DEMIR v. GERMANY

FIFTH SECTION

DECISION

Application no. 67976/11
Muzzafer DEMIR
against Germany

The European Court of Human Rights (Fifth Section), sitting on 7 May 2018 as a Committee composed of:

Yonko Grozev, President,
Angelika Nußberger,
Gabriele Kucsko-Stadlmayer, judges,
and Milan Blaško, Deputy Section Registrar,

Having regard to the above application lodged on 28 October 2011,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Muzzafer Demir, is a German national who was born in 1960 and is detained in Butzbach Prison. He was represented before the Court by Mr Norouzi, a lawyer practising in Berlin. The German Government (“the Government”) were represented by two of their Agents, Ms K. Behr and Mr H.-J. Behrens of the Federal Ministry of Justice and Consumer Protection.

2. Relying on Article 6 §§ 1 and 3 (d) of the Convention, the applicant alleged, in particular, that the criminal proceedings against him had been unfair as neither he nor his counsel had been granted an opportunity at any stage of the proceedings to examine the only direct witnesses – G.B., V.T., E.A. and the anonymous witnesses referred to by the witness Tü. – to the crime allegedly committed by him in Kovancılar in June 2006, on whose statements the Darmstadt Regional Court had relied in convicting him.

3. On 9 May 2016 this complaint was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

A. Proceedings before the Darmstadt Regional Court

4. By a judgment of 18 March 2009 the Darmstadt Regional Court (“the Regional Court”) considered that the applicant and his brother had acted upon a joint plan, resulting in each perpetrator being liable for the acts committed by his accomplices under Article 25 § 2 of the Criminal Code, convicting him as an accomplice (Mittäter, see paragraph 42 below) to the murder of S. and sentencing him to life imprisonment. The crime was committed in Kovancılar, a village in the east Anatolian province of Elazığ in Turkey, on 12 June 2006. Two of his brothers, M. and Y., were convicted of that murder by the Elazığ High Criminal Court (Ağır Ceza Mahkemesi) on 5 March 2008. The Turkish authorities had also requested the extradition of the applicant and of a third brother, I., who was an Austrian national, from Austria, but to no avail.

1. Facts established by the Regional Court

5. The facts as established by the Regional Court are as follows. In 2005 the applicant’s younger brother, M., had an argument with a village leader S. (the later victim) about his duty to pay a communal grazing fee to a local shepherd. The next day he was attacked by S.’s relatives and wounded. Subsequently, the applicant and his brothers developed a plan to kill S.

6. To this end, the applicant booked flights for 8 June 2006 from Frankfurt am Main to Ankara and return flights on 25 June 2006 for his brothers, Y. and I., and for himself. He also rented a car from the E. travel agency for the same period.

7. On 8 June 2006 the applicant and his brothers flew to Ankara, where they received the rental car, a grey Renault Mégane with the registration 06‑AG-5662, and droveto Elazığ province. Instead of going to their family’s village, the applicant and his brother I., in the evening of 9 June 2006, checked into a hotel in Karakoçan. They showed unknown identity cards without photos to the hotel employee – they denied possessing Turkish identity cards or passports – and paid in cash for the night in advance.

8. On 10 and 11 June 2006 they continued planning the murder, exploring the whereabouts of S. and obtaining the murder weapons – two hatchets and a knife. Each night they returned to the hotel between 11.30 and 11.50 p.m. and rented the same room, always paying in cash.

9. In the early morning of 12 June 2006 (the day of the offence) the applicant and his brother I. went to S.D.’s (their brother-in-law) place of residence in the town of Elazığ where they met their brother M. The three brothers then went to an unknown place where they picked up another brother, Y., and continued to Kovancılar, a town located approximately 50 kilometres (straight-line distance) from the town of Elazığ.

10. Between 8.30 and 9 a.m. S. entered the Güven Kasabi butcher’s shop. Besides S., the shop’s owner, G.B., and V.T., a customer, were present. At around 9 a.m. the applicant’s three brothers followed S. into the butcher’s shop while the applicant waited for them in the getaway vehicle. Once inside the butcher’s shop the applicant’s brothers pushed S. against a side wall of the shop and hit and stabbed him with hatchets and a knife they had brought along until he was severely injured and bleeding heavily from an artery. They then left the shop, went to the rental car parked nearby, where the applicant was waiting for them, and fled.

