who were both born in 1987 and lived in Tunceli, and were represented by Mr S. Abdil, a lawyer practising in Ankara;
the decision to give notice of the complaint under Article 6 of the Convention to the Turkish Government (“the Government”), represented by their Agent, Mr Hacı Ali Açıkgül, Head of the Department of Human Rights of the Ministry of Justice of the Republic of Turkey and to declare the remainder of the applications inadmissible;
Having regard to the unilateral declarations submitted by the respondent Government on 6 September 2021 requesting the Court to strike the applications out of its list of cases;
the parties’ observations;
Having deliberated in private on 14 December 2021,
Delivers the following judgment, which was adopted on that date:
SUBJECT-MATTER OF THE CASE
1. The applications concern the alleged unfairness of criminal proceedings against the applicants owing to their inability to examine an anonymous witness at any stage of the proceedings.
2. The applicants were tried for, and found guilty of, being members of an armed terrorist organisation under Article 314 § 2 of the Criminal Code and sentenced to six years and three months’ imprisonment each. On 21 October 2010, the Malatya Assize Court convicted the applicants on the basis, inter alia, of the following elements: (i) participation in several unlawful meetings, a hunger strike allegedly organised in accordance with the instructions of the PKK (Workers’ Party of Kurdistan), and attending a funeral of a member thereof, (ii) chanting slogans in favour of the PKK during these activities, (iii) written propaganda material and photos of the leader of the PKK seized from the personal computers of the accused, (iv) the content of the applicants’ intercepted telephone communications and email exchanges, and (v) statements made by the anonymous witness "Gömlek". On 7 December 2011 the Court of Cassation upheld the trial court’s decision.
3. At no stage of the proceedings could the applicants or their lawyers examine the anonymous witness, who gave evidence before the Bingöl Assize Court in camera, pursuant to the letters of request issued by the trial court. Even though the trial court invited the applicants and their lawyers to submit written questions to be put to the anonymous witness, the court decided not to ask these questions to the witness, explaining that its comparison of the written questions put forward by the defence and the statements made by the anonymous witness led it to conclude that the questions would not contribute to the case.
THE COURT’S ASSESSMENT
THE GOVERNMENT’S REQUEST TO STRIKE OUT THE APPLICATION UNDER ARTICLE 37 OF THE CONVENTION4. On 6 September 2021 the Government submitted unilateral declarations in respect of each applicant with a view to resolving the case and invited the Court to strike out the applications in accordance with Article 37 of the Convention.
5. Noting that the unilateral declarations have been submitted at a late stage, the Court decides not to admit them to the files. It therefore rejects the Government’s request to strike the applications out under Article 37 of the Convention and will accordingly pursue its examination of the admissibility and merits of the case.
joinder of applications6. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment, pursuant to Rule 42 § 1 of the Rules of Court.
ALLEGED VIOLATION OF ARTICLE 6 §§ 1 and 3 (d) OF THE CONVENTION7. The applicants argued that the trial court had deprived them of the opportunity to examine or have examined the anonymous witness, in breach of their right to a fair trial as protected by Article 6 of the Convention.
8. The Government invited the Court to declare the applications inadmissible, submitting that the applicants’ complaints were of a fourth-instance nature as they were aimed at an assessment of the evidence and the outcome of the trial. They further argued that the overall fairness of the criminal proceedings against the applicants had not been prejudiced owing to the use by the domestic courts of the anonymous witness’s statements, referring to (i) the justified need to keep his or her identity secret, (ii) the weight of the remaining evidence and (iii) the procedural safeguards which had enabled a fair and proper assessment of those statements, including, in particular the opportunity to put written questions to the anonymous witness.
9. The Court is called upon to examine whether the applicants were unable to examine the anonymous witness at any stage of the proceedings (Article 6 § 3 (d)), and, if so, whether that procedural shortcoming was such as to undermine the overall fairness of the criminal proceedings (Article 6 § 1); this task is slightly different from that described by the Government (see Murtazaliyeva v. Russia [GC], no. 36658/05, § 149, 18 December 2018). Accordingly, the Court rejects the Government’s objection. The applications are neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. They must therefore be declared admissible.
