CASE OF SAKA v. TÜRKİYE

SECOND SECTION

CASE OF SAKA v. TÜRKİYE

(Application no. 19664/18)

JUDGMENT
 

STRASBOURG

17 June 2025

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

In the case of Saka 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 Armin, Deputy Section Registrar,

Having regard to:

the application (no. 19664/18) 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 9 April 2018 by a Turkish national, Mr Rifat Saka (“the applicant”), who was born in 1959, lives in Şırnak and was represented by Mr M. Doğan, a lawyer practising in Şırnak;

the decision to give notice of the complaint, under Article 6 § 1 of the Convention, concerning the alleged unfairness of the criminal proceedings against the applicant 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, and to declare inadmissible the remainder of the application;

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 27 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 criminal proceedings against the applicant, on account of the domestic courts’ failure to deliver a reasoned judgment, including their duty to set out in full the reasons for which they relied on part of the statements made by a certain M.G. at the investigation stage, rather than on his subsequent statements as a witness during the applicant’s trial.

2.  On 7 October 2009 the Diyarbakır Public Prosecutor’s Office filed a bill of indictment against the applicant, charging him, under Article 220 § 7 of the Criminal Code read in the light of Article 314 § 2 of the same Code, with aiding and abetting the PKK (Workers’ Party of Kurdistan, an armed terrorist organisation) (see, for further information on those provisions as applicable at the relevant time, İmret v. Turkey (no. 2), no. 57316/10, §§ 19‑20, 10 July 2018). The charges were brought on the basis of the statements made to the police, the public prosecutor and the investigating judge by M.G., who confessed at the investigation stage of a separate set of criminal proceedings to being involved with the PKK. M.G. claimed, among other things, that the applicant had occasionally left food parcels outside his village for members of the PKK and had informed them about the presence of soldiers in the village.

3.  On 31 December 2009 the Diyarbakır Assize Court (“the trial court”) acquitted the applicant, holding that the statements made by M.G. could not be relied on, as they had been inconsistent and contradictory at every stage of the proceedings. The trial court further held that, even assuming that those statements could be used in evidence, M.G. had indicated that the applicant had assisted him partly on account of the PKK’s intimidating influence.

4.  On 24 December 2012 the Court of Cassation quashed the judgment acquitting the applicant, holding that the statements made by M.G. to the police, in the presence of a lawyer, provided sufficient grounds for a conviction (see paragraph 2 above). It remitted the case to the trial court for re-examination.

5.  On 10 September 2013 the trial court convicted the applicant of aiding and abetting the PKK, following an almost identical line of reasoning to that of the Court of Cassation. It found that the applicant had left food parcels outside his village for members of the PKK, had occasionally informed them about the presence of soldiers in the village and had attempted to flee when the police came to search his house. Accordingly, the trial court sentenced him to five years, two months and fifteen days’ imprisonment. The judgment did not indicate any reason as to why the trial court attached weight only to M.G.’s statements to the police, despite his statement at the trial that when he had gone to the village of Yarbaş in 2009 on his way to the Cizre province for dental treatment, he had obtained tobacco and sugar from two villagers, and not from the applicant. Nor did it indicate why it did not assess whether the applicant had acted out of fear of the PKK (a point which had been included in M.G.’s statements to the police and the public prosecutor, and had led the trial court to acquit the applicant in its initial judgment).

6.  The relevant part of the trial court’s reasoned judgment, entitled “Evaluation of the evidence, reasons and conclusion”, reads as follows:

“Having regard to the defence arguments, the witness statements, the initial statement given by M.G. (a defendant in another case) in the presence of a lawyer after his arrest, the search report and body-search report dated 19 September 2009, and the file as a whole, it has been established that the defendant committed the crime of aiding an armed terrorist organisation by leaving supplies outside [the village] for members of the terrorist organisation who were based in the surrounding countryside and informing members of the organisation about the positions of soldiers within the village. He is punished under Article 220 § 7 of the Turkish Criminal Code taken in conjunction with Article 314 § 2 [of the same] Code.”

