SECOND SECTION
CASE OF FİKRET KARAHAN v. TURKEY
(Application no. 53848/07)
 
 
JUDGMENT
Art 6 §§ 1 (criminal) 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
 
STRASBOURG
16 March 2021
 
FINAL
 
16/06/2021
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Fikret Karahan v. Turkey,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
 Jon Fridrik Kjølbro, President,
 Marko Bošnjak,
 Aleš Pejchal,
 Egidijus Kūris,
 Carlo Ranzoni,
 Pauliine Koskelo,
 Saadet Yüksel, judges,
and Stanley Naismith, Section Registrar,
Having regard to:
the application (no. 53848/07) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Fikret Karahan (“the applicant”), on 26 November 2007;
the decision to give notice to the Turkish Government (“the Government”) of the applicant’s complaints under Article 6 §§ 1 and 3 of the Convention and to declare the remainder of the application inadmissible;
the parties’ observations;
Having deliberated in private on 16 February 2021,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The case concerns the alleged violation of the applicant’s right to a fair trial under Article 6 §§ 1 and 3 of the Convention on account of his inability to examine a witness against him, the failure of the authorities to serve the reasoned judgment of the first-instance court on him and his lawyer, and the lack of an oral hearing before the Court of Cassation. THE FACTS
2. The applicant was born in 1972. At the time of lodging the present application, he was serving a prison sentence in Tekirdağ F-type prison. The applicant was represented by Mr R. Demir, a lawyer practising in Istanbul. 3. The Government were represented by their Agent. 4. The facts of the case, as submitted by the parties, may be summarised as follows. BACKGROUND TO THE CASEThe applicant’s previous convictions

5. On an unspecified date in 1996, criminal charges were brought against the applicant for membership of an illegal armed organisation, namely the PKK (Workers’ Party of Kurdistan). At the material time, the applicant was serving a prison sentence in connection with a previous conviction for aiding and abetting the PKK. 6. In December 1998, shortly after his release from prison, the applicant was convicted of membership of the PKK – in connection with the charges brought in 1996 – under Article 168 § 2 of the Turkish Criminal Code in force at the material time (Law no. 765), and was sentenced to twelve years and six months’ imprisonment. Criminal proceedings brought against the applicant’s brother
7. In August 2000 criminal proceedings were brought against the applicant’s brother, G.K., who was a teacher and a member of Eğitim-Sen (the Education and Science Workers’ Union), on suspicion of aiding and abetting the PKK. On 13 August 2000 G.K. was questioned at the Anti-Terrorist Branch of the Istanbul Security Directorate, without the assistance of a lawyer. During the questioning, G.K. was asked, inter alia, to provide information regarding his nine siblings. G.K. stated, with regard to the applicant, that following his release from prison (in 1998), he had left Turkey illegally and had undertaken activities in Romania under the code name of “Baran”, but that he was no longer in Romania. When G.K. was asked to give information on certain phone numbers found in his apartment, he said that one of the numbers starting with the international dialling code “+ 40” was the number used by the applicant in Romania. The applicant had allegedly told him to ask for “Baran” if he tried to reach him on that number. In the same statement, G.K. also said that he did not know where his brother had gone after his release, and that although he had called him three or four times in the meantime, he had never told him where he was. It was his guess that he had escaped from Turkey illegally. 8. It appears from the information in the case file that the criminal proceedings against the applicant’s brother were eventually discontinued following the public prosecutor’s decision not to bring charges. Criminal proceedings brought against E.A. 9. On 6 August 2003 the Reintegration of Offenders into Society Act (Law no. 4959), which provided for amnesty and mitigation of sentences for members of terrorist organisations in exchange for information, entered into force. 10. On 8 September 2003 a certain E.A., who had previously been a member of the PKK, surrendered himself to the authorities. He stated that he had left the PKK and that he wished to benefit from the Reintegration of Offenders into Society Act. 11. On the same day a statement was taken from E.A. at the Anti-Terrorist Branch of the Istanbul Security Directorate, without a lawyer present. E.A. was asked by the police to provide information on the activities and members of the PKK. He was also shown an album containing photographs of certain PKK members from the Security Directorate’s archives, and was asked to identify any members that he knew. 12. E.A. provided the police with information regarding some thirty PKK members. Among those names was an individual with the code name “Mahir”, who was allegedly active in the PKK’s Kelereş camp in Iran as an armed member. E.A. did not provide any further information regarding “Mahir”, such as any specific acts that he might have committed. It appears from a photo identification record drawn up subsequently on 10 September 2003 that upon being shown a black and white mugshot of the applicant – which measured approximately 3.5 cm by 3.5 cm, according to the information in the case file – E.A. had identified him as “Mahir” and had stated that he was certain about the accuracy of his identification. The identification record had been signed by E.A. and the two police officers who had conducted the identification. ARREST AND CONVICTION OF THE APPLICANT
13. On an unspecified date the applicant was arrested while trying to cross illegally from Ukraine to Poland on a forged passport. He was handed over to the Turkish authorities. 14. On 2 February 2005 he was questioned at the Anti-Terrorist Branch of the Istanbul Security Directorate in the presence of a lawyer. During the questioning, the applicant was asked to comment on the statements made by his brother G.K. and E.A. about him and to provide information on the activities that he had carried out on behalf of the PKK. Having established that the applicant had travelled from Istanbul Atatürk Airport to Kazakhstan on