Art. 6 §§ 1 and 3 (d) • Trial leading to conviction for membership of illegal armed organisation unfair, due to applicant’s inability to confront witness against him, and despite his lawyer being able to cross-examine the witness • No good reason for failure to obtain statement from witness in applicant’s presence, which was essential to challenge reliability of allegations and to dissipate uncertainty surrounding applicant’s physical identification • Serious handicap faced by defence not sufficiently compensated by procedural safeguards in the circumstances.

The Court’s assessment

Relevant case-law

36.  The Court reiterates that the guarantees in paragraph 3 (d) of Article 6 are specific aspects of the right to a fair hearing set forth in paragraph 1 of this provision; it will therefore consider the applicant’s complaint under both provisions taken together (see Schatschaschwili v. Germany [GC], no. 9154/10, § 100, ECHR 2015).

37.  Article 6 § 3 (d) enshrines the principle that, before an accused can be convicted, all evidence against him must normally be produced in his presence at a public hearing with a view to adversarial argument. Exceptions to this principle are possible but must not infringe the rights of the defence, which, as a rule, require that the accused should be given an adequate and proper opportunity to challenge and question a witness against him, either when that witness makes his statement or at a later stage of proceedings (see Al‑Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, § 118, ECHR 2011).

38.  The Court refers in this connection to its case-law under paragraphs 1 and 3 (d) of Article 6 of the Convention, and notes in particular the principles summarised and refined in Al‑Khawaja and Tahery (cited above, §§ 119-47) and further clarified in Schatschaschwili (cited above, §§ 100-31), regarding the admission of untested incriminating witness evidence in criminal proceedings(for a recapitulation of those principles, see Boyets v. Ukraine, no. 20963/08, §§ 74-76, 30 January 2018). While originally developed for scenarios in which a prosecution witness does not appear at the trial, the Court has accepted that the Al‑Khawaja and Schatschaschwili principles can also be applicable where witnesses do appear before the trial court but neither the applicant nor his counsel is able to examine them (see, mutatis mutandis, Ürek and Ürek v. Turkey, no. 74845/12, § 49, 30 July 2019, and Chernika v. Ukraine, no. 53791/11, § 46, 12 March 2020).

39.  The Court notes, however, that the case at issue presents a different type of problem in that while the applicant himself was not able to confront the prosecution witness against him, his counsel, unlike in the above-mentioned cases, had the opportunity to cross-examine that witness before the trial court (see paragraph 21 above). The Court has held in some similar cases that the defence counsel’s ability to hear the statements of the witness and to put questions to them was sufficient to safeguard the interests of the defence on the facts (see Šmajgl v. Slovenia, no. 29187/10, § 64, 4 October 2016, and the cases cited therein). The significance attached by the Court to the presence of a lawyer in such situations is also apparent from its finding in a number of cases that while in exceptional circumstances there may be reasons for hearing evidence from a witness in the absence of the person against whom the statement is to be made, that would be acceptable only on the condition that his lawyer was present (see, for instance, Hilden v. Finland (dec.), no. 32523/96, 14 September 1999, and Šmajgl, cited above, § 63 in fine; see also X. v. Denmark, no. 8395/78, Commission decision of 16 December 1981, Decisions and Reports (DR) 27, p. 55).

40.  Having said that, the Court has also acknowledged that there may nevertheless be circumstances where the defence counsel’s involvement alone may not suffice to uphold the rights of the defence and the absence of a direct confrontation between a witness and the accused might entail a real handicap for the latter (see Šmajgl, cited above, § 65). Accordingly, it now falls on the Court to determine whether the present case involved such circumstances that called for the applicant’s direct confrontation with the witness against him. In making this assessment, it will borrow, as relevant, the approach and principles developed in respect of absent witnesses, and will ask (i) whether there was a good reason to hear evidence from the witness E.A. in the absence of the applicant; (ii) whether the evidence given by that witness was the sole or the decisive basis for the applicant’s conviction or carried significant weight; and (iii) whether there were sufficient counterbalancing factors in place to compensate for the difficulties encountered by the defence as a result of the absence of the applicant’s direct confrontation with E.A., focusing in particular on the question whether those difficulties were of a nature that could be effectively offset by the applicant’s lawyer’s presence at the hearing where E.A. was heard. When responding to these questions, the Court will ultimately seek to establish whether the object and purpose of the protection under Article 6 § 3(d), which is to give an accused an adequate opportunity to challenge and question a witness against him, could be achieved in the present circumstances without ensuring the direct confrontation of the applicant with the witness E.A.

41.  Before embarking on the application of these principles to the present case, the Court considers it important to stress that its primary concern under Article 6 § 1 is to evaluate the overall fairness of criminal proceedings (see Schatschaschwili, cited above, § 101). That is the ultimate goal of various tests developed to examine different matters relating to specific rights guaranteed by Article 6 § 3 (see, for instance, Chernika, cited above, §§ 51 and 52, and the cases cited therein). Compliance with the requirements of a fair trial must therefore be examined in each case having regard to the development of the proceedings as a whole and not on the basis of an isolated consideration of one particular aspect or one particular incident (see Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3 others, § 251, 13 September 2016).

