CASE OF OĞUZ v. TÜRKİYE

SECOND SECTION

CASE OF OĞUZ v. TÜRKİYE

(Application no. 37404/18)

JUDGMENT
 

STRASBOURG

28 November 2023

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

In the case of Oğuz v. Türkiye,

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

 Pauliine Koskelo, President,
 Lorraine Schembri Orland,
 Davor Derenčinović, judges,
and Dorothee von Arnim, Deputy Section Registrar,

Having regard to:

the application (no. 37404/18) 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 27 July 2018 by a Turkish national, Mr Aydın Oğuz (“the applicant”), who was born in 1989, lives in Giresun and was represented by Mr A. Bozan, a lawyer practising in Mersin;

the decision to give notice of the application 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 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 7 November 2023,

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

SUBJECT MATTER OF THE CASE

1.  The application concerns the alleged unfairness of criminal proceedings against the applicant on account of his inability to examine an anonymous witness whose statements were used by the trial court to convict him of various offences.

2.  On 9 October 2011 the applicant was arrested with a knife in his possession by police officers on a side street, following an illegal demonstration in the Demirtaş district of Mersin. He was released the same day. On 24 October 2011 the applicant was rearrested, following incriminating statements made on 19 October 2011 by a suspect, M.T., who was seventeen at the material time and had also attended the illegal demonstration on 9 October 2011, and by an anonymous witness who was given the pseudonym “Yeter Artık” (“the anonymous witness”).

3.  Both those persons gave statements to the public prosecutor, in the absence of a lawyer, and stated that the applicant was a member of a group called Demirtaş Apoist Youth Initiative (Demirtaş Apocu Gençlik İnisiyatifi), a sub-organisation of the PKK (Workers’ Party of Kurdistan), an armed terrorist organisation. The anonymous witness identified the applicant as one of the people who had thrown Molotov cocktails at two market stalls and set fire to a CCTV pole during the demonstration held on 9 October 2011. M.T. said the same thing in his statement. However, the anonymous witness also stated that the applicant had been among the people who had set fire to a post office (PTT) and had broken its windows in the Demirtaş district on 10 May 2011.

4.  On 14 February 2012 the Adana public prosecutor filed a bill of indictment against a number of people, including the applicant, accusing him of being a member of an armed terrorist organisation under Article 314 § 2 of the Criminal Code, disseminating propaganda in favour of an armed terrorist organisation under section 7(2) of the Prevention of Terrorism Act, damaging public property under Article 152 § 2 (a) of the Criminal Code and unauthorised possession of hazardous materials under Article 174 § 1 of the Criminal Code.

5.  On 16 May 2012 the trial court heard evidence from the anonymous witness at a hearing held in the absence of the applicant and his lawyer but in the presence of the public prosecutor. The anonymous witness reiterated his previous statements but added that he did not remember what the applicant had thrown at the post office in question.

6.  At a hearing held on 29 November 2012, the trial court rejected a request by the applicant’s lawyer to have the anonymous witness re-examined in the applicant’s presence on the grounds that that witness had already been heard on 16 May 2012.

7.  On 7 May 2013 the Adana Eighth Assize Court convicted the applicant of, inter alia, the following offences allegedly committed during the illegal demonstrations on 10 May 2011:

(i) damaging public property (namely the post office) under Article 152 § 2 (a) of the Criminal Code, for which he was sentenced to five years’ imprisonment; and

(ii) unauthorised possession of hazardous materials under Article 174 § 1 of the Criminal Code, for which he was sentenced to two months’ imprisonment and a judicial fine.

8.  The trial court also convicted the applicant of being a member of an armed terrorist organisation under Article 314 § 2 of the Criminal Code on the basis of his ties to the Demirtaş Apoist Youth Initiative and his involvement in the incidents on both 10 May 2011 and 9 October 2011. Lastly, the trial court convicted the applicant of damaging two market stalls and a CCTV pole on 9 October 2011 and of unauthorised possession of hazardous materials used in connection thereto and sentenced him to twenty-seven years and eleven months’ imprisonment in total and a judicial fine.

9.  The trial court referred in its judgment to, inter alia, the statements given by the anonymous witness and by M.T. It noted in its reasoning, without carrying out a separate assessment of evidence for each incident, that it had been impossible to identify from the CCTV video footage the people who had carried out the attacks in question, since they had covered their faces. It went on to conclude that the statements given by the anonymous witness and M.T had indicated that the applicant was a member of the Demirtaş Apoist Youth Initiative and had been among the people who had carried out the attacks.

10.  On 6 March 2014 the Court of Cassation upheld the applicant’s convictions.

11.  On 10 June 2014 the applicant lodged an individual application with the Constitutional Court complaining that his right to a fair trial had been violated on account of the trial court’s use of, inter alia, statements given by the anonymous witness in the absence of him and his lawyer to convict him.

12.  On 7 March 2018 the Constitutional Court found no violation of the applicant’s right to a fair trial on the grounds that the overall fairness of the criminal proceedings had not been undermined, because the statements of the anonymous witness had not been used as the sole or decisive evidence for the applicant’s conviction. It took the view that there had been other evidence such as M.T.’s statements, CCTV records and the arrest report showing that the applicant had been arrested with a knife in his possession while running away with other suspects immediately after the incident of 9 October 2011.

