SECOND SECTION

Application no. 28226/04 Adnan Levent ÇAMLAR against Turkey lodged on 4 August 2004

STATEMENT OF FACTS

The applicant, Mr Adnan Levent Çamlar , is a Turkish national, who was born in 1965 and lives in London. He is represented before the Court by Mr A. Cangı , a lawyer practising in Izmir.

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

A. Criminal proceedings against the applicant in the United Kingdom

On 29 April 1997 the applicant was arrested in London on suspicion of trafficking of illegal drugs.

On the same day he was placed in police custody, where he was informed that he would be charged with importation of a controlled drug, namely diamorphine .

In his statements before the British police, the applicant maintained that he had been importing clothing goods from Turkey and had not been aware of the trafficking of drugs by his partners.

On 15 September 1998, after having heard witness statements and evaluated all relevant evidence, the Crown Court acquitted the applicant of all charges and ordered his release.

B. Criminal proceedings against the applicant in Turkey

On 16 June 1997 the public prosecutor at the Izmir State Security Court filed an indictment with that court, accusing certain persons of trafficking of illegal drugs by establishing a criminal organisation pursuant to Article 403 of the then valid Criminal Code (Law no. 765). In that indictment, the public prosecutor indicated the involvement of the applicant in the alleged acts, without bringing any charges against him.

On 19 August 1997 the public prosecutor issued an indictment, accusing the applicant of the same offence as the others. The prosecutor stated that the applicant had actively participated in the transfer of the illegal drugs from Turkey to the United Kingdom and noted that he was in detention on remand in the United Kingdom.

In his records dated 13 June 1997, the public prosecutor stated that the British authorities had provided him with the tapes of the applicant ’ s police statements as well as other evidence on the alleged offence.

On an unspecified date in 1997, the Magistrates ’ Court ordered the applicant ’ s detention on remand in absentia .

At a hearing on 24 February 1998 the Izmir State Security Court joined the proceedings against the applicant with the proceedings against the other persons involved in the same offence.

On 5 November 1998 one of the co-accused, B.Ó¦., gave his statements before the court, maintaining that he had been hired by the applicant for the receipt and storage of certain goods which he had not known to be drugs.

On 3 December 1998 the lawyer of one of the co-accused submitted the applicant ’ s certificate of acquittal issued by the Crown Court to the national court.

On 20 September 1999 the applicant went back to Turkey; he was placed in detention on remand the following day.

At the subsequent hearing on 30 September 1999, the applicant submitted his statements before the court and denied his involvement in the trafficking of illegal drugs. He requested to have certain witnesses, including his counsel in the United Kingdom, heard. The Izmir State Security Court rejected that request, finding that the statements of the witnesses called by the applicant would not contribute to the case in view of the information already available concerning the proceedings in the United Kingdom. The court went on to decide that the applicant should be released pending trial.

During the numerous hearings which followed, the court deferred the examination of the case to the subsequent hearings, awaiting information as regards certain accused in the United Kingdom.

At the hearing on 18 February 2003, the public prosecutor submitted his written opinion, requesting that the accused be found guilty as charged, mainly on the basis of the investigation conducted in the United Kingdom and the evidence obtained during another set of proceedings concerning the same offence.

On 21 March 2003 the applicant submitted his written defence to the court and requested his acquittal. He argued that he could not be found guilty on the basis of evidence which according to the British court was insufficient to prove his involvement in the alleged acts.

On 27 March 2003, on the basis of the investigation conducted by the British authorities, the statements of B.Ӧ. and those made by a certain F.A., which were taken in another set of proceedings, the Izmir State Security Court found the applicant guilty as charged and sentenced him to twenty four years ’ imprisonment and a fine.

On 31 March 2003 the applicant appealed against that judgment.

On 4 March 2004 the Court of Cassation upheld the judgment of the Izmir State Security Court. The higher court indicated that the offence at issue concerned the exportation of illegal drugs and accordingly the case differed from that concluded in the United Kingdom.

On an unspecified date the applicant went to the United Kingdom.

Following the entry into force of the new Criminal Code (Law no. 5237), in June 2005, the applicant requested the re-evaluation of his case and the application of the more favourable clauses in the new Code.

On 16 December 2005, after having examined the case file, the Izmir Assize Court reduced the applicant ’ s sentence to twenty years ’ imprisonment and decreased the amount of the fine.

On 28 June 2006 the Court of Cassation quashed the judgment, stating that the first-instance court was to hold a hearing.

Following several hearings, which the applicant had not attended as he had not returned to Turkey, on 3 July 2008 the Izmir Assize Court sentenced the applicant to twenty years and ten months of imprisonment and a fine pursuant to Article 188 of the Criminal Code (Law no. 5237).

Following the applicant ’ s appeal, on 9 April 2009 the Court of Cassation held a hearing and heard the submissions of the applicant ’ s lawyer. Finally, the higher court upheld the judgment of the Izmir Assize Court with a minor procedural correction.

COMPLAINTS

The applicant complains under Article 6 § 1 of the Convention that the Izmir State Security Court lacked independence and impartiality.

He further maintains under Article 6 §§ 1 and 3 (d) of the Convention that the Izmir State Security Court sentenced him on the basis of statements obtained in his absence, which he could not challenge during the proceedings against him. He also submits that the court erred in its evaluation of evidence and in the determination of the sentence.

Finally, the applicant argues under Article 6 §§ 1 and 3 (d) of the Convention that despite his requests, the court did not hear any witnesses in his favour. In that respect, he maintains that although he requested in particular the examination of his counsel in the United Kingdom, the court rejected his request as it considered it had all the information concerning the case file before the Crown Court.

QUESTIONS TO THE PARTIES

1. Did the applicant receive a fair trial by an independent and impartial tribunal as required by Article 6 § 1 of the Convention (see, Ceylan v. Turkey ( dec. ), no. 68953/01, 30 August 2005)?

2. Was the applicant able to examine the witnesses against him and have examined those on his behalf as required by Article 6 § 3 (d) of the Convention? If not, has there been a breach of the applicant ’ s right to a fair trial provided by Article 6 §§ 1 and 3 (d) of the Convention due to his inability to examine or have examined the witnesses?