Application of the above principles to the present case

  • Whether there was a good reason for not obtaining E.A.’s statements in the presence of the applicant

42.  The Court reiterates at the outset that the lack of a good reason for a prosecution witness’s absence is a very important factor to be weighed in the balance when assessing the overall fairness of a trial, and one which may tip the balance in favour of finding a breach of Article 6 §§ 1 and 3 (d) (see Schatschaschwili, cited above, § 113). The Court considers that the same applies when the witness was not “absent” per se, but the accused was denied the opportunity to confront the witness (see Ürek and Ürek, cited above, § 66).

43.  Turning to the facts before it, the Court notes that the applicant, who was serving a prison sentence at the material time in connection with a previous conviction, was brought to all the hearings held before the Istanbul Assize Court, except for the one where E.A. was heard. No explanation was provided by the trial court during the proceedings, or subsequently by the Government before the Court, as to why the applicant’s presence could not be secured at that hearing despite his being under the exclusive control of the State. In fact, the trial court does not seem to have given any consideration to the implications of the applicant’s absence in terms of the rights of the defence. The Court further notes that, contrary to the Government’s allegations, the applicant had requested to be confronted with E.A. from the very beginning of the proceedings (see paragraphs 19 and 20 above) and that he had complained about the absence of any such confrontation both in his defence statements before the trial court, and subsequently to the Court of Cassation (see paragraphs 24 and 28 above).

44.  In these circumstances, the Court cannot find that there was a good reason for the failure to obtain a statement from E.A. in the applicant’s presence, or that the authorities displayed appropriate diligence to ensure the applicant’s presence.

  • Whether the evidence given by E.A. was the sole or decisive basis for the applicant’s conviction or whether it carried significant weight

45.  The Court observes that the charges brought against the applicant were initially based on two pieces of evidence, the first being the allegations made by the applicant’s brother G.K. when interviewed at the Istanbul Security Directorate, and the second being E.A.’s statements during the questioning and photo identification procedure conducted at the Istanbul Security Directorate (see paragraph 17 above). The Court further observes that during the ensuing trial stage, both G.K. and E.A. were heard by the Istanbul Assize Court as witnesses. However, when delivering its judgment against the applicant, the first-instance court appears to have cited expressly only the evidence provided by E.A. in concluding that the applicant had been active at the PKK’s Kelereş camp in Iran and had therefore been a member of that organisation as accused. The Court notes that the first-instance court did not refer in any way to G.K.’s statements, or to any other direct or circumstantial evidence, in establishing the applicant’s guilt (see paragraph 25 above).

46.  The Court therefore considers, in the light of the domestic court’s assessment in its reasoned judgment, that the statements made by E.A. at the Istanbul Security Directorate constituted the decisive, if not the sole, basis for the applicant’s conviction, although E.A. expressed doubts regarding the accuracy of those statements when he was later heard by that court (see paragraphs 52 and 53 below for further discussion on this).

  • Whether there were sufficient counterbalancing factors to compensate for the handicaps under which the defence laboured

47.  The Court considers, in the light of the foregoing, that the denial of the applicant’s right to confront the witness E.A., for no good reason, had put the defence at a serious disadvantage, having particular regard to the critical role that his statement played in the applicant’s conviction. It now remains to be determined whether there were sufficient counterbalancing factors to compensate for the handicaps under which the defence laboured, including measures that permitted a fair and proper assessment of the reliability of the evidence in issue.

48.  In this context the Court reiterates that the extent of the counterbalancing factors necessary in order for a trial to be considered fair depends on the weight of the evidence in question. The more important that evidence, the more weight the counterbalancing factors would have to carry in order for the proceedings as a whole to be considered fair (see Schatschaschwili, cited above, § 116). Given the centrality of E.A.’s evidence, the Court considers that weighty counterbalancing factors were required to ensure the fairness of proceedings (see Chernika, cited above, § 66). The Court has considered the following elements to be relevant in this context: the trial court’s approach to the evidence in question; the availability and strength of further incriminating evidence; and the procedural measures taken to compensate for the lack of opportunity to directly cross-examine the witnesses at the trial (see Schatschaschwili, § 145, and Ürek and Ürek, § 60, both cited above).

  • Approach of the trial court to the witness evidence and the availability of further incriminating evidence

49.  The Court has already established above that the evidence provided by E.A. during his police questioning was, to all intents and purposes, the sole evidence used to convict the applicant. There was certainly no other evidence in the case file submitted to the Court regarding the applicant’s alleged presence at the Kelereş camp in Iran. Moreover, while the applicant’s brother G.K. had made certain allegations at the time of his police questioning that suggested the applicant’s continued involvement with the “organisation” in Romania following his release from prison, he later retracted those statements, which he claimed had been made under duress and in the absence of a lawyer. The Court notes that the trial court’s judgment did not contain any discussion of the admissibility or the probative value of G.K.’s statement, nor did it refer in any way to those statements in determining the applicant’s guilt. In those circumstances, the Court cannot but hold that there was no other evidence that directly or indirectly corroborated E.A.’s witness statement.