11. While the applicant and his brothers left the crime scene, various eyewitnesses, amongst them G.B. and V.T., called the police. According to witnesses, most of whom were not willing to provide their personal details, three or four persons had fled the crime scene in a grey Renault Mégane with the registration number 06-AG-5662.

12. The applicant and his brothers fled to the village of Karakoçan to the north-east of Kovancılar.

13. At 11.17 a.m. E., a witness from the travel agency, called the applicant because the police had enquired about the current user of the rental car. The applicant and his brothers parked the car in a car park near the city of Palu and absconded in an unknown way.

14. The applicant went into hiding. About a week after the crime he and his brother Y. went to Istanbul and Diyarbakır. With fake identity documents and a human trafficker’s help they reached Greece and in the early morning of 20 June 2006 they crossed the Bulgarian border near Kulata. Between 3 and 4 p.m. on the same day they crossed the Romanian border near Ruse. From there, via an unknown route, the applicant returned to Germany.

2. Regional Court’s attempts to obtain witness statements during the preliminary proceedings and during the trial

15. Following the Regional Court’s request for international legal assistance with regard to the witnesses G.B. and V.T. in the preliminary proceedings, the German Embassy in Ankara, on 26 February 2008, informed the Ministry of Foreign Affairs that on 25 April 2008 testimony would be heard from these witnesses in the Elazığ High Criminal Court. The applicant’s and his counsel’s requests to attend this hearing were refused by the competent Turkish authorities.

16. The Regional Court forwarded this letter to the applicant and requested the submission of questions to be put to the witnesses. Pointing out that the Turkish case file had not been transmitted in its entirety and that the applicant had had no possibility to cross-examine the witnesses, the applicant refrained from submitting any questions. A request by the applicant to be represented by a Turkish lawyer was subsequently denied by the competent Turkish authorities.

17. On 25 April 2008 two German judges, a German prosecutor and a German translator heard evidence from G.B. and V.T. within the preliminary proceedings in the Elazığ High Criminal Court.

18. The Regional Court subsequently decided to open the main proceedings and asked, in the course of those proceedings and outside the legal-assistance procedure, for an audio-visual link to be set up in order for the hearing involving the witnesses G.B., V.T. and E.A. (who owned a shop in the vicinity of the crime scene) to be conducted by the presiding judge of the Regional Court.

19. On 1 August 2008 the Regional Court issued letters of request for assistance asking for summons to be issued to twenty-six witnesses to appear at the trial on 8 December 2008 before the Regional Court, or in the Elazığ High Criminal Court to be questioned by an audio-visual link from Germany.

20. The Turkish authorities refused the request for an audio-visual link to be set up in order to hear testimony from the witnesses, citing a lack of a legal basis in domestic law for witness examinations via an audio-visual link. At the same time, they forwarded the witness summons of, inter alia, G.B., V.T., E.A., the K. brothers and E.D. (see paragraph 27 below) to appear before the Regional Court. These witnesses did not appear.

3. Relevant evidence

(a) Statements of the witnesses G.B., V.T. and E.A.

21. By a decision of 16 December 2008 the Regional Court ordered that the records of the statements of G.B., V.T. and E.A., which they had made during the Turkish criminal proceedings and at the hearing on 25 April 2008, be read out at the trial and be admitted as evidence in the proceedings in accordance with Article 251 § 1, second sentence, of the Code of Criminal Procedure.

22. G.B., the butcher’s shop owner, had stated in his interview with the Turkish police on the day of the crime and to the prosecution authorities two days later that three men had entered his shop, attacked and inflicted heavy injuries on S., left the shop, got into a car and fled. On the day of the crime he had identified one of the men as the applicant, but had revoked this identification after having been presented with photographs of the applicant’s brothers. To the prosecution authorities he stated that other witnesses had told him that a fourth person had been waiting in the getaway car. During the criminal proceedings against two of the applicant’s brothers he had corrected himself and declared that he himself had not seen how the three men had got into the car and fled and that it had first been two people who had entered the shop and a third person had come in later and had then left again. On 25 April 2008, when questioned by the German judges, G.B. could not identify the applicant as one of the persons involved in the event and stated that two people had come into the shop and attacked S.

23. V.T. explained in the police interview on the day of the crime that three or four men had come into the shop and injured S., and had then left and got into a Renault Mégane with the plate number “06”. He made similar statements to the prosecution authorities two days later. During the criminal proceedings against two of the applicant’s brothers he stated that he had seen two or three people attacking S. On 25 April 2008 V.T. initially stated that it could have been four people in total but later corrected himself that there had been two or three people. He added that he could not recall whether a person had been waiting as a driver in the car or not.

