SECOND SECTION

DECISION

Application no. 22382/07 Adil Y ILDI R I M against Turkey

The European Court of Human Rights (Second Section), sitting on 22 January 2019 as a Committee composed of:

Paul Lemmens, President, Jon Fridrik Kjølbro, Ivana Jelić, judges, and Hasan Bakırcı, Deputy Section Registrar ,

Having regard to the above application lodged on 9 May 2007,

Having regard to the formal declarations accepting a friendly settlement of the case,

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 AND PROCEDURE

1. The applicant, Mr Adil Yıldırım, is a Turkish national who was born in 1972 and was detained in Mersin Prison at the time of lodging his application. He was represented before the Court by Mr Ü . Kılınç, a lawyer practising in Strasbourg.

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

3. On 12 June 2017 the President of the Section to which the case had been allocated decided, under Rule 54 § 2 (a) and (c) of the Rules of Court, t o request that the parties submit a copy of the applicant ’ s appeal submissions.

A. The circumstances of the case

4. The applicant was born in 1972 and is detained in Mersin.

5. On 29 September 2003 the applicant was taken into police custody on suspicion of being a member of the PKK, an armed illegal organisation.

6. In his statements to the police, the public prosecutor and the investigating judge, the applicant denied the allegations against him. Subsequently, on 1 October 2003 the investigating judge ordered his detention on remand.

7. On 3 November 2003 the public prosecutor at the Ä°zmir State Security Court filed a bill of indictment with that court against the applicant and a co ‑ accused, namely Mehmet Ali Türk (who was the applicant in the case of Türk v. Turkey , no. 22744/07, 5 September 2017), accusing them of carrying out activities for the purposes of bringing about the secession of part of the national territory, under Article 125 of the Criminal Code.

The prosecutor alleged that in 1992 the applicant, who was a member of the PKK, had shot K.G. upon the orders of the illegal organisation. The prosecutor submitted that K.G. ’ s brother, who had been killed during a clash with the security forces, had been a PKK member, and that following his brother ’ s death, K.G. had had a relationship with his widow. The applicant, together with S.K. and Mehmet Ali Türk, had accordingly been ordered to kill K.G to punish him for that relationship. K.G. had been wounded as a result of the shooting.

8. On 8 January 2004, at the first hearing, the applicant gave evidence in the presence of his lawyer before the İzmir State Security Court. The applicant denied having been a member of the illegal organisation and having taken part in the shooting of K.G. in 1992. He further submitted that he did not know the victim, K.G., or the witnesses S.K. or M.N.A. (they had previously been tried in another set of criminal proceedings in relation to K.G. ’ s shooting). When asked about the documents in the case file, including the statements of K.G. and S.K. and the verbatim records of the reconstruction of the events ( ifadeli yer gösterme tutanağı) which contained M.N.A. ’ s statements, the applicant did not accept them. The applicant ’ s lawyer also stated, inter alia , that M.N.A. ’ s and S.K. ’ s statements did not reflect the truth, and that they had retracted their incriminatory statements in another set of proceedings.

9. On 4 May 2004, at the third hearing, the trial court deemed it necessary to hear from people who had been tried for the same incident in a previous case, no. 1996/9, namely M.N.A., S.K. and B.Ç., with a view to verifying the defence submissions of the applicant and his co-accused, Mehmet Ali Türk. In this connection, the trial court ordered that the necessary steps be taken to find out in which prisons M.N.A., S.K. and B.Ç. had been detained, and ordered that enquiries be made as to their addresses in the event that they had been released from prison. The trial court further ordered that a confrontation take place once the witnesses had been located. It ordered that photographs be taken of the applicant and the co-accused, from the side and from the front, and sent with the reports concerning the case, in the event that M.N.A., S.K. and B.Ç. were located outside its jurisdiction. If they resided in the centre of İzmir, they should be heard in person as witnesses. The trial court also ordered that the address of K.G., the victim, should be produced, with a view to bringing him before the court to take evidence from him in person.

10. At a hearing held on 29 June 2004 the trial court heard witness evidence from S.K. S.K. said that he did not know the applicant or Mehmet Ali Türk, nor had he ever seen them before. He did not have direct knowledge of K.G. ’ s shooting, and had given his previous statement as a result of information he had obtained from M.N.A. and B.Ç. The trial court reiterated its orders concerning M.N.A., B.Ç. and K.G.