THE COURT’S ASSESSMENT

ALLEGED VIOLATION OF ARTICLE 6 §§ 1 and 3 (d) OF THE CONVENTIONThe applicant’s convictions under Article 152 § 2 (a) and Article 174 § 1 of the Criminal Code based on the incident of 10 May 2011

13.  The applicant complained under Article 6 of the Convention that his right to a fair trial had been violated on account of his inability to examine the anonymous witness and the use of that witness evidence by the trial court to convict him.Admissibility

14.  The Government raised a preliminary objection, submitting that the applicant’s complaint was of a fourth-instance nature since the applicant was in fact challenging the domestic courts’ assessment of evidence which was not arbitrary or manifestly unreasonable.

15.  The Court dismisses the Government’s objection since the main legal issue in the present case concerns a procedural right under Article 6 § 3 (d) of the Convention, rather than whether the domestic courts’ assessment of evidence was arbitrary or manifestly unreasonable.

16.  The Court notes that the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.Merits

(a)   General principles

17.  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, §§ 118-47, ECHR 2011), Schatschaschwili v. Germany ([GC], no. 9154/10, §§ 100-31, ECHR 2015) and Süleyman v. Turkey (no. 59453/10, §§ 61‑66, 17 November 2020). To summarise, according to the above principles the Court is required to examine: (i) whether there was a good reason for the identity of the anonymous witness to be kept secret and for the witness not to attend the trial or for that witness to be examined in the absence of the applicant (see in this regard, in particular, Süleyman, cited above, § 66, and Al-Khawaja and Tahery, cited above, § 127); (ii) whether the evidence given by the anonymous witness was the sole or decisive basis for the applicant’s 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 pointed out that, as with all complaints under Article 6 § 3, the defendant’s inability to examine a witness should be assessed in the light of the impact that it had on the overall fairness of his or her trial.

(b)   Application of the general principles to the instant case

18.  The Court observes at the outset that the applicant was convicted of (i) damaging property under Article 152 § 2 (a) of the Criminal Code, and (ii) unauthorised possession of hazardous materials under Article 174 § 1 of the Criminal Code on the basis of the events of 10 May 2011, that is to say, setting fire to a post office and breaking its windows. It further observes that in convicting the applicant the trial court used the incriminating statements given by the anonymous witness whom the applicant was unable to question. It should accordingly be examined whether, having regard to the above principles, the applicant’s trial has been fair in this regard.

(i)      Whether there was a good reason to keep the identity of the witness secret and to examine him in the absence of the applicant and his lawyer

19.  The Court notes that the anonymous witness was a former PKK member and that the criminal proceedings were based on violent acts allegedly carried out on behalf of that armed terrorist organisation. The Court is therefore prepared to assume that there was a good reason to keep the identity of the anonymous witness secret and to examine the anonymous witness in the absence of the applicant and his lawyer, namely, to protect him and his relatives from any possible reprisals or threats.

(ii)    Whether the evidence of the anonymous witness was the sole or decisive basis for the applicant’s conviction or carried significant weight in that regard

20.  The Court observes that the statements of the anonymous witness were the sole pieces of evidence for the applicant’s conviction, having regard, in particular, to the fact that the remaining items of evidence in the case file, namely M.T.’s statements, CCTV records and the arrest report dated 9 October 2011, were not relevant to the applicant’s convictions in so far as they were based on the incident of 10 May 2011. Accordingly, the Court is unable to conclude that a proper assessment has been made by the domestic courts on this point.

(iii)   Whether there were sufficient counterbalancing factors to compensate for the handicaps under which the defence laboured

21.  The Court notes that the trial court neither appears to have approached the anonymous witness’s statements with any particular caution nor is it apparent that was it aware that that evidence carried less weight owing to the witness having been examined in the absence of the applicant and his lawyer (compare also Süleyman, cited above, § 89). In that connection, as regards the applicant’s conviction for possessing hazardous materials in relation to the incident of 10 May 2011, the Court observes that the trial court failed to scrutinise the statements of the anonymous witness which had not contained a clear indication as to whether the applicant had been carrying or using a Molotov cocktail during the attack in question (see paragraph 5 above). The Court of Cassation also failed to address that shortcoming in its decision upholding the applicant’s conviction.

22.  Moreover and more importantly, the trial court failed to explain why it did not consider applying a specific safeguard provided for under Article 58 § 3 of the Code of Criminal Procedure, namely examination of a witness, including anonymously, via audio and video transmission (see Balta and Demir v. Turkey, no. 48628/12, § 58, 23 June 2015). Similarly, the trial court did not assess whether any other less stringent alternatives could have been used in taking evidence from the anonymous witness. The procedural imbalance in the present case was further exacerbated when the trial court examined the anonymous witness in the absence of the applicant and his lawyer, but in the presence of the public prosecutor (compare also Ürek and Ürek v. Turkey, no. 74845/12, §§ 52 and 63, 30 July 2019).