24. When questioned by the police on the day of the crime, E.A. stated:

“While I was working in my shop I heard a noise ... I could not properly observe the scene, but when I saw three persons getting into a grey car and leaving at high speed ... I thought it advisable to go have a look outside ... I didn’t know the individuals fleeing. Because they had left before I stepped outside ... I could not see the registration number. But I heard at the crime scene that it had been a grey car with the registration number ‘06’ ...”

25. In the criminal proceedings against two of the applicant’s brothers in September 2007, E.A. declared the following:

“I was in my shop when I heard voices. I saw three men come out of the shop and get into [a] car with the registration number ‘06’. It was a grey vehicle. There was another person with them. There were four of them and they left the shop slowly. I noticed the event only when V.T. left the shop crying for help. Because three people had left the shop, I said it had been three entering it. I don’t recognise the individuals now sitting in the dock. Three people left the shop, I could not recognise them, and altogether it was four people. G.B. told me it had only been two people.”

26. The Regional Court heard statements from the German judges who had interviewed the witnesses G.B. and V.T. during the legal-assistance procedure and watched the video obtained thereof.

(b) The applicant’s statements

27. In his statements made during the trial, the applicant denied having had a role in the planning and commission of the murder but admitted that he had bought the plane tickets, rented the car and had been staying in Elazığ province when the crime had taken place. As far as he knew his three brothers had planned and executed S.’s murder, while he had only been on holiday in Turkey. Accordingly he had gone to Karakoçan to spend time in the hot springs and stayed in a hotel with I. On 12 June 2006 he and his brother I. had met their brother M. as well as with S.D. (his brother-in-law) and E.D. (S.D.’s brother) in the city of Elazığ early in the morning. M. and I. had borrowed his car; he himself had gone with E.D. to the K. brothers’ shop, where he had met several people and had taken tea. During that time M. had rung the K. brothers and informed them of the incident which had taken place in the meantime. He had forgotten his phone in the rental car and had got it back in Germany at the end of June. When he had asked about the rental car, M. had answered that he, I. and Y. had used it as a getaway vehicle and left it in the mountains. This information had frightened the applicant because he had feared coming under suspicion, too. He had discussed this matter with the K. brothers and had decided to hide and then to flee to Germany with fake identity documents and a human trafficker’s help, which he had subsequently done.

(c) Further evidence

28. On 10 and 11 December 2008 the Regional Court questioned Tü., the police officer leading the investigation in Turkey, and N.B. and S.D., family members of the applicant, as witnesses. Tü. stated that when he had arrived at the crime scene, several witnesses had confirmed that there had been a fourth person waiting in a car, but that these witnesses had refused to give their names and addresses. These witnesses had also remembered the vehicle registration number which had allowed the rental car to be identified. S.D. stated that E.D. had told him that the applicant had indeed been in the city of Elazığ in the shop of the K. brothers on the morning of the crime.

29. Furthermore, the Regional Court obtained an opinion of an expert witness, Dr R., with regard to the victim S.’s injuries.

30. Lastly, the call record of the applicant’s mobile phone number was read out in the hearing. It showed that on 12 June 2006 at 11.17 a.m. the phone received an incoming call from E. (the witness from the travel agency) and that at that time the phone was probably located in Karakoçan. E. stated in her interview that she had spoken with the applicant.

4. Regional Court’s judgment of 18 March 2009

31. When establishing the facts for its judgment convicting the applicant of murder, the Regional Court relied in particular on the records of the statements made by witnesses G.B., V.T. and E.A. in their interview in the course of the Turkish criminal proceedings and also, with regard to G.B. and V.T., on the statements made during the preliminary proceedings in the legal-assistance procedure.

32. In its judgment, which ran to fifty pages, the Regional Court pointed out that the applicant had himself admitted that his three brothers had killed S. in the butcher’s shop, which had been confirmed by G.B. and V.T. Although the Regional Court had not been able to examine these two witnesses in person, it found their statements to be credible because they corroborated each other in many details and were supported by the expert opinion regarding S.’s injuries. Furthermore, the statements had been repeated without significant changes during the different stages of the Turkish criminal proceedings and had not shown any tendency towards bias.