11. At a hearing held on 26 August 2004 the applicant ’ s lawyer submitted a medical report issued by Elazığ Mental Hospital, dated 3 September 2002, which noted that M.N.A. suffered from depression. The lawyer accordingly asked the trial court not to call M.N.A. as a witness. The trial court did not respond to that request.

According to the transcript of the hearing, the applicant ’ s lawyer submitted four other reports issued in respect of M.N.A. ’ s state of health. However, the applicant did not submit those reports in his application to the Court.

12. Under Law no. 5190 of 16 June 2004, published in the Official Gazette on 30 June 2004, State Security Courts were abolished. The case against the applicant was therefore transferred to the Ä°zmir Assize Court.

13. According to the information in the file, another set of proceedings had been initiated against B.Ç., S.K. and M.N.A. in connection with K.G. ’ s wounding (decision no. 1996/9 E., 1997/142 K, delivered by the İzmir State Security Court). The statements taken from the accused persons in that set of proceedings were also included in the case file.

14. On 29 June 2004 S.K. appeared before the Ä°zmir State Security Court and denied the statements that he had given in 1995 in connection with the criminal proceedings which had been instituted against him. He maintained that he had been subjected to ill-treatment while in police custody and had signed his statement under duress.

15. On 19 August 2004 M.N.A. was questioned by the Siirt Assize Court, pursuant to a letter of request from the trial court. According to the transcript of the hearing at the Siirt Assize Court, M.N.A. was serving a sentence in Siirt E-type Prison at that time. He explained that in 1992 he, the applicant and Mehmet Ali Türk had received instructions from the PKK and S.K. to shoot K.G. Accordingly, while he had secured the area and thus been involved in the shooting as a lookout, the applicant and Mehmet Ali Türk had gone to shoot K.G. He had heard gunshots but had not seen K.G. being shot. He further identified the applicant and Mehmet Ali Türk from the photographs. The Siirt Assize Court then asked M.N.A. to clarify the inconsistencies between the statements he had given to the police and the public prosecutor in 1995 and those he had just given to the court. M.N.A. insisted that he was now giving them the correct version of the events. The court reminded him that in his statement of 29 November 1995 before the public prosecutor he had said that he did not know the accused, and asked him to clarify that point. M.N.A then explained that it was because he had been questioned as an accused on 29 November 1995. He repeated that he was now giving them the correct version of the events.

16. On 17 December 2004, in the seventh hearing, M.N.A. ’ s statement was read out. The applicant ’ s lawyer objected to this statement, referring to the inconsistencies in the statements which M.N.A. had given in 1995 and thereafter. He further referred to the medical report in respect of M.N.A., and requested that his statement be considered unreliable. The trial court did not provide a response to that request. It reiterated its orders concerning B.Ç. and K.G.

17. On 17 February 2005 the eighth hearing was held, and the trial court again reiterated its orders concerning B.Ç. and K.G.

18. At the ninth hearing on 28 April 2005 the trial court once again reiterated its orders concerning B.Ç. and K.G.

19. At the tenth hearing on 12 July 2005 the victim, K.G., appeared before the trial court and gave evidence as a witness. K.G. submitted that he had not seen the applicant or Mehmet Ali Türk at the crime scene and that they had not been involved in his shooting. He gave a detailed description of the people who had shot him.

The trial court observed that, in his initial statements taken immediately after the incident, K.G. had stated that he had not been able to see the faces of the people who had attacked him. Subsequently, in the other set of proceedings, he had identified Åž.E. and B.A. from their photos as the persons who had shot him.

20. At a hearing held on 11 August 2005 the trial court asked the public prosecutor and the accused whether they were pursuing the request to have B.Ç. examined before the court. Both parties agreed to proceed without hearing B.Ç. in person. B.Ç. ’ s statements given during the preliminary investigation stage and in the course of another set of proceedings (decision no. 1996/9 E., 1997/142 K, delivered by the İzmir State Security Court) were read out during the trial, and when asked about those statements, the applicant submitted that he had not accepted the evidence against him.

21. On 4 October 2005 the İzmir Assize Court found the applicant guilty as charged and convicted him under Article 125 of the former Criminal Code of carrying out activities with the aim of bringing about the secession of part of the national territory. It sentenced him to life imprisonment. In convicting the applicant, the court relied on, inter alia , the statements of M.N.A., as well as other relevant evidence collected during the criminal proceedings against M.N.A., B.Ç. and S.K. (decision no. 1996/9 E., 1997/142 K, delivered by the İ zmir State Security Court).

