SECOND SECTION

DECISION

Application no. 15365/09 Åžahabettin BAÅžARAN against Turkey

The European Court of Human Rights (Second Section), sitting on 12 November 2019 as a Committee composed of:

Julia Laffranque , President , Ivana Jelić , Arnfinn Bårdsen , judges, and Hasan Bakırcı, Deputy Section Registrar ,

Having regard to the above application lodged on 16 February 2009,

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

The applicant, Mr Şahabettin Başaran , is a Turkish national who was born in 1971 and lives in Diyarbakır.

The Turkish Government (“the Government”) were represented by their Agent.

On 13 December 2004 the applicant was arrested and detained in connection with operations against Hizbullah , an illegal armed organisation.

On different dates public prosecutors at the Istanbul and Diyarbakır Assize Courts assigned under Article 250 of the Criminal Procedure Code filed bills of indictment with those courts, accusing the applicant and co ‑ accused Åž.K. and Ä°.Y. of membership of an illegal armed organisation under Article 168 of the then Criminal Code, and attempting to undermine the constitutional order of the State under Article 146 of the same Code.

Having regard to those indictments, the case files were joined to the case before the Fourth Chamber of the Diyarbakır Assize Court.

According to the information in the file, on an unspecified date another set of proceedings was initiated against M.V., Ş.K., R.K., and M.S.F. before the Sixth Chamber of the Diyarbakır Assize Court. The statements taken from those persons in that set of proceedings were included in the case before the Fourth Chamber of the Diyarbakır Assize Court.

On 28 March 2006 Ş.K. appeared before the trial court and gave evidence as a witness in the presence of the applicant and his lawyer. At the same hearing, the trial court read out the previous statements which the applicant had made to the police officers and the trial court. During the same hearing, the applicant ’ s lawyer stated that they had not accepted the evidence against the applicant.

At a hearing held on 20 March 2007, the statements made by M.V., Ş.K., R.K., and M.S.F in the course of the trial before the Sixth Chamber of the Diyarbakır Assize Court were read out. The applicant ’ s lawyer objected to the content of those statements. As it transpires from the minutes of this hearing, the applicant submitted a three-page-long document in which he asked for certain individuals to be heard before the trial court as witnesses. However, the material submitted by the parties does not include this document. Thus, the case-file before the Court contains no information as to which individuals the applicant asked to be heard or how their testimony, from the applicant ’ s point of view, was relevant to the subject matter of the accusation.

The domestic court rejected those requests as it considered that it would not be necessary to hear the persons whom the applicant requested to have examined before the trial court as they denied their former police statements at a later stage during the trial.

On the same day the Istanbul Assize Court found the applicant guilty and convicted him under Article 146 of the former Criminal Code of attempting to undermine the constitutional order of the State. It sentenced the applicant to life imprisonment. In convicting the applicant the trial court relied on, inter alia , the initial statements of Ş.K. and M.V. taken during the criminal proceedings against them before the Sixth Chamber of the Diyarbakır Assize Court.

On 23 June 2008 the applicant ’ s lawyer lodged a two-page appeal against that judgment, submitting that the conviction had been unfair.

On 16 October 2008 the Court of Cassation upheld the judgment of the first-instance court.

By a letter dated 15 April 2019 the applicant informed the Court that his application for the reopening of the proceedings had been granted by the trial court, which had also ordered his release.

COMPLAINT

The applicant complained under Article 6 §§ 1 and 3 (d) of the Convention that he had not been able to question the co-accused, namely Ş.K. and İ.Y. and certain witnesses, namely M.S.F, R.K., and M.V., whose statements had allegedly played an essential part in his conviction.

THE LAW

Relying on Article 6 §§ 1 and 3 (d) of the Convention, the applicant alleged that his right to a fair trial had been breached on account of the trial court ’ s failure to hear evidence in person from witnesses who had testified against him. The relevant parts of Article 6 of the Convention provide:

“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; ...”

As regards the admissibility of the applicant ’ s complaint, the Government argued that there was no information or document in the case file indicating that the applicant had duly requested that M.V., M.S.F. and Åž.K. be examined during the trial. Accordingly, they asked the Court to declare the application inadmissible as manifestly ill ‑ founded.

As regards the merits, the Government argued that the applicant had had the opportunity to adduce his arguments, which had taken into account by the domestic courts. The accused Ş.K. and the witness M.S.F had been heard in the presence of the applicant as they were both detained pending trial and he had had an opportunity to challenge their statements. Lastly, an arrest warrant was issued against the accused İ.Y., who had avoided the proceedings. In the Government ’ s view, when the trial was assessed as a whole, there was no breach of the right to a fair trial.

The applicant contested the Government ’ s arguments.

The general principles with regard to the right to obtain the attendance and examination of witnesses can be found in the Grand Chamber judgments in Al ‑ Khawaja and Tahery v. the United Kingdom ([GC], nos. 26766/05 and 22228/06, ECHR 2011) and Schatschaschwili v. Germany ([GC], no. 9154/10, § 100, ECHR 2015).

The Court observes at the outset that the trial court found the applicant guilty on the basis of the statements made to the police by Ş.K. and M.V., who were tried by the Sixth Chamber of the Diyarbakır Assize Court.

The Court notes that the applicant asked the trial court to examine the persons mentioned in his written submissions only during the last hearing on 20 March 2007. However, the material submitted by the parties do not include this document and the Court does not know either the names of the witnesses the applicant allegedly asked to be heard at the trial or his view as to their relevance to the subject matter of the accusation.

Furthermore, when the applicant contested the Government ’ s submissions concerning the admissibility of the complaint, he submitted a copy of his appeal dated 23 June 2008 and also copies of minutes of the hearings dated 6 February 2007 and 20 March 2007. However, none of those submissions included any request to question Ş.K. and M.V. or any other witnesses against him in person before the trial court, the complaint which the applicant now raises before the Court. As such, t he Court observes that the applicant failed to raise his complaints concerning the trial court ’ s failure to hear evidence from Ş.K. and M.V. in person before the national courts.

In view of the above, and having regard to the documents in its possession, the Court has been led to conclude that the applicant has failed to substantiate his complaint that he was unable to question Åž.K. and M.V. in person before the trial court.

It follows 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 5 December 2019 .

Hasan Ba kırcı Julia Laffranque Deputy Registrar President