33. The Regional Court found that the way the crime had been executed showed that it had been planned and prepared. It considered the history of the dispute between the applicant’s brother M. and the victim S. and the joint motive the applicant and his three brothers had to kill S. out of revenge (see paragraph 5 above). The applicant had contributed to the planning and preparation of the crime by booking the plane tickets for his brothers I. and Y. and himself and by renting the car, which he had admitted himself (see paragraphs 6 and 27 above). He had also admitted that he had stayed in the hotel with his brother I. and that he had gone to the city of Elazığ in the morning of the crime with I. and also met his brother M. there. He had similarly admitted to leaving Turkey with fake identity documents and the help of a trafficker.

34. In so far as the applicant denied being present at the crime scene, the evidence taken disproved this notion. The court considered that the applicant had, at least, been the person waiting outside the butcher’s shop in the getaway car and had thus also been involved in the commission of the crime. In this regard it relied on E.A.’s statements during the criminal proceedings against the applicant’s brothers, in which he had stated that he had seen three men leaving the shop and that there had been four persons altogether (see paragraph 25 above). In the court’s opinion this statement was credible even though E.A. had not mentioned a fourth person waiting in the car when interviewed by the police on the day of the crime (see paragraph 24 above). He had not shown any tendency towards bias. Furthermore, his description of the events corroborated the statements of the investigating police officer, Tü., who affirmed at the hearing before the Regional Court that several witnesses, who were not willing to provide their personal details, had told him about a fourth person waiting in the car rented by the applicant. These witnesses had also remembered the vehicle registration number, which had allowed the rental car to be identified (see paragraph 28 above). Also G.B. had stated to the prosecution authorities that other witnesses had told him that a fourth person had been waiting in the getaway car (see paragraph 22 above).

35. The Regional Court considered that the applicant could not have been in the city of Elazığ on the morning of the crime as claimed by him and the witness S.D. The latter had given this statement based on hearsay while the alleged direct witnesses – the K. brothers – had refused to testify before the court (see paragraphs 27 and 28 above). Moreover, the call record indicated that the applicant had been in Karakoçan at 11.17 a.m., when the witness E. had called him (see paragraph 30 above). Karakoçan is located 77 kilometres (straight-line distance) from Elazığ, with a mountain between the two cities. The court did not find credible the applicant’s statement that he had forgotten his phone in the car.

36. To determine that the applicant’s liability was that of an accomplice to the murder, the Regional Court considered, in particular, that he had been involved in planning and preparation of the murder, that he had shared his brothers’ motive, and that he had been involved in the commission of the crime, as he had driven to the crime scene together with his brothers, waited in the car while they had attacked S. in the butcher’s shop and had subsequently fled together with them.

B. Proceedings before the Federal Court of Justice

37. The applicant appealed on points of law against the Regional Court’s judgment. He complained that he had not been able to examine the only direct and key witnesses to the offence committed in Kovancılar at any stage of the proceedings, in breach of Article 6 § 3 (d) of the Convention.

38. In written submissions dated 7 September 2009 the Federal Public Prosecutor General requested that the applicant’s appeal on points of law be dismissed by the Federal Court of Justice as manifestly ill-founded in written proceedings under Article 349 § 2 of the Code of Criminal Procedure. The Federal Public Prosecutor General argued that while it was true that the applicant had not had the opportunity at any stage of the proceedings to examine the witnesses, the proceedings had on the whole been fair. There was nothing to demonstrate that the restrictions on the defence’s right to examine E.A. had been imputable to the domestic authorities. With regard to the witnesses G.B. and V.T., the applicant had declined to submit questions in writing which could have been put to them by the judges during the hearing which had taken place in the Elazığ High Criminal Court. The Federal Public Prosecutor General considered that the witnesses’ statements had been corroborated by other weighty evidence.

39. By a decision of 17 March 2010 the Federal Court of Justice dismissed the applicant’s appeal on points of law as manifestly ill-founded. It found that the applicant’s rights under Article 6 § 3 (d) of the Convention had not been violated as the Turkish authorities’ conduct, which had led to the restrictions on the defence’s right to examine the witnesses, was not imputable to the German authorities. Even if it were, the statements in questions could still be relied on because the Regional Court had not based the applicant’s conviction solely on G.B.’s, V.T.’s and E.A.’s statements, but had also relied on other weighty pieces of evidence. These had included the role of the applicant as the eldest son, his confession that he organised the brothers’ trip to the crime scene, his behaviour in obtaining the hotel accommodation, the fact that the rental car had been abandoned, the complicated escape, the existence of a strong motive for the murder, and the obvious untenability of the applicant’s submissions. Furthermore, the Regional Court had exercised particular diligence in assessing the evidence.

