SECOND SECTION

DECISION

Applications nos. 40198/11 and 47696/11 Remzi KARAKOÇ against Türkiye and Yusuf KÜÇÜKTEPE against Türkiye

The European Court of Human Rights (Second Section), sitting on 23 May 2023 as a Committee composed of:

Pauliine Koskelo , President , Lorraine Schembri Orland, Davor Derenčinović , judges , and Dorothee von Arnim, Deputy Section Registrar,

Having regard to:

the applications against the Republic of Türkiye lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by the applicants listed in the appended table (“the applicants”), on the various dates indicated therein;

the decision to give notice of the complaints under Article 6 §§ 1 and 3 (d) of the Convention concerning the applicants’ alleged inability to directly examine certain witnesses to the Turkish Government (“the Government”) represented by their Agent, Mr Hacı Ali Açıkgül, Head of the Department of Human Rights of the Ministry of Justice of the Republic of Türkiye, and to declare inadmissible the remainder of the applications;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The application concerns the alleged unfairness of criminal proceedings against the applicants on account of their inability to directly examine certain witnesses residing in Germany at their trial, which took place in Türkiye.

2. On 18 December 2009 the Antalya Assize Court found the applicants guilty of the premeditated murder of a certain P.T. (also referred to hereinafter as “the victim”), which had taken place in Germany on 17 May 2004, and sentenced both of them to life imprisonment. The trial court found that the second applicant had driven the first applicant to the crime scene after they had both monitored the victim’s movements via a global positioning system (“GPS”) device built into P.T.’s car. The first applicant had then shot the victim using a pistol and the two applicants had driven away in their car. Subsequently, the pistol was found and seized near the crime scene. It was undisputed that a couple of hours after the murder the second applicant had taken the car used in the murder to his sister’s house and that both his sister and a neighbour of hers had cleaned it with gloves on with a view to destroying any traces of evidence. The second applicant argued that he had not been involved in the actual murder and had only brought the car to his sister’s house on the instructions of a member of the first applicant’s family.

3. The trial court established the facts of the case on the basis of an initial investigation carried out in Germany by the German authorities. The trial court therefore did not hear any of the witnesses heard by the German authorities, nor did it examine any physical piece of evidence, including the pistol used in the murder. That being said, throughout the criminal proceedings, notably at the hearings held on 6 June 2009 and 27 August 2009 the trial court took evidence from certain defence witnesses, namely C.R., E.U., M.G. and Ä°.H.D. The findings of the trial court, as contained in its reasoned judgment, may be summarised as follows.

4. In the context of a conflict between two different criminal groups (one of which comprised the family of the first applicant), a certain O.B. had shot and killed a certain D.B. in 2001 after having obtained a pistol from the second applicant. H.B., the father of D.B., had taken the view that the first applicant’s family had incited O.B. to kill his son. In February 2003 the second applicant was shot with five bullets, but survived. In April 2003 O.B. was shot and killed. In a shooting spree that took place that same month, both H.B. and the first applicant’s brother (Al.K.) were killed.

5. Recordings of intercepted telephone conversations among the first applicant and his family members revealed that the family had regarded the victim as responsible for the murder of the first applicant’s brother and that they had decided that he should be killed and had practised shooting drills for that purpose. Similarly, a phone call in February 2003 between the applicants demonstrated that they had been discussing killing the victim. Searches conducted at the house of the first applicant’s brother had also yielded video recordings of the victim, revealing that the family had been monitoring his movements.

6. Moreover, a search of the car used by the victim had yielded a technical device, namely a GPS receiver, that had been built into the car by a certain R.R. on the instructions of the applicants, who had used it to track the victim. Importantly, when testifying before the German authorities, R.R. stated that he had installed the device in the victim’s car on the instructions of the first applicant, but that the second applicant had also taken part in the installation. R.R. further attested that the second applicant had told him that the first applicant had been planning to kill the victim. In further statements before the German authorities R.R. stated that he had agreed to install the GPS device after the first applicant had told him that he had received threats from P.T. In any event, the trial court held that the second applicant had acknowledged in his statements before the investigating judge in Türkiye that he had thrown away a laptop from the car used in the murder which had been used to track the victim via the GPS receiver.

