SECOND SECTION
DECISION
Application no. 18815/18
Abdullah SAÇAK
against Türkiye
The European Court of Human Rights (Second Section), sitting on 30 August 2022 as a Committee composed of:
Egidijus Kūris, President,
Pauliine Koskelo,
Gilberto Felici, judges,
and Dorothee von Arnim, Deputy Section Registrar,
Having regard to:
the application (no. 18815/18) 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 11 April 2018 by a Turkish national, Mr Abdullah Saçak, who was born in 1978 and lives in Van (“the applicant”), represented by Mr U. Avcı, a lawyer practising in Van;
the decision to give notice of the complaint concerning the alleged unfairness of criminal proceedings against the applicant 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, and to declare the remainder of the application inadmissible;
the parties’ observations;
Having deliberated, decides as follows:
SUBJECT MATTER OF THE CASE
1. The application concerns the alleged unfairness of criminal proceedings against the applicant on account of the domestic courts’ failure to examine the authenticity and reliability of the main piece of evidence against him, namely intercepted telephone conversations in which he was alleged to have engaged.
2. On 4 December 2014 the Van Assize Court convicted the applicant of membership of a terrorist organisation, namely the PKK (the Workers’ Party of Kurdistan), and sentenced him to six years and three months’ imprisonment. The trial court held that the applicant and the other defendants (B.A., M.Ç. and M.B.) had engaged in telephone conversations with a PKK member code-named “Sipan” concerning the recruitment of members to the PKK, the provision of material support, such as clothing and fuel, and the transfer of intelligence information to the PKK.
3. Throughout the criminal proceedings, the defendants, including the applicant, denied ownership of the telephone number from which the intercepted calls had been made. The SIM card for the telephone number alleged to have been used by the applicant, namely a mobile telephone number ending in 4808, was not found at his house or on his person; neither was it registered under his name. Moreover, at a hearing held on 3 June 2014, the trial court dismissed the public prosecutor’s request that a voice analysis be conducted with a view to determining whether the defendants had participated in the intercepted telephone conversations, on the grounds that it would not have contributed to the further clarification of the case (dosyaya yenilik katmayacağı anlaşıldığından).
4. On 24 October 2016 the Court of Cassation upheld the trial court’s judgment.
5. On 6 March 2018 the Constitutional Court declared the applicant’s individual application inadmissible, holding that his complaints concerning the fairness of the criminal proceedings were of a fourth-instance nature.
THE COURT’S ASSESSMENT
6. The applicant complained that his conviction on the sole basis of the transcripts of telephone conversations in which he claimed not to have participated, together with the trial court’s failure to order a voice analysis in order to cast light on that point, had entailed a breach of his right to a fair trial under Article 6 of the Convention.
7. The Government submitted that the applicant’s complaints must be declared inadmissible, arguing that there was no reason to depart from the Constitutional Court’s findings.
8. The Court consider that it is not necessary to address the Government’s objection, as the application is in any event inadmissible for the following reasons.
9. The Court notes that the applicant’s allegation that his conviction was based on intercepted telephone calls made from the mobile telephone number ending in 4808, which had purportedly not belonged to him, was essentially a complaint that his conviction rested on evidence of dubious quality. The general principles with regard to such complaints can be found in Budak v. Turkey (no. 69762/12, § 74-90, 16 February 2021). In such cases, the Court’s role is to ascertain (i) whether an applicant has been able to put forward a prima facie case to challenge the lawfulness, authenticity, veracity or admissibility of the evidence used against him or her, and (ii) whether the domestic courts have conducted a thorough assessment, in an adversarial manner, of all the circumstances of the case (ibid., § 81, and see also, mutatis mutandis, Mehmet Zeki Çelebi v. Turkey, no. 27582/07, § 51, 28 January 2020).
10. The Court notes that the criminal proceedings against the applicant were closely connected with the evidence obtained as a result of the arrest of a certain M.A. and the search of a house belonging to him. M.A. was tried in a separate set of proceedings and convicted in a final judgment of being a member of the PKK. He was arrested inside a car which contained a gun and a large quantity of foodstuffs, medical products and batteries which he had presumably been attempting to supply to members of the PKK. The search of the house belonging to him also yielded a USB stick containing secret intelligence notes drawn up by the Van Anti-Terrorist Branch and a detailed list of the names and ranks of forty-nine law-enforcement officers who had attended a special course held at Van in October 2008. Furthermore, the contents of the USB stick in question and the digital data obtained from a co-defendant, M.Ç., who was tried and convicted in the same proceedings as the applicant, contained the same information.
11. The Court further notes that M.A. had asked another PKK member, code-named “Sipan”, to call a telephone number ending in 1242 for the provision of certain materials. In his statements to the gendarmerie on 20 September 2009, the applicant admitted to having used that telephone number and having known M.A., but explained that he did not know who “Sipan” was or why his number had been given to the latter. Nevertheless, the Court notes that the mobile telephone number of “Sipan” was found to have been saved as a contact in one of the SIM cards retrieved from the applicant’s house.
12. Furthermore, and despite the applicant’s contention that he had not used the mobile telephone number ending in 4808, the transcript of an intercepted telephone conversation dated 10 September 2009 demonstrated that when the user of that number called a certain “Selim” without introducing herself or himself, “Selim” replied “Abdullah, is that you?” and the user said “yes”.
13. Moreover, the communications data pertaining to the mobile telephone number ending in 4808, which consisted of, inter alia, (i) the number and the details of the calls made from and received on that number, (ii) information relating to the parties to the calls, and (iii) data from the cell towers to which the mobile telephones had connected, established that the user of the number in question had spoken to “Sipan”, M.A., the co‑defendant B.A. and other individuals who had the same last name as the applicant and resided in the same area as him.
14. In view of the above, the Court is unable to conclude that the applicant has laid the basis of a prima facie claim such as to cast doubt on the domestic courts’ conclusion that the mobile telephone number ending in 4808 had been used by him. Similarly, when seen against the background indicated above, the Court cannot accept that the trial court’s rejection of the public prosecutor’s request for a comparative voice analysis of the intercepted calls was in and of itself sufficient to conclude that the applicant was deprived of all the means necessary to subject this matter to meaningful scrutiny. Indeed, even though the applicant and his lawyer had access to the audiotapes of the intercepted telephone calls, there is no indication in the case file that they attempted to obtain copies thereof or asked the trial court to play those recordings during the trial with a view to shedding light on the question whether the calls in question were made by him or not (see Murtazaliyeva v. Russia [GC], no. 36658/05, §§ 93 and 95, 18 December 2018).
15. In view of the foregoing considerations, the Court concludes that 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 22 September 2022.
Dorothee von Arnim Egidijus Kūris
Deputy Registrar President