DECISION

AS TO THE ADMISSIBILITY OF

Application No. 34536/97

by Muharrem BARIM

against Turkey

The European Court of Human Rights ( Second Section) sitting on 12 January 1999 as a Chamber composed of

Mr C. Rozakis , President ,

Mr M. Fischbach ,

Mr G. Bonello ,

Mr R. Türmen ,

Mrs V. Strážnická ,

Mr P. Lorenzen ,

Mr A.B. Baka , Judges

with Mr E. Fribergh, S ection Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 4 June 1996 by Muharrem BARIM  against Turkey and registered on 16 January 1997 under file No. 34536/97;

Having regard to the report provided for in Rule 49 of the Rules of Court;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, who was born in 1965, is a Turkish citizen, resident in Elazığ . He is currently detained at Elbistan Prison. Before the Court, he is represented by his brother, Erdem Barım .

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

On 13 February 1994 four persons from the same family, B.F., E.F., M.F. and Y.K. were found dead near their house in Elazığ . The ensuing police investigation led to the arrest of Zihni Umay (Z.U.) on 16 February 1994. Whilst he was in police detention Z.U. confessed that he had killed B.F., E.F., M.F. and  Y.K.. He stated that three other persons, including the applicant, had also been involved in the killing. On 16 February 1994 the applicant was detained on the ground of these allegations. In his statement, allegedly taken under duress in the police station, the applicant confessed that he had been involved in the murders.

On 20 February 1994 the applicant was brought before the public prosecutor and the Magistrate’s Court in Criminal Matters. In his defence submissions he retracted from his statement taken in the police station and denied all the charges against him. On the same day he was placed in detention on remand together with the other three co-accused.

On 4 March 1994 the Elazığ Public Prosecutor instituted criminal proceedings in the Elazığ Assize Court against the applicant and the other three co-accused, Z.U., V.Ç. and Me.B .

The Elazığ Assize Court heard oral evidence from the witnesses called both by the prosecution and defence, examined the autopsy reports and conducted a survey of the scene of the crime. The Assize court further carried out an investigation into the applicant’s allegations of ill-treatment in police detention. It examined the medical reports and heard oral evidence from the police officers, who were allegedly responsible.

On 27 September 1994 the Elazığ Assize Court convicted the applicant of homicide and sentenced him to lifetime imprisonment. It held that the four co-accused had acted with premeditation in order to steal Y.K.’s jewellery and killed B.F., E.F., M.F. and Y.K. to destroy the evidence and the traces. The court also found that Z.U. had killed Y.K., V.Ç. had killed M.F., Me.B . had killed E.F. and the applicant had killed B.F.

The Elazığ Assize Court further examined the credibility of a letter by Z.U., dated 1 July 1994. In this letter, he stated that he had lied in his earlier statements. He admitted that he had killed the four persons alone and that the other accused persons were innocent. The Elazığ Assize Court found that Z.U.’s statement was not trustworthy, as this new explanation was not realistic, given the circumstances of the case. Furthermore, the court held that the allegations of ill-treatment in police detention were unsubstantiated, as there were no medical reports or any other evidence in support of these allegations.

The applicant appealed and on 8 February 1995 the Court of Cassation quashed the judgment of 27 September 1994 without examining the merits of the case for violation of procedural rules. It stated that the record of the trial, dated 14 July 1994, was signed by a recording clerk of the court other than the one mentioned in the record.

The Elazığ Assize Court, to which the case was referred, re-examined the case and on 1 May 1995 convicted the applicant of homicide and sentenced him to lifetime imprisonment.             

The applicant appealed against this judgment. On 25 October 1995 the Court of Cassation , upholding the cogency of the Elazığ Assize Court’s assessment of evidence and reasoning dismissed the appeal by 3 votes against 2. 

On 16 November 1995 the Public Prosecutor attached to the Court of Cassation challenged the decision of 25 October 1995 on the ground that there was not enough evidence to convict the applicant of homicide.

On 5 December 1995 the Joint Criminal Chambers of the Court of Cassation , upholding the cogency of the Elazığ Assize Court’s assessment of evidence and its reasoning in rejecting the applicant’s defence, dismissed the Public Prosecutor’s request to acquit the applicant by 20 votes against 5. In the dissenting opinions it was stated that the applicant was probably involved in the killing, but that there was not the decisive element of proof which would definitively establish the liability of the applicant and that it could not be entirely excluded that Z.U.’s account of facts was true.

COMPLAINT

The applicant complains that his right to a fair trial was breached as regards the national courts’ evaluation of facts and interpretation of domestic law. He submits that he was convicted of murder on the sole evidence of confessions extracted from him and the other accused under duress.

THE LAW

The applicant complains under Article 6 of the Convention that his right to a fair trial was breached as regards the national courts’ evaluation of facts and interpretation of domestic law. He submits that he was convicted of murder on the sole evidence of confessions extracted from him and the other accused under duress.

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 (Eur. Court HR., Schenk v. Switzerland judgment of 12 July 1988, Series A, no.140, p.29, para.45).

As regards the complaints about the taking and assessment of evidence, the Court recalls that as a general rule, it is for the national courts to assess the evidence before them as well as the relevance of the evidence which the defendants seek to adduce. The Court’s task is to ascertain whether the proceedings, considered as a whole, including the way, in which the evidence was taken, were fair. In that context its task is to establish whether the evidence produced for or against the accused was presented in such a way as to ensure a fair trial (Eur. Court HR., Asch v. Austria judgment of 26 April 1991, Series A, no. 203, p. 10, para. 26).

In the present case, the Court observes that the decisions of the Elazığ Assize Court and the Court of Cassation were given on the basis of domestic law and the particular circumstances of the case. The Elazığ Assize Court took oral evidence from the witnesses called by the prosecution and the defence, examined the autopsy reports and conducted a survey in the crime area.

The court held that the four co-accused acted with premeditation in order to steal Y.K.’s jewellery and killed B.F., E.F., M.F. and Y.K. to destroy the evidence and traces to enable them to run away from punishment. It also found that Z.U.’s confession was not trustworthy as the possibility of only one perpetrator was not realistic, given the circumstances of the case. The court also investigated the applicant’s allegations of ill-treatment in police detention. After examining the medical reports and taking oral evidence from the police officers who were allegedly responsible for these allegations the Elazığ Assize Court found that these complaints were unsubstantiated.

The Court observes that the applicant’s case was examined several times by three levels of jurisdiction and the applicant was assisted by a lawyer during these proceedings. He was able to present his case adequately and the courts examined the defence arguments and explained their reasons, in rejecting the applicant’s requests.

The Court finds no element, which would allow it to conclude that the national courts acted in an arbitrary or unreasonable manner in establishing the facts or interpreting the applicable provisions of the domestic law. Therefore, there is no appearance of a violation of the applicant’s rights under Article 6 § 1 of the Convention.

In so far as the applicant also complains under Article 3 of the Convention about ill-treatment during his detention in the police station the Court observes that this complaint was examined in detail by the Elazığ Assize Court and that the allegation of ill-treatment was found unsubstantiated.

The applicant has not submitted any evidence, which would call into question this finding. There is therefore no appearance of a violation of the applicant’s rights under Article 3 of the Convention.

The Court concludes that the applicant’s complaints are manifestly ill-founded within the meaning of Article 35 § 4 of the Convention.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Erik Fribergh Christos Rozakis

  Registrar President