Information Note on the Court’s case-law 258
January 2022
Faysal Pamuk v. Turkey - 430/13
Judgment 18.1.2022 [Section II]
Article 6
Article 6-3-d
Examination of witnesses
Conviction based on written statements of absent witnesses, who were examined by the courts of their places of residence, absent reasonable efforts by the trial court to secure their attendance: violation
Facts – The applicant was convicted for involvement in three different armed activities as a member of a terrorist organisation, namely the PKK (Workers’ Party of Kurdistan). He complained that, during the criminal proceedings, he had not been able to confront in person four witnesses who had earlier made incriminating statements about him.
Law – Article 6 §§ 1 and 3 (d)
(a) Whether there was a good reason for the non-attendance of the four witnesses – The applicant had confessed to his involvement with the PKK; however, he had denied having carried out or taken part in any armed activities. The public prosecutor had relied on the statements other organisation members had made in the course of different criminal proceedings, and of four witnesses in particular. The trial court had decided that those witnesses would be examined by the courts of their places of residence. Accordingly, the evidence of three of the four witnesses had been taken by courts other than the trial court, and the latter had admitted copies of their written statements as evidence in lieu of their live in-court-testimony.
The method chosen by the trial court, namely the examination of the witnesses by the courts of their places of residence if they were residing somewhere other than where the trial was taking place, appeared to result from the interpretation of the relevant provisions of the Code of Criminal Procedure. In other words, the crux of the applicant’s inability to examine the witnesses in person had stemmed from the trial court’s inflexible and mechanical approach, which had rested on the fact that the witnesses had been situated in different cities. That precluded any individualised assessment of the question of whether there had been any good reasons, in the sense of the term used by the Court in its case-law under Article 6 § 3 (d), for the witnesses’ non-attendance at the trial, and appeared to absolve the domestic courts of their duty to make all reasonable efforts to secure their attendance.
Indeed, the fact that that three of the witnesses had been serving their sentences in different prisons in Turkey at the time they had given evidence during the applicant’s trial, and had hence been under the exclusive authority of the State, had not prompted the trial court to assess whether it had been possible to hear them in person. Similarly, the steps taken by the domestic authorities to locate the fourth witness, which had consisted only of enquiring at his alleged work address and calling a mobile telephone number belonging to him, did not suggest that they had done everything reasonably expected of them to secure his presence.
In view of the above, the trial court’s decision to send letters of request to the courts had been the result of an inability to secure the attendance of the witnesses. No good reason had been shown for the non-attendance of those witnesses at trial.
(b) Whether the evidence of the absent witnesses was the sole or decisive basis for the applicant’s conviction – In establishing the applicant’s involvement in the three armed incidents indicated in the indictment and sentencing him to life imprisonment, the trial court had relied to a decisive extent on the evidence given by the absent witnesses.
(c) Whether there were sufficient counterbalancing factors to compensate for handicaps under which the defence laboured – Given the centrality of the witness evidence, weighty counterbalancing factors had been required to ensure the fairness of proceedings:
The method adopted by the trial court had not been capable of operating as a procedural safeguard in the absence of good reasons for the non-attendance of absent witnesses and when the trial court had had recourse to it without considering alternative measures for obtaining evidence from the absent witnesses. It had not allowed the defence to properly and fairly assess the credibility of the evidence. The Court did not accept the Government’s contention that the applicant’s lawyer had failed to attend the commission hearings, which would have enabled him to examine the witnesses. The accused and/or defence lawyers would have had to travel to different places with a view to attending the hearings where witnesses would be giving evidence: such a course of action would risk placing a disproportionate burden on the defence to an extent incompatible with the principle of equality of arms. In any event, it appeared that the applicant, who had remained in pre-trial detention throughout the criminal proceedings, could not attend the commission hearings before the different courts had he so wished. Moreover, the trial court’s approach was capable of jeopardising the principle of immediacy, in so far as it gave rise to a situation in which the trial court would not have the possibility to directly observe the demeanour and credibility of a certain witness giving evidence in the courts of his or her place of residence.
There was also no indication that the national courts had either approached the evidence given by the absent witnesses with any particular caution or that they had been aware that it had carried less weight owing to their absence from the trial.
Finally, and as regards the availability and strength of further incriminating evidence, the court had already made findings as regards the probative value of the evidence given by the absent witnesses for the applicant’s conviction.
In view of the foregoing considerations, the defence’s ability to test the truthfulness and reliability of the four witnesses’ evidence had been substantially affected and, in the circumstances of the present case, the overall fairness of the proceedings against the applicant had been tainted.
Conclusion: violation (unanimously).
Article 41: no claim made in respect of damage.
(See also Al-Khawaja and Tahery v. the United Kingdom [GC], 26766/05 and 22228/06, 15 December 2011, Legal Summary, and Schatschaschwili v. Germany [GC], 9154/10, 15 December 2015, Legal Summary)
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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