22. On the same day the applicant ’ s lawyer lodged an appeal against that judgment. On 6 Octo ber 2005 the applicant also fil ed a one ‑ page ‑ long appeal submission against the trial court ’ s judgment, submitting that the conviction had been unfair.

23. On 7 February 2006 the applicant ’ s lawyer lodged detailed appeal submissions in which he challenged, inter alia , the veracity of the evidence given by M.N.A., in the light of the medical reports issued in respect of him. On 8 February 2006 the applicant ’ s other lawyer lodged appeal submissions in which he submitted, inter alia , that the trial court had failed to make out the material elements of the offence of which the applicant had been convicted.

24. On 14 February 2006 the Court of Cassation quashed the judgment of the first-instance court in order to determine whether the new Criminal Code, which had entered into force on 1 June 2005 (no. 5237), provided more favourable provisions for the applicant. The case was thus once again examined by the Ä°zmir Assize Court, in view of the recent legislative changes.

25. At a hearing held on 13 June 2006 the applicant ’ s lawyer requested an additional investigation ( tevsi-i tahkikat ) from the trial court, in order to bring M.N.A before the court in order to hear him in person. However, the domestic court rejected that request, on account of the fact that the same request had already been examined and rejected earlier.

26. On the same day, relying on the case file as a whole, the İ zmir Assize Court once again found the applicant guilty as charged under Article 125 of the Criminal Code, and sentenced him to life imprisonment. It listed, inter alia , the following evidence in its judgment: the statements of M.N.A. and S.K. in the different sets of proceedings; M.N.A. ’ s statements before the Siirt Assize Court; B.Ç. ’ s statements; Mehmet Ali T ürk ’ s statements to the police, the public prosecutor, and the investigating judge; and verbatim records of the reconstruction of events which also contained M.N.A. ’ s statements.

27. The case file contains no information as to the content of the appeals lodged by the applicant and his lawyer against the trial court ’ s judgment dated 13 June 2006. When asked to provide the appeal submissions which he had put forward during the proceedings, the applicant ’ s lawyer submitted to the Court four sets of submissions da ted 4 October 2005, 6 October 2005, 8 February 2006 and 4 January 2007.

28. On 19 December 2006 the Court of Cassation held a hearing in the presence of the applicant ’ s lawyer and decided to uphold the judgment of the trial court. The Court of Cassation pronounced its judgment on 27 December 2006.

29. The applicant sent a letter dated 8 January 2007 to the Court of Cassation, in which he complained that his trial had been entirely unfair.

COMPLAINT

The applicant complained under Article 6 §§ 1 and 3 (d) of the Convention that he had not been able to question M.N.A., whose statements had played an essential part in his conviction. In this connection, he alleged that in convicting him, the Izmir Assize Court had relied on a witness statement which had been taken on commission, without taking into account that the witness had suffered from a mental disorder.

THE LAW

A. The applicant ’ s alleged inability to question M.N.A., whose statements played an essential part in his conviction

30. The applicant alleged that his right to a fair trial had been breached on account of the trial court ’ s failure to hear evidence from M.N.A. in person.

31. 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; ...”

32. As regards the admissibility of the applicant ’ s complaints, the Government argued that the domestic courts had relied not only on the statement of M.N.A., but also on other evidence, including the statements of the witnesses S.K., B. Ç. and the statements of the co-accused Mehmet Ali Türk . In this respect, they asked the Court to declare the application inadmissible as manifestly ill-founded.

33. As regards the merits, the Government argued that M.N.A. ’ s statement had been read out to the applicant during the hearing on 17 December 2004, and he had also had an opportunity to challenge it. Lastly, the applicant had not put forward his request that M.N.A. be heard in person before either the trial court or the Court of Cassation. In the Government ’ s view, when an applicant decided not to make use of the right to have witnesses questioned, not hearing a witness in the presence of the accused did not constitute a breach of that right.

34. The applicant did not submit any observations.

35. 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).

36. The Court does not consider it necessary to examine the Government ’ s objection as to the inadmissibility of the application in view of the weight of the remaining evidence indicating the applicant ’ s guilt, as in its view, the complaint is in any event inadmissible for the following reasons.

