SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 39444/98 by YaÅŸar AKAN against Turkey

The European Court of Human Rights ( Second Section ), sitting on 30 March 2000 as a Chamber composed of

Mr C.L. Rozakis, President , Mr B. Conforti, Mr R. Türmen, Mr M. Tsatsa-Nikolovska, Mr A.B. Baka, Mr E. Levits,

Mr A. Kovler, judges , and Mr E. Fribergh , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 12 September 1997 and registered on 21 January 2000,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having deliberated, decides as follows:

THE FACTS

The applicant is a Turkish national, born in 1975 and currently detained in KahramanmaraÅŸ Prison. He is represented before the Court by Mr Ahmet OdabaÅŸ , a lawyer practising in Ä°zmir .

The facts of the case, as submitted by the applicant, may be summarised as follows.

On 8 September 1996 a naked female body was found dead on the seashore in Mersin , a city on the Mediterranean coast. The same day an autopsy was conducted on the body from which hair and blood samples were taken. On 12 September 1996 the body was identified as A.Ö., the wife of a retired colonel. The police was informed that she had been staying at the military officers’ guesthouse in Mersin . The ensuing investigation led to the arrest of the applicant and his two friends (C. and Z.), who were carrying out their military service as receptionists at the officers’ guesthouse.

In his police statement, dated 13 September 1996, the applicant confessed that he had been involved in the killing of A.Ö., and gave a detailed account of the events. He stated that together with his friend C., they had raped the victim, who had been staying alone in the guesthouse. He further stated that they had killed her, when she threatened to file a complaint against them.

On 14 September 1996 the police conducted a survey on the scene of the crime together with the applicant and the other accused persons, and the applicant showed where they had hidden the victim’s personal belongings. A knife was found in the basement, on which there was a thread of hair. The applicant also indicated a piece of cloth stuck on the barbed wire surrounding the guesthouse, which had been torn from the victim’s dress as they carried her to the shore. The hair on the knife was later found to be identical to that of the victim. This survey was recorded on videotape.

On 15 September 1996 the applicant repeated before the public prosecutor the statement he had given to the police. The attorney of the other co-accused, C., was present during the interrogation by the public prosecutor. The same day, the applicant was placed in detention on remand.

On 18 September 1996 after the identification of the victim’s body, the Mersin Public Prosecutor destroyed the blood and hair samples taken from her body. He further declared lack of jurisdiction and transferred the case file to the Military Court Public Prosecutor, as the applicant was a soldier in the Turkish Army.

On 1 October 1996 the Adana Military Court Public Prosecutor initiated criminal proceedings in the Adana Military Court against the applicant and the other two co-accused and charged them with rape and murder. The prosecution requested that the applicant be sentenced to death pursuant to Sections 416, 417, 495 and 497 of the Turkish Criminal Code.

Before the court, the applicant gave a different account of the events and blamed the other co-accused, C., for the alleged offences. According to the applicant’s defence, on the night of the incident, the applicant’s friend C. told him that he wanted to have sexual intercourse with the victim, who had been staying alone in the guesthouse for a couple of days. Together they entered the victim’s room from the balcony window, where C. attempted to rape her. Frightened of being caught by the police, C. told the applicant that they should kill the victim. According to the applicant, at that point, the victim lost consciousness. The applicant and C. carried the victim from her room to the shore, where she regained consciousness and started to struggle with the attackers. C. stabbed her in the back and the applicant also stabbed her. According to the applicant’s statement, when they returned to the guesthouse, C. collected the victim’s personal belongings, including her jewellery, from her room. The applicant further confessed before the court that he had taken a bracelet and a necklace belonging to the victim.

Moreover, the applicant denied his statement taken by the police and alleged that he had been subjected to ill-treatment during police custody. He further maintained that during his interrogation by the public prosecutor, he had been told to repeat his police statement.

The court further took oral evidence from the other two defendants, and they also confessed being involved in the alleged offences. In his statement, Z. maintained that he had been working at the reception at the time of the incident. He stated that, a day before the incident, he had heard the applicant say that he wanted to rape A.Ö. In his statement Z. further explained that he had not seen the other two defendants entering the victim’s room, but had seen them carrying the victim from the guesthouse to the seashore. He confessed that he had helped them carry the victim out of the guesthouse, and that the other two had then carried her to the shore. Z. stated to the court that when they came back after forty minutes later, their clothes were wet and the applicant was holding a screwdriver and a knife. He further stated that, as he was scared, he did not talk about this incident with anyone.

The applicant requested the court to take oral evidence from the victim’s husband. On 11 November 1996 the court refused the applicant’s request on the ground that the victim’s husband was not an eye witness to the crime in question and that his testimony would not in any way have an effect on the elucidation of the case.

On 25 November 1996 a survey of the crime area was conducted by order of the military court.

On 5 December 1996 the Adana Military Court, in view of the defendants’ confessions, the autopsy report, the survey of the crime scene, the blood sample tests and the incident reports, established the facts as follows. The applicant and his friend C., who had planned to rape the victim, entered the victim’s room from an open balcony window, leaving Z. in the reception to watch out. When they entered the room, they found the victim asleep and put a pillow over her head to prevent her from screaming, and then they raped her. When the victim started shouting, the two friends decided to kill her to prevent her from filing a complaint. They first tried to strangle A.Ö with a bathrobe belt, at which point she lost consciousness. Then they took her to the seaside, trying to drown her in the sea. However, the victim gained consciousness and tried to run away. Consequently, they started punching and hit her on the face with a stone. The applicant also stabbed the victim in her back with a screwdriver, whereas C. stabbed her with a knife in the stomach. Then C. tried to kill the victim by cutting her aorta. When A.Ö died, C. slashed the victim’s face in order to prevent the identification of the body. Then, leaving the body on the shore, they returned to the guesthouse. They packed the victim’s personal belongings, took her jewellery and hid them in the basement of the building. Accordingly, the court found it established that the applicant had acted with premeditation in order to rape A . Ö and had then killed her to avoid being caught by the police.