23.  The Court also notes that the measures put forward by the Government in their submissions were not sufficient safeguards which could have enabled the applicant 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. In particular, the absence of an explicit objection by the applicant to the statements of the anonymous witness being read out at the hearing cannot be interpreted as an unequivocal waiver on his part of the right to examine this witness (compare also Asani v. the former Yugoslav Republic of Macedonia, no. 27962/10, § 52, 1 February 2018). Nor should the right to put written questions to an anonymous witness be seen as a substitute in the abstract for the fundamental right to examine or have examined that witness in person (see, in particular, Süleyman, cited above, §§ 94‑95, with further references). The fact that the public prosecutor had recorded the anonymous witness’s identity and that the trial court had heard the anonymous witness directly and hence had the opportunity to form its own impression of his reliability cannot be regarded as decisive for the examination under Article 6 § 3 (d) of the Convention (see also Ürek and Ürek, cited above, § 66, and compare Pesukic v. Switzerland, no. 25088/07, § 50, 6 December 2012). Nor does the Constitutional Court seem to have carefully examined the applicant’s complaint and remedied that shortcoming (compare and contrast Pesukic, cited above, § 51). In any event, none of the measures referred to by the Government can, as stated above, be regarded as a sufficient counterbalancing element in view of, in particular, the fact that the trial court had already failed to implement the less stringent alternatives available such as the one provided for in Article 58 § 3 of the Code of Criminal Procedure (see paragraph 22 above).

24.  In view of the above, the Court considers that the applicant was not afforded proper safeguards commensurate with the nature of his complaint and the importance of what was at stake for him, namely five years and two months’ imprisonment in total and a judicial fine. It accordingly concludes that the applicant’s inability to examine or have examined the anonymous witness whose statements were used, without any sufficient counterbalancing procedural safeguards, by the trial court as the sole evidence to convict him rendered the criminal proceedings unfair. There has therefore been a violation of Article 6 §§ 1 and 3 (d) of the Convention.Remainder of the applicant’s convictions

25.  The Court observes firstly that the trial court convicted the applicant for being a member of an armed terrorist organisation under Article 314 § 2 of the Criminal Code on the basis of (i) his alleged ties to the PKK and (ii) four incidents that had taken place on 10 May 2011 and 9 October 2011 in which he had allegedly participated.

26.  It further observes that although the statements of the anonymous witness were used as the sole evidence in establishing the incident of 10 May 2011, which had been one of the four incidents in question, this was not the case for the other three incidents, namely damaging two market stalls and a CCTV pole on 9 October 2011, and for his alleged ties to the group referred to as Demirtaş Apoist Youth Initiative. In establishing these three incidents and the applicant’s alleged ties to the PKK, the trial court gave weight in its judgment not only to the statements of the anonymous witness, but also, and at least to a significant degree, to the statements of witness M.T. What is more, the applicant did not complain either of his inability to question witness M.T. or of the use made of his statements.

27.  That being the case, the Court is not convinced that the trial court relied solely or to a decisive or significant degree on the anonymous witness statements in convicting the applicant of being a member of an armed terrorist organisation.

28.  As regards the other offences allegedly committed on 9 October 2011, the Court considers that the applicant’s convictions for those offences were also not solely or to a decisive or significant degree based on the statements given by the anonymous witness when viewed in light of the strength of the remaining evidence, in particular the arrest report and the statements given by witness M.T.

29.  It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

30.  The applicant claimed 10,000 euros (EUR) in respect of non-pecuniary damage and EUR 1,380 in respect of costs and expenses incurred before the domestic courts and the Court. To support his claim, he referred to the Istanbul Bar Association’s scale of fees, without submitting any receipts or other relevant document.

31.  The Government contested the applicant’s claims.

32.  As for non-pecuniary damage, the Court considers that, having regard to the particular circumstances of the case, its finding of a violation of Article 6 §§ 1 and 3 (d) of the Convention constitutes in itself sufficient just satisfaction and makes no award under this head. It 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 Daştan v. Turkey, no. 37272/08, § 44, 10 October 2017).

33.  As for costs and expenses, the applicant failed to substantiate that he had actually incurred the costs claimed. Accordingly, the Court makes no award under this head (see also Altay v. Turkey (no. 2), no. 11236/09, §§ 87‑88, 9 April 2019).

FOR THESE REASONS, THE COURT, UNANIMOUSLY,Declares the complaint under Article 6 §§ 1 and 3 (d) of the Convention concerning the applicant’s convictions under Article 152 § 2 (a) and Article 174 § 1 of the Criminal Code, in so far as they concern the incident of 10 May 2011, admissible and the remainder of the application inadmissible;Holds that there has been a violation of Article 6 §§ 1 and 3 (d) of the Convention on account of the applicant’s inability to question the anonymous witness in relation to his convictions under Article 152 § 2 (a) and Article 174 § 1 of the Criminal Code in so far as they concern the incident of 10 May 2011;Holds that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant;Dismisses the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 28 November 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Dorothee von Arnim Pauliine Koskelo
 Deputy Registrar President

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