7. Crucially, the forensic studies carried out by the German authorities on the pistol used in the murder indicated that it had around 140 molecular traces, which belonged to, among other people, the second applicant and a person believed to be the first applicant (“a person with similar characteristics to Al.K. and E.K., the first applicant’s brothers”). The first applicant adamantly denied that that finding was correct, arguing that it was mere speculation given that the German authorities had not had his DNA profile in their possession and that, in any event, no traces implicating him had been found on the trigger of the pistol.

8. Mobile telephone data indicated that the two applicants had called each other a couple of times on the day of the murder, and cell tower records showing the movements of their mobile telephones indicated that the applicants had both been in Wiesbaden, where the murder took place, and that they had telephoned each other approximately an hour and a half before the murder. Importantly, the first applicant’s mobile telephone had stopped sending cell tower information shortly before the murder, and the GPS device installed in the victim’s car, enabling the tracking of the victim, had been turned off shortly after the murder. Similarly, data contained in the same GPS device also showed that phone calls had been made between the applicants immediately before the murder. The trial court further had regard to the fact that the whereabouts of the applicants had remained unknown after the murder.

9. Lastly, the trial court held that another witness, a certain H.E., had stated that the second applicant had furnished the first applicant with the pistol that had later reportedly been used in the murder and that the first applicant had been with the second applicant at all times. H.E. further stated that the first applicant had reiterated many times that the victim had been responsible for the killing of the first applicant’s brother and that the victim should be killed.

10. Throughout the trial, the applicants’ lawyers asked the trial court to examine the witnesses, including H.E., R.R. and the eyewitnesses of the killing of P.T., in person. If that was not feasible, the lawyers asked the court to obtain the witnesses’ statements by letters of request or to appoint a judge ( naip hakim ) or constitute a panel of judges to examine them in Germany, and in either case to ask them to identify the applicants. If none of those procedures worked, the lawyers asked the trial court to examine the witnesses in question via the use of video conference techniques pursuant to Article 180 § 5 of the Code of Criminal Procedure and, while observing the demeanour and credibility of the witnesses, to ask them to identify the applicants. The trial court rejected those requests, holding that they had been aimed at prolonging the criminal proceedings, given that the case had been sufficiently established.

11. On 14 December 2010 the Court of Cassation upheld the trial court’s judgment.

THE COURT’S ASSESSMENT

12. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.

13. The applicants contended that their right to a fair trial had been breached in that the trial court had relied entirely on the investigation carried out by the German authorities and had not examined a single witness in person before sentencing the applicants to life imprisonment. In that connection, the applicants complained of not having been able to challenge the evidence of H.E., R.R. and the eyewitnesses of the offence, in person before the trial court.

14. The Government submitted that the domestic courts had carefully examined the body of evidence and that there had therefore been no violation of Article 6 §§ 1 and 3 (d) of the Convention.

15. The principles regarding the right to obtain the attendance and examination of witnesses under Article 6 §§ 1 and 3 (d) can be found in Al ‑ Khawaja and Tahery v. the United Kingdom ([GC], nos. 26766/05 and 22228/06, §§ 118-47, ECHR 2011); Schatschaschwili v. Germany ([GC], no. 9154/10, §§ 100-31, ECHR 2015); and Faysal Pamuk v. Turkey (no. 430/13, §§ 44-50, 18 January 2022). Those principles lay down a tripartite test whereby the Court is required to examine

(i) whether there was a good reason for the non-attendance of the absent witness at the trial;

(ii) whether the evidence given by the absent witness was the sole or decisive basis for the applicants’ conviction or carried significant weight in that regard; and

(iii) whether there were sufficient counterbalancing factors to compensate for the handicaps under which the defence laboured vis ‑ à ‑ vis the evidence given by the absent witness.

Moreover, the Court has also observed that, as with all complaints under Article 6 § 3, the defendants’ inability to examine a witness should be assessed in the light of the impact that it had on the overall fairness of his trial.

16. For the above-mentioned tripartite test to be applicable, the evidence given by the absent witnesses should at least carry significant weight in respect of the applicants’ conviction (see Schatschaschwili , cited above, § 116). The domestic courts’ judgments in the present case made no indication as regards the weight attached to the evidence given by the absent witnesses. It thus falls on the Court to carry out its own assessment on this issue with a view to ascertaining whether, at the very least, the evidence given by H.E., R.R. and the eyewitnesses may be regarded as having carried significant weight in respect of the applicants’ conviction.