10. The principles regarding the right to obtain the attendance and examination of witnesses, including anonymous ones, can be found in Al‑Khawaja and Tahery v. the United Kingdom ([GC], nos. 26766/05 and 22228/06, §§ 118-51, ECHR 2011); Schatschaschwili v. Germany ([GC], no. 9154/10, §§ 100-131, ECHR 2015); and Süleyman v. Turkey, (no. 59453/10, §§ 61-66, 17 November 2020). To summarise, the above principles lay down a tripartite test whereby the Court is required to examine: (i) whether there was a good reason to keep the identity of the anonymous witness secret and for the non-attendance of the anonymous witness at the trial; (ii) whether the evidence given by the anonymous witness was the sole or decisive basis for the applicants’ 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 anonymous witness. Moreover, the Court has also pointed out that, as with all complaints under Article 6 § 3, the defendants’ inability to examine a witness should be assessed in the light of the impact that it had on the overall fairness of his trial.
11. The Court is prepared to assume that there was good reason to keep the identity of the anonymous witness secret in view of the security concerns arising from the fact that the testimony of that witness concerned issues related to an organisation with links to the PKK. That being said, the Court is not convinced that the examination of the anonymous witness by a court acting pursuant to the trial court’s letters of request and in the absence of the applicants or their lawyers was the least restrictive measure vis-à-vis the rights of the defence.
12. Next, the Court observes that the anonymous witness’s evidence carried, at least, significant weight in relation to the applicants’ conviction, having regard, in particular, to the fact that the remaining evidence does not seem, in itself, sufficient to show that the applicants had been members of an armed terrorist organisation. Furthermore, the Court discerns no effective procedural safeguards capable of compensating for the absence of the anonymous witness. In this respect, the Court reiterates that neither should the right to put written questions to an absent witness be seen as a substitute in the abstract for the fundamental right to examine or have the absent witness examined in person in such a case (see Süleyman, cited above, § 95). This is particularly so in the present case, as, in any event, the trial court decided not to put the written questions prepared by the defence to the anonymous witness, holding that the questions would not contribute to the case after ascertaining that answers to them had already been included in the written statements made by the anonymous witness.
13. In view of the foregoing considerations, the Court concludes that the applicants were not afforded proper safeguards commensurate with the nature of their complaint and the importance of what was at stake for them – namely six years and three months’ imprisonment – which could have enabled them to sufficiently test the reliability and truthfulness of the evidence given by the anonymous witness, in line with the guarantees of a fair trial under Article 6 of the Convention. There has therefore been a violation of Article 6 §§ 1 and 3 (d) of the Convention.
APPLICATION OF ARTICLE 41 OF THE CONVENTION
14. Without submitting any documentary proof in respect of their claims, each applicant claimed 30,000 euros (EUR) in respect of pecuniary damage and EUR 30,000 as regards non-pecuniary damage. The applicants also asked the Court to award them legal costs without specifying an amount.
15. The Government contested those claims.
16. The Court notes that the applicants failed to substantiate their pecuniary damage claims; it therefore rejects them. However, it finds that the applicants must have suffered non-pecuniary damage as a result of the violation of Article 6 §§ 1 and 3 (d) of the Convention found, which cannot be compensated for solely by the finding of a violation. The Court thus awards the applicants EUR 5,000 each under this head, plus any taxes that may be chargeable to them (see Ürek and Ürek v. Turkey, no. 74845/12, § 78, 30 July 2019). It further notes that Article 311 of the Code of Criminal Procedure allows for reopening of domestic proceedings in the event that the Court finds a violation of the Convention.
17. Lastly, the applicants’ claims for costs and expenses must be rejected, regard being had to the terms of Rule 60 § 2 of the Rules of Court and their failure to provide the Court with any documents in support of their claims.
18. The Court further considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
Rejects the Government’s request to strike the applications out of the list;Decides to join the applications;Declares the applications admissible;Holds that there has been a violation of Article 6 §§ 1 and 3 (d) of the Convention in respect of each applicant;Holds(a) that the respondent State is to pay the applicants, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 5,000 (five thousand euros), each, plus any tax that may be chargeable, in respect of non-pecuniary damage;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Dismisses the remainder of the applicants’ claim for just satisfaction.Done in English, and notified in writing on 18 January 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Hasan Bakırcı Carlo Ranzoni
Deputy Registrar President