C. Proceedings before the Federal Constitutional Court

40. In a constitutional complaint dated 28 May 2010 the applicant complained, in particular, that there had been a breach of his right to a fair trial and of his defence rights under Article 6 §§ 1 and 3 (d) of the Convention. He argued that the Turkish authorities’ conduct had been imputable to the German authorities and that neither he nor his counsel had had the opportunity to cross-examine the only direct witnesses to the crime at any stage of the proceedings. His respective submission under the heading “Legal Criticism” read as follows:

“The violation of the right of participation in the establishment of the facts as part of fair proceedings under the rule of law in accordance with Article 2 § 1 of the German Basic Law in conjunction with Article 20 § 3 of the Basic Law is therefore demonstrated by the fact that the applicant was at no point given the opportunity in Turkey to cross-examine, or to have cross-examined, either the witness [E.A.] or the witnesses who remained anonymous. The fact that it was the Turkish authorities who prevented the questioning, and who did not provide any sustainable grounds for the anonymity of the witnesses, does not mitigate this violation of a basic right.”

41. By a decision of 28 April 2011, the Federal Constitutional Court declined to consider the applicant’s complaint (no. 2 BvR 1186/11). It found that, even assuming that the impossibility to cross-examine the witness E.A. and the witnesses who had remained anonymous could be imputable to to the German judiciary, the criminal proceedings as a whole had been fair. The Regional Court had exercised great care and restraint when assessing the statements at issue and had not accorded decisive weight to them, but instead had also relied on a large amount of other evidence of great significance. It had, thus, adequately compensated for the restriction of the applicant’s defence rights in the evidentiary assessment.

D. Relevant domestic and international law and practice

1. Relevant provisions and practice concerning criminal liability as an accomplice

42. Article 25 § 2 of the Criminal Code provides that if more than one person commits an offence jointly, each of them shall be liable as an accomplice (Mittäter). According to the consistent case-law of the domestic courts, whether or not an accused was to be regarded as having been involved in an offence as an accomplice was to be assessed by the trial judge based on an overall assessment of all circumstances established. The relevant criteria are the degree to which the accomplice has an interest of his or her own in the commission of the offence, the scope of his or her contribution, including in the preparation of the offence, and the authority of action, or at least the will to have such authority (see Federal Court of Justice, no. 2 StR 482/94, judgment of 15 February 1995, § 6). For a person to be liable as an accomplice it is not a prerequisite that he or she be present at the crime scene when the actual offence is committed, provided the other criteria to be assessed in the context of the overall assessment indicate that he or she can be regarded as an accomplice (ibid., § 7).

2. Code of Criminal Procedure

43. The relevant provisions of the Code of Criminal Procedure and the case-law of the domestic courts concerning the conduct of the investigation proceedings and of the trial as well as appeals on points of law have been summarised in Schatschaschwili v. Germany ([GC], no. 9154/10, §§ 55-63, ECHR 2015).

3. Relevant international law concerning mutual legal assistance

44. Mutual assistance in criminal matters between Germany and Turkey is governed by the European Convention on Mutual Assistance in Criminal Matters of 20 April 1959. At the time of the domestic proceedings, neither Germany nor Turkey had ratified the Second Additional Protocol to that Convention, Article 9 of which included provisions on performing witness examinations by video conference as part of the legal-assistance proceedings.

COMPLAINT

45. The applicant complained under Article 6 §§ 1 and 3 (d) of the Convention that his trial had been unfair as neither he nor his counsel had been granted an opportunity at any stage of the criminal proceedings against him to examine the only direct witnesses – G.B., V.T., E.A. and the anonymous witnesses referred to by the witness Tü. – to the crime allegedly committed by him in Kovancılar in June 2006, on whose statements the Darmstadt Regional Court had relied in convicting him.

THE LAW

46. Article 6 §§ 1 and 3 (d) of the Convention, in so far as relevant, provide as follows:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...

3. Everyone charged with a criminal offence has the following minimum rights:

...

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; ...”

A. As regards the complaint about the admission as evidence of the statements of G.B. and V.T.

47. The Government submitted that the applicant had failed to exhaust domestic remedies, as required by Article 35 § 1 of the Convention, as regards the lack of an opportunity to examine the witnesses G.B. and V.T., arguing that the applicant had not raised this complaint in his constitutional complaint to the Federal Constitutional Court. They pointed out that he had, in that complaint, alleged a violation only of his right to a fair trial and of his defence rights as regards the admission as evidence of the statements of E.A. and the anonymous witnesses to whom Tü. had referred. He had briefly mentioned the witnesses G.B. and V.T. in the facts of his constitutional complaint, but he had not mentioned them at all in the text under the heading “legal criticism”, let alone elaborated a complaint that admitting their statements as evidence had violated his rights under the Convention. It was evident that G.B. and V.T. could not be understood as being “the witnesses in Turkey who had remained anonymous” (see paragraph 40 above), as the identity of G.B. and V.T. had been at all times known to him. Rather, the anonymous witnesses were those to whose statements at the scene of the crime Tü. had referred in his statement before the Darmstadt Regional Court (see paragraph 28 above). The statement on which the applicant’s counsel had relied (see paragraph 48 below) had been identical to a description that Tü. had reported of statements made by individuals whose identity had not been established. Consequently, the Federal Constitutional Court only examined whether the applicant’s rights had been breached in relation to the impossibility for him to cross-examine E.A. as well as the anonymous witnesses, as evidenced by the wording of its decision (see paragraph 41 above).

48. The applicant maintained that he had, in substance, objected to the examination of the witnesses G.B. and V.T. in his constitutional complaint. He had referred to those two witnesses in the factual submission of his complaint, which read as follows:

“The witness [E.A.] was not personally questioned during the main hearing. A provisional hearing in Turkey did not take place in this case. The reason was that after charges were pressed, two witnesses, who were present at the shop (the crime scene) during the crime, identified the applicant as one of the attackers owing to a dubious photo lineup. The charge rests on these descriptions. Within this questioning by the Turkish court, in which the applicant’s defence counsel was not allowed to attend but the Regional Court participated through a judge, the witnesses abandoned their original statement.”

(“Der Zeuge [E.A.] wurde in der Hauptverhandlung nicht persönlich vernommen. Eine kommissarische Vernehmung in der Türkei fand in seinem Fall nicht statt. Dies hing damit zusammen, dass nach der Anklage zunächst zwei Tatzeugen, die in dem Geschäft anwesend waren, in dem sich die Tat ereignete, den Beschwerdeführer (aufgrund freilich zweifelhafter Lichtbildvorlagen) als einen der Angreifer identifiziert hatten. Auf ihren Schilderungen ruhte auch die Anklage. Im Rahmen der von einem türkischen Gericht durchgeführten kommissarischen Vernehmung, an der die Verteidiger des Angeklagten nicht teilnehmen durften und das erkennende deutsche Gericht durch einen anwesenden Richter beteiligt war, rückten die Zeugen von ihren früheren Aussagen ab.“)

It had been of no harm that he had not referred to G.B. and V.T. by name, as the circumstance of the two witnesses being in the shop during the crime had inevitably led to the conclusion that these witnesses could only have been G.B. and V.T. The said submission had been of significance as only the adjusted statements given by G.B. and V.T. had corroborated the statements made by E.A. and the witness referred to by Tü. regarding the presence of a fourth person at the crime scene.

49. The Court observes that the applicant, in his constitutional complaint, solely alleged a violation of his right to a fair trial and of his defence rights as regards the admission as evidence of the statements made by E.A. and the anonymous witnesses to whom Tü. had referred (see paragraph 40 above). It considers that his statement relating to the witnesses G.B. and V.T., to which the applicant pointed, did not contain any arguments to the effect that he can be understood as alleging a violation of his rights under the Convention by the admission as evidence of their statements despite the impossibility for him to cross-examine them, or to have them cross-examined. He did therefore not provide the Federal Constitutional Court with the opportunity to redress this alleged breach of the Convention and did not raise this complaint “at least in substance” within the meaning of the Court’s case-law (see Gäfgen v. Germany [GC], no. 22978/05, § 144, ECHR 2010; and Karapanagiotou and Others v. Greece, no. 1571/08, § 29, 28 October 2010).

50. The Federal Constitutional Court, in line with the applicant’s submissions in his constitutional complaint, only examined whether the applicant’s rights had been breached in relation to the impossibility for him to cross-examine E.A. as well as the anonymous witnesses to whom Tü. had referred, as evidenced by the wording of its decision (see paragraph 41 above). The Federal Constitutional Court has, in other words, not ruled on the substance of the applicant’s complaint concerning the admission as evidence of the statements by the witnesses G.B. and V.T. (compare and contrast Verein gegen Tierfabriken Schweiz (VgT) v. Switzerland (no. 2) [GC], no. 32772/02, §§ 43-45, ECHR 2009; see also, mutatis mutandis, Gäfgen, cited above, § 143).

51. In the light of the foregoing, the Court considers that the applicant failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention in relation to the lack of opportunity to examine the witnesses G.B. and V.T. This complaint must therefore be rejected in accordance with Article 35 § 4 of the Convention.

B. Remainder of the application

1. The parties’ submissions

(a) The Government

52. The Government maintained that, in accordance with the Court’s case-law, the applicant’s trial had, as a whole, been fair. The German authorities had made all reasonable efforts to give the applicant or his counsel the opportunity to cross-examine the absent witnesses. The testimony of the absent witness E.A. that a fourth person had been waiting in the getaway car outside the butcher’s shop in which the applicant’s three brothers had attacked S. had been neither “sole or decisive” evidence for the applicant’s conviction as an accomplice to the murder, nor had it carried significant weight for it. The domestic courts had adequately counterbalanced the disadvantages under which the applicant’s defence had laboured as a consequence of the admission of E.A.’s statements as evidence.

(b) The applicant

53. The applicant submitted that there had been no good reason for the domestic courts to have admitted as evidence the untested statements of E.A. and of the anonymous witnesses referred to by Tü. The Turkish authorities had made it impossible for him to cross-examine these witnesses, in relation to E.A. owing to the refusal of an examination via an audio‑visual link, and in relation to the anonymous witnesses referred to by Tü. due to their insufficient efforts to identify these witnesses in order to summon them to appear before the Regional Court. He maintained that this conduct of the Turkish authorities was imputable to the German authorities.

54. His conviction as an accomplice to the murder of S. had been solely based on the untested statements of the absent witnesses. The Regional Court had based its finding that he had been an accomplice to the crime to a decisive extent on the finding that he had been present at the crime scene and had waited in the getaway car for his three brothers who had attacked S. in the butcher’s shop. For this latter finding, the Regional Court had relied solely on the untested statements of the absent witnesses, that is to say E.A., the anonymous witnesses to whom Tü. had referred, and G.B. The Regional Court could not have convicted him without these statements.

55. The impossibility for him and his counsel to cross-examine at any stage of the proceedings these absent witnesses, whose untested statements had been decisive for the applicant’s conviction, had entailed a disadvantage for the defence which could not have been compensated for and which had rendered the criminal proceedings against the applicant, taken as a whole, unfair. The applicant pointed out that E.A. had made his statement concerning the presence of a fourth person at the crime scene only in the main proceedings against two of the applicant’s brothers in Turkey, more than a year after the crime; he had not mentioned a fourth person in his police interview or to the prosecution authorities shortly after the crime. Cross-examining E.A. would have given the defence the opportunity to cast severe doubt as to the reliability of E.A.’s statements as regards the presence of a fourth person at the crime scene. It would not have been possible to compensate for the lack of an opportunity to cross-examine by way of putting questions to the absent witnesses. E.A. had also, unlike G.B. and V.T., not been examined by the German judges in Turkey as part of the legal-assistance procedure. In any event, the applicant’s counsel would not have been allowed to attend that hearing (see paragraph 15 above). The record of E.A.’s statement in the Turkish criminal proceedings – during which neither the applicant nor his counsel had been present – was a summary of half a page which did not indicate the questions asked. The Regional Court had not exercised the extreme care required when examining that statement.

2. The Court’s assessment

(a) General principles

56. The relevant general principles, as set out, in particular, in Al‑Khawaja and Tahery (cited above) and in Schatschaschwili (cited above), have recently been summarised in Bátěk and Others v. the Czech Republic (no. 54146/09, §§ 36-40, 12 January 2017).

(b) Application of these principles to the present case

57. The Court observes that the Regional Court did not have recourse to international legal assistance with regard to questioning E.A. within the preliminary proceedings – unlike with regard to G.B. and V.T., who were questioned by German judges on 25 April 2008 and whose statements were then introduced into the main proceedings before the Regional Court in the form of a video recording (see paragraphs 15, 17 and 26 above). It appears from the documents submitted that this was, at least in part, because E.A.’s testimony concerning the applicant’s presence at the crime scene became relevant only at a later point of the criminal proceedings in Turkey, after G.B. and V.T. had changed their statements in this regard. Notwithstanding the Regional Court’s further efforts to enable an examination of E.A. in the course of the main proceedings (see paragraphs 18-20 above), the Court is not convinced that the Regional Court made all reasonable efforts to secure the attendance of E.A. before considering him to be unreachable, as it could have had recourse to international legal assistance as it had with regard to G.B and V.T.

58. Having regard to Regional Court’s assessment of evidence, the Court considers it possible that that court would, without relying on E.A.’s testimony, not have found that the applicant had been present at the crime scene (see paragraph 34 above). It observes, however, that according to the consistent case-law of the domestic courts, being present at the crime scene is not a prerequisite for being an accomplice to a crime; instead, an overall assessment of various aspects of the case is called for in this regard (see paragraph 42 above). The Regional Court based its finding that the applicant was an accomplice to the murder on several considerations – inter alia, his contribution to the planning and preparation of the crime, that he shared his brothers’ motive, and his complicated escape – rather than on his presence at the crime scene alone (see paragraphs 31-36 above). The Federal Court of Justice, when dismissing the applicant’s appeal on points of law, considered that the remaining determinations made by the Regional Court indicated, in a significant and weighty way, that the applicant had been involved as an accomplice (see paragraph 39 above). The Federal Constitutional Court also emphasised that there was a large amount of other important evidence (see paragraph 41 above). The Court therefore considers that E.A.’s testimony was not the sole or decisive basis for the applicant’s conviction and that it even appears doubtful whether it carried significant weight.

59. As to whether there were sufficient counterbalancing factors to compensate for the handicaps under which the defence laboured as a result of the admission of untested witness evidence at trial (see Schatschaschwili, cited above, §§ 125 and 145), the Court observes that E.A. was not questioned by German judges as part of the legal-assistance procedure and that there was no video of any of his testimony made in Turkey which the Regional Court could watch to assess his demeanour. However, the Regional Court examined E.A.’s credibility and the reliability of his statement in a careful manner and thoroughly reasoned its assessment in that regard. Also, it did not base its conclusion that the applicant had been present at the crime scene exclusively on E.A.’s testimony, but also on the hearsay evidence provided by Tü. and G.B. Moreover, the Regional Court established that there was ample incriminating evidence concerning the applicant’s key role in the preparation and planning of the crime and his strong interest in it being carried out. The Court sees no arbitrariness in the domestic courts’ finding that the applicant was an accomplice to the murder and considers that it treated E.A.’s testimony with caution and that it also relied on other substantial incriminating evidence. The applicant had the opportunity to present his own version of the events and to contest the credibility of the absent witness E.A., whose identity was known to the defence, pointing out any incoherence or inconsistency with the other evidence. He was furthermore given the possibility to put written questions to the absent witnesses G.B. and V.T., which could have pointed the Regional Court toward issues that needed further clarification, but did not make use of that opportunity.

60. In making an assessment of the overall fairness of the trial (see Schatschaschwili, cited above, § 161), the Court, having regard to the foregoing considerations, notably the weight of E.A.’s statement for the applicant’s conviction, the Regional Court’s approach to assessing that statement, the availability and strength of further incriminating evidence and the compensatory procedural measures taken by the Regional Court, finds that the counterbalancing factors were capable of compensating for the handicaps under which the defence laboured. It cannot conclude that the criminal proceedings against the applicant, looked at as a whole, were rendered unfair by the admission as evidence of the statement by the absent witness E.A.

61. As regards the applicant’s complaint about the admission as evidence of the statements of the anonymous witnesses to whom the witness Tü. had referred, the Court observes that Tü. was examined before the Regional Court, where he testified that the witnesses, who had been present at the crime scene and who were not willing to give their personal details, had told him that a fourth person had been waiting in the vehicle outside the butcher’s shop (see paragraph 28 above). The Regional Court qualified Tü.’s statement as hearsay evidence and it is evident from that court’s reasoning that this evidence did not carry significant weight for the applicant’s conviction. There is no appearance that the applicant’s rights under Article 6 §§ 1 and 3 (d) of the Convention were disrespected due to the impossibility for him to cross-examine these anonymous witnesses.

62. Accordingly, 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.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 31 May 2018.

Milan BlaškoYonko Grozev
              Deputy RegistrarPresident

 

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