50.  As for the trial court’s approach to E.A.’s witness statement, the Court considers at the outset that there were a couple of factors that undermined the reliability of that statement. It notes firstly that E.A. had made the relevant statement against the applicant following his surrender to the police under the Reintegration of Offenders into Society Act, in order to benefit from certain advantages in exchange for information on the PKK (see paragraphs 9 and 31 above). In his statement – which had been taken in the absence of a lawyer – at the Anti-Terrorist Branch of the Istanbul Security Directorate, he had accordingly provided information regarding some thirty alleged members of the PKK, and had identified some of those individuals, including the applicant, on the basis of photographs.

51.  The Court reiterates, however, that the use of statements given by witnesses in return for immunity or other advantages may cast doubt on the fairness of the proceedings against the accused and can raise difficult issues, to the extent that, by their very nature, such statements are open to manipulation and may be made purely in order to obtain the advantages offered in exchange, or for personal revenge. The risk that a person might be accused and tried on the basis of unverified allegations that are not necessarily disinterested must not, therefore, be underestimated (see, mutatis mutandis, Habran and Dalem v. Belgium, nos. 43000/11 and 49380/11, § 100, 17 January 2017, and the cases cited therein, and Adamčo v. Slovakia, no. 45084/14, § 59, 12 November 2019).

52.  In the Court’s opinion, the reliability of E.A.’s statement was further weakened when he stated before the trial court, while under oath, that he was not certain that the person in the photograph shown to him was “Mahir” from the Kelereş camp. The Court observes that the trial court chose to attach more weight to E.A.’s earlier statement to the police in view of its temporal proximity to the alleged events. The trial court’s choice is not problematic in itself, given that assessment of evidence is primarily a matter for the jurisdiction of the domestic courts, and that there is no hard and fast rule that requires domestic courts to give precedence under all circumstances to testimony given at the trial hearing (see, for instance, Makeyan and Others v. Armenia, no. 46435/09, §§ 40 and 47, 5 December 2019).

53.  That said, the particular context in which E.A. had made his initial police statement, coupled with the uncertainty that he displayed at the hearing regarding the accuracy of that prior statement, should have prompted the trial court to treat the evidence given by E.A. with caution, noting in particular the weight of that evidence and the seriousness of the offence with which the applicant was charged. There is, however, no indication in the record of the hearing or the reasoned judgment itself to suggest that the trial court showed the caution called for in the circumstances by engaging in a meaningful assessment of the witness’s credibility in the light of the foregoing factors.

  • Procedural safeguards in place to remedy the applicant’s inability to examine E.A. in person before the trial court

54.  Pursuant to Article 210 § 1 of the Code of Criminal Procedure, where the evidence against an accused consisted solely of the statements of a witness, that witness had to be heard in court. The Court notes that in accordance with that provision, E.A. was heard by the trial court, which therefore had the opportunity to make observations on his demeanour and credibility as a witness. Furthermore, and as mentioned above (see paragraph 21), although the applicant was absent, his lawyer was present at the hearing when E.A. was heard and was able to put questions directly to him to challenge his credibility, which, in certain circumstances, may be sufficient to uphold the rights of the defence (see, for instance, Šmajgl, cited above, § 63, and the cases cited therein). It is, moreover, not disputed that the applicant had acquainted himself with the contents of the statements given by E.A. both to the police and subsequently at the trial, and that he therefore had the opportunity to challenge their veracity and reliability before the trial court, and to give his version of events.

55.  The Court therefore acknowledges that the defence was able to benefit from some important procedural safeguards that were intended to enable a fair and proper assessment of the reliability of E.A.’s statements. That said, having regard to the sheer weight of E.A.’s statements and the special context in which they were obtained, coupled with the seriousness of the punishment which the applicant faced, the Court does not consider that those safeguards may be taken to have sufficiently compensated for the handicap faced by the defence in the present case. This is particularly so given the absence of a good reason to justify the applicant’s inability to examine E.A. in person (see paragraphs 42-44 above). In the Court’s view, a confrontation between the applicant and E.A. was essential not only to allow the applicant to challenge the reliability of the latter’s allegations regarding him – which he could have admittedly done through his lawyer, at least to a certain extent – but above all to dissipate the uncertainty surrounding the physical identification that was at the heart of the case brought against the applicant, which could not sufficiently have been achieved through the lawyer’s questioning of the witness. The Court reiterates in this connection that it is normally desirable that witnesses should identify in person someone suspected of serious crimes if there is any doubt about the person’s identity (see, mutatis mutandis, Doorson v. the Netherlands, 26 March 1996, § 75, Reports of Judgments and Decisions 1996‑II). (…)

57.  There has, accordingly, been a violation of Article 6 §§ 1 and 3 (d) of the Convention in the present case.

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