17. In that connection, the Court notes that almost the entire body of evidence against the applicants had been collected in Germany by the German authorities, but that it was assessed and relied upon by the Turkish courts, resulting in the applicants’ conviction for the murder of P.T. and their being sentenced to life imprisonment. The Court is aware of the seriousness of the accusations and the probative value of the evidence other than the testimonies of the witnesses who gave evidence in Germany, such as the mobile telephone data, which showed that the second applicant had been at the crime scene on the day of the murder, that the first applicant’s mobile telephone had stopped sending cell tower signals shortly before the murder and that the GPS device had been activated to track the victim with the help of a laptop located in the car used by the two applicants and had been turned off shortly after the murder took place. Account should also be taken of the second applicant’s confession that he had disposed of the laptop in question and that he had undertaken to “clean” the car with the help of his sister and a neighbour of hers immediately after the incident.

18. Similarly, the Court finds it significant that the forensic studies carried out by the German authorities revealed that the second applicant’s DNA and fingerprints had been identified on certain items seized from the car. Those studies also established that the pistol found near the crime scene, which was found to have been used in the murder, contained traces of the second applicant’s DNA and the DNA of a person believed to be the first applicant in view of the similarity of the DNA trace found on the pistol with his brothers’ DNA.

19. As regards the weight given to the eyewitnesses’ testimony, the first applicant’s lawyer conceded that none of those witnesses had identified the first applicant as the person who had shot and killed the victim. Similarly, the descriptions provided by two of those witnesses as regards the physical appearance of the person who had killed the victim did not bear any resemblance to the first applicant, as was conceded by both that applicant and his lawyer. It does not therefore appear that the testimonies of the eyewitnesses were used by the trial court to the detriment of the first applicant. That being the case, the Court is unable to conclude that the evidence given by the eyewitnesses carried any significant weight in respect of the trial court’s findings concerning the first applicant. The Court would also note that the trial court based its findings on the assumption that the eyewitnesses of the offence were unable to identify the first applicant as the perpetrator so that a personal examination of these witnesses would arguably not have yielded any further elements in the first applicant’s favour.

20. Similar considerations also hold true in so far as the testimonies of the eyewitnesses concerned the second applicant, for the following reasons. While it is true that when citing the evidence collected by the German authorities the trial court indicated that the descriptions given by one of those witnesses had corresponded to the physical appearance of the second applicant, it appears to have attached no particular weight to those descriptions in the part of the reasoned judgment entitled “assessment of evidence”. Instead, the trial court appears to have emphasised other evidence, such as the above-mentioned mobile telephone data and the findings of the forensic studies as well as the telephone recordings revealing that the two applicants had discussed killing the victim in February 2003.

21. As regards the statements of H.E. the Court notes that the trial court merely stated that the forensic findings concerning the pistol used in the incident had been corroborated by H.E.’s testimony. Viewing this statement in the context of the abundant evidence available in the case file, and while it is ready to assume that such a finding was of some importance, the Court does not consider that this information was given such significant weight in respect of the applicants’ conviction so as to require H.E.’s presence for examination. This also holds true in respect of the testimony of R.R. concerning the involvement of the applicants in the installation of a GPS device in the victim’s car, given that the second applicant confessed to having disposed of the laptop through which the victim’s car had been monitored with the help of the GPS device and that the source of the call records between the applicants was, so the trial court held, the data contained in that device.

22. In view of the above, the Court is unable to conclude that the statements made by the above-mentioned absent witnesses were such as to carry significant weight in respect of the applicants’ conviction, with the result that there is no call for the Court to apply the tripartite test established and developed in Al ‑ Khawaja and Tahery and Schatschaschwili (both cited above). The inability of the applicants to directly examine certain witnesses residing in Germany did not, therefore, render the criminal proceedings against them unfair.

23. It follows that the applications must be rejected as being manifestly ill-founded within the meaning of Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Decides to join the applications;

Declares the applications inadmissible.

Done in English and notified in writing on 15 June 2023.

Dorothee von Arnim Pauliine Koskelo Deputy Registrar President

Appendix

List of cases:

No.

Application no.

Case name

Lodged on

Applicant Year of Birth Place of Residence Nationality

Represented by

1.

40198/11

Karakoç v. Türkiye

24/04/2011

Remzi KARAKOÇ 1970 Bingöl German

Ulrich SOMMER

2.

47696/11

Küçüktepe v. Türkiye

04/04/2011

Yusuf KÜÇÜKTEPE 1972 Antalya Turkish

Hüseyin GÜR