37. The Court takes note of the Government ’ s submission that the applicant did not ask either the trial court or the Court of Cassation to hear evidence from M.N.A. in person. That said, however, as the Government made that argument in the “merits” part of their observations and did not specifically ask the Court to declare the application inadmissible due to non ‑ exhaustion of domestic remedies, the Court considers that the present case cannot be declared inadmissible on that basis.

38. On the other hand, the Court observes that the applicant only asked the trial court to question M.N.A. in person during the last hearing on 13 June 2006. Prior to that hearing, the applicant had only challenged the content of the evidence given by M.N.A., alleging that he had been suffering from depression.

39. Furthermore, when asked to provide the Court with his appeal submissions, the applicant submitted four sets of submissions dated 4 October 2005, 6 Octo ber 2005, 8 February 2006 and 4 January 2007. However, none of those submissions were appeals lodged against the trial court ’ s judgment dated 13 June 2006. I n any event, none of those submissions included any request to question M.N.A. 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 M.N.A in person before the Court of Cassation.

40. In view of the above, and having regard to the documents in its possession, the Court considers that the applicant has failed to substantiate his complaint that he was unable to question M.N.A. in person before the trial court.

41. 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.

B. The trial court ’ s failure to consider M.N.A. ’ s mental state when relying on his statements in convicting the applicant

42. The applicant further alleged that the trial court had failed to consider that M.N.A. had suffered from a mental disorder, despite the fact that it had relied on his statements, amongst other things, when convicting him.

43. The Government reiterated that M.N.A. had first given statements to the police on 21 November 1995, long before the medical report had been issued in respect of him on 3 December 2002. Moreover, M.N.A. ’ s second statement had been taken by the Siirt Assize Court, pursuant to a letter of request from the trial court, on 19 August 2004, two years after the date of the impugned report. Therefore, there had been no grounds to question the accuracy of M.N.A. ’ s statements, and consequently the trial court had not carried out any assessment of that matter.

44. The applicant did not submit any observations.

45. The Court has previously accepted on several occasions that a witness ’ s state of health or the fact that he or she has been undergoing inpatient treatment might be a valid reason for his or her absence from a trial and for reading out his or her pre-trial statements as evidence (see, for example, Lawless v. the United Kingdom (dec.), no. 44324/11, 16 October 2012 , and Bobeş v. Romania , no. 29752/05, § 39, 9 July 2013 ). However, the Court further held in Zadumov v. Russia ( no. 2257/12 , § 54, 12 December 2017) that the acceptance of such a reason by the domestic courts should depend not on an individual ’ s medical history, but on the individual ’ s condition at the time of the trial.

46. In the instant case, the Court notes that at the hearing held on 26 August 2004 the applicant ’ s lawyer submitted a medical report issued by Elazığ Mental Hospital on 3 September 2002 indicating that M.N.A. had been suffering from depression. However, M.N.A. gave statements before the Siirt Assize Court on 19 August 2004, approximately two years after the report in question. Having regard to the nature of M.N.A. ’ s suffering and the considerably long period of time which elapsed between the date of the medical report and the date on which M.N.A. gave evidence before the Siirt Assize Court, the Court considers that the link between that report and the reliability of the evidence given by M.N.A. is tenuous (compare Zadumov , cited above, § 53). Moreover, when convicting the applicant, the trial court also relied on, inter alia , the previous statements given by M.N.A. in 1995 which also included incriminatory remarks in respect of the applicant, and the statements made by the witnesses S.K. and B. Ç.

47. In view of the above, the Court considers that the applicant ’ s complaint under this heading is in essence related to the evaluation and assessment of evidence, which primarily falls within the domain of the domestic courts. Normally, issues such as the weight attached by the national courts to given items of evidence or to findings or assessments in issue before them for consideration are not for the Court to review. The Court should not act as a fourth-instance body, and will therefore not question under Article 6 § 1 the national courts ’ assessment, unless their findings can be regarded as arbitrary or manifestly unreasonable (see Moreira Ferreira v. Portugal (no. 2) [GC] , no. 19867/12, § 83 (b), 11 July 2017) .

48. Bearing in mind its limited role within the above-mentioned sphere, and having regard to the particular circumstances of the case and the absence of any other arguable claim against the reliability of the evidence given by M.N.A., the Court does not consider that the decisions of the domestic courts fell short of the requirements of a fair trial guaranteed under Article 6 § 1 of the Convention.

49. It follows that the applicant ’ s complaint 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 14 February 2019 .

Hasan Bakırcı Paul Lemmens Deputy Registrar President