The Adana Military Court also held that the applicant’s allegations of ill-treatment in police detention were unsubstantiated, as there was no evidence in support of these allegations. The court further stated that the applicant had repeated his confession before the public prosecutor in the presence of a lawyer and had not complained about ill-treatment.

Consequently, the Adana Military Court convicted the applicant as charged and sentenced him to death.

The applicant appealed and the Military Court of Cassation held a hearing and examined the case once again.  On 20 May 1997 the Military Court of Cassation dismissed the applicant’s appeal, finding the first-instance court’s establishment of the facts and evaluation of evidence in line with the domestic and general principles of law.

COMPLAINTS

The applicant alleges that he did not receive a fair trial in that he was convicted on the basis of his confessions taken under duress while he was held in police custody. He further maintains that he was not presumed innocent until proved guilty, and that the national courts refused to take oral evidence from his witness. The applicant also submits that his defence submissions were not taken into consideration by the national courts. In this respect, he particularly challenges the lawfulness of the public prosecutor’s order to destroy hair and blood samples taken from the victim’s body before the courts reached a final decision on the case. In all, the applicant complains of the national courts’ evaluation of facts and interpretation of domestic law. In this respect, the applicant alleges Article 6 of the convention.

THE LAW

The applicant alleges that he did not have a fair hearing before the national courts. In this respect, he invokes Article 6 of the Convention, which insofar as relevant, reads:

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

2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

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

...

(d) to examine or have examined witnesses against him ... .”

The Court recalls that, in accordance with Article 19 of the Convention, its sole task is to ensure the observance of the obligations undertaken by the High Contracting Parties in the Convention. In particular, it is not competent to deal with an application alleging that errors of law or fact have been committed by domestic courts, except where it considers that such errors might have involved a possible violation of any of the rights and freedoms set out in the Convention. The admissibility of evidence and related questions are primarily matters for regulation by national law and it is in principle for national courts to assess the evidence before them. The Court’s task is not to examine whether the applicant was guilty or innocent of the offences of which he was convicted, but to ascertain whether the proceedings as a whole, including the way which the evidence was taken, were fair. ( Schenk v. Switzerland judgment of 12 July 1988, Series A no. 140, p. 29, § 46; and the Garzia Ruiz v. Spain judgment of 21 January 1999, § 28).

In the present case, the Court observes that the decision of the Adana Military Court and the Military Court of Cassation were given on the basis of domestic law and the particular circumstances of the case. The Court notes that the conviction of the applicant is not solely based on his confessions made in police custody, but also on his statements before the court following consultation with his lawyer. His confessions were also confirmed by other circumstantial factors. Therefore, the Court finds no indication that by relying on the confessions of the defendants before the police and the court, the national courts acted arbitrarily or otherwise exceeded their margin of appreciation in this respect. Moreover, the applicant was represented both at his trial and on appeal by his lawyer and had the opportunity of challenging the allegations of the prosecution. The fact that his attempts were unsuccessful makes no difference.

As regards the complaint concerning the court’s refusal to hear a witness called by the defence, the Court refers to what is said above and recalls that Article 6 does not lay down rules on the admissibility of evidence as such, which is therefore primarily a matter of regulation under national law (see the Schenk judgment cited above). The Court finds no indication that the national court’s refusal to hear the victim’s husband was in any way arbitrary or otherwise exceeded its margin of appreciation. The military court clearly stated in its decision that the testimony of the applicant’s husband would not have an effect on the clarification of the case, as he was not an eye witness to the events.

As regards the applicant’s complaint concerning the breach of the presumption of innocence principle and the lawfulness of the public prosecutor’s order to destroy the hair and blood samples taken from the body of the victim, the Court notes that the public prosecutor destroyed this evidence after clarification of the facts. In this respect, the court finds no indication that the military court started from the presumption that the applicant had committed the offences with which he had been charged. Thus, there is no appearance of a violation of Article 6 § 2.

The Court further observes that the first instance court had also examined the allegations of ill-treatment under police custody, but found them unsubstantiated since the applicant repeated his confession before the prosecutor and never denied his involvement in the alleged offences at any stage of the proceedings. It also found that the allegations of ill-treatment were not trustworthy given that the accused maintained his statement before the public prosecutor in the presence of an attorney. The applicant was further assisted by a lawyer during the criminal proceedings and confessed before the court that he had been involved in the killing of the victim.  Moreover, the applicant does not give a description of the treatment he was subjected to under custody, nor does he submit medical reports in support of his allegations.

In the light of the foregoing, the Court observes that the decisions of the national courts were given on the basis of domestic law and particular circumstances of the case. The Adana Military Court took oral evidence from the witnesses called by both the prosecution and the defence, examined the autopsy report and conducted a survey in the crime area. Finally the Court decided that the co-accused had acted with premeditation in order to rape A.Ö and killed her to prevent her from filing a complaint with the authorities.

For the above reasons the Court finds that the applicant’s complaints disclose no appearance of a violation of Article 6 § 1 of the Convention. It follows therefore that the application is inadmissible as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE .

Erik Fribergh C.L. Rozakis Registrar President