7.  On 4 December 2013 the applicant lodged an appeal with the Court of Cassation against his conviction, arguing that M.G.’s original statements contradicted those he had subsequently made at the applicant’s trial. He further argued that, even assuming that he had assisted members of the PKK, the trial court had failed to make out the mental element of the offence (namely, that he had acted knowingly and willingly, so as to commit the offence in question). As M.G. had indicated in his statements to the public prosecutor that he and other PKK members had been armed when they arrived in the applicant’s village, the applicant argued that his will had inevitably been impaired, leading him to comply with their instructions.

8.  On 1 December 2016 the Court of Cassation upheld the applicant’s conviction without addressing the applicant’s grounds of appeal.

9.  The applicant subsequently lodged an individual application with the Constitutional Court, which on 22 January 2018 declared the application 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 a discussion of all submissions that could have had an impact on the outcome of the case. Given that the trial court’s judgment and reasoning had been upheld on appeal, the Constitutional Court considered that there had been no violation of the right to a reasoned judgment.

THE COURT’S ASSESSMENT

10.  The Government invited the Court to declare the application inadmissible as being manifestly ill-founded. They argued that the applicant’s complaints alleging a failure by the domestic courts to deliver a reasoned judgment essentially concerned the latter’s evaluation of the facts and admissibility as well as the assessment of the evidence and the application of domestic law. The domestic courts had properly examined the applicant’s case in detail at three levels of jurisdiction and their findings could not be considered arbitrary. The Government contended that the applicant’s complaints were thus of a fourth-instance nature.

11.  The applicant did not comment on this issue.

12.  The Court notes that the applicant’s complaints relate to a distinct procedural safeguard – namely the right under Article 6 § 1 of the Convention to a reasoned judgment. They cannot therefore be regarded as complaints of a fourth-instance nature. On that basis, the Government’s objection must be dismissed. The application is neither manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention nor inadmissible on any other grounds. It must therefore be declared admissible.

13.  The applicant submitted that his right to a reasoned judgment under Article 6 § 1 of the Convention had been violated, arguing that the domestic courts had relied only on part of the statements made by M.G. and had ignored the crucial part in which M.G., in his statements to the police, indicated that the applicant had helped him partly out of fear.

14.  The Government submitted that M.G. had told the police that the applicant had provided members of the PKK with supplies and had notified them of the presence of soldiers in his village in 2008. However, when giving evidence at the applicant’s trial, M.G. had referred to another incident in 2009, during which certain villagers – but not the applicant – had provided assistance. The Government argued that there had thus been no contradiction between the statements made by M.G. at the investigation stage and at the trial.

15.  In any event, the Government submitted that at no point during the proceedings had the applicant argued that he had been intimidated by M.G., as his defence submissions had been entirely based on denial of the incident. Thus, M.G.’s own assumption that the applicant must have helped the members of the PKK because he had been afraid of them was of no significance in establishing the material and mental elements of the offence of which the applicant was convicted. Had the applicant relied on coercion as a ground, it could have led the domestic courts to impose no punishment on him, in accordance with Article 28 of the Criminal Code.

16.  According to the Government, the trial court had analysed all the statements made by M.G. at the different stages of the proceedings and explained which of those statements it had relied on in convicting the applicant. In consequence, the domestic court’s decision not to rely on the statements made by M.G. at the applicant’s trial concerning the 2009 incident had not been decisive for the outcome of the proceedings. This was particularly so in that the applicant did not argue that M.G. had made his pre‑trial statements to the police as a result of ill-treatment or without the assistance of a lawyer. Nor did he allege that those statements ought to be considered as unlawful evidence for any other reason.

(a)   General principles

17.  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 in 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).

18.  The Court reiterates that, in deciding whether applicants have 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 he or she is 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, § 51, 28 January 2020).

19.  Moreover, where domestic judicial authorities are confronted by several conflicting versions of the truth offered by the same person, a final preference for a statement given at the pre-trial stage over one given in open court does not of itself raise an issue as regards the overall fairness of the proceedings where that preference is substantiated and the statement itself was given of the person’s own volition (see Makeyan and Others v. Armenia, no. 46435/09, § 47, 5 December 2019, and Mehmet Zeki Doğan v. Türkiye (no. 2), no. 3324/19, § 96, 13 February 2024).

(b)   Application of those principles to the present case

20.  The Court is called upon to assess whether the domestic courts discharged their duty, under Article 6 § 1 of the Convention, to give a reasoned judgment. In that connection, the Court notes that the trial court initially acquitted the applicant of aiding and abetting the PKK on the basis of two considerations: firstly, the contradictions in the statements made by M.G. at different stages of the proceedings, and secondly, the fact that M.G.’s statements indicated that villagers (including the applicant) had helped members of the PKK partly out of fear (an aspect which M.G. had mentioned to the police). However, the Court of Cassation subsequently quashed that judgment, finding that the applicant ought to be convicted in view of M.G.’s statements to the police. On the basis of those pre-trial statements, the trial court, when re-examining the case, subsequently found the applicant guilty of aiding and abetting the PKK by providing armed PKK members with food and information. In doing so, however, the trial court did not comment on the two crucial points which had previously led it to acquit him.

21.  While the Government argued that at the applicant’s trial M.G. had retracted only the part of his statements relating to events in 2009 and not those relating to the incident in 2008, in which the applicant was implicated, the trial court’s judgment does not contain any reasoning which would support the Government’s interpretation. The trial court made no distinction between the two incidents, and did not substantiate its choice to rely only on the statements that M.G. had given to the police. However, even assuming, in line with the Government’s argument, that the part of the statements that M.G. withdrew at the trial did not concern the part taken as the basis for the applicant’s conviction, the Court notes the following.

22.  The fact remains that the trial court remained silent in respect of the second point mentioned above, which was also contained in M.G.’s statements to the police, namely that the villagers, including the applicant, had helped the members of the PKK partly out of fear. The question whether a defendant’s will was impaired by coercion at the time of carrying out the material elements of an offence is, as the Government have conceded, a crucial point, which could in the present case have absolved the applicant from criminal liability. Given that the trial court engaged with this crucial point in its initial decision to acquit the applicant and that the Court of Cassation’s decision to quash the acquittal was based on M.G.’s statements to the police, which included the same point, the Court considers that it ought to have been properly addressed by the trial court when convicting the applicant of a serious offence. The Court does not overlook in this context that the documents in its possession do not indicate that the applicant raised that point in the trial court’s second examination of his case, following the Court of Cassation’s decision to quash the initial acquittal. However, in the light of the key importance of M.G.’s statement for determining the applicant’s guilt, this must be considered an essential issue which had to be addressed.

23.  Moreover, contrary to the Government’s argument that the applicant never raised this particular point, the Court notes that the applicant specifically raised it in his appeal to the Court of Cassation. However, the Court of Cassation provided no reply to that specific, pertinent and important point. Nor did the Constitutional Court remedy that shortcoming.

24.  In view of the foregoing, the Court cannot conclude that the domestic courts discharged their duty to give a reasoned judgment. There has accordingly been a violation of Article 6 § 1 of the Convention.

25.  The applicant asked the Court to award him an equitable sum in compensation in view of the documents in the case file, without specifying any amount or the type of damage sustained. He did not submit any claim in respect of costs and expenses.

26.  The Government contested the applicant’s claims.

27.  The Court notes that the applicant failed to substantiate his claim in respect of pecuniary damage; it therefore rejects this claim. However, ruling on an equitable basis, the Court 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).

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 17 June 2025, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Dorothee von Armin Jovan Ilievski
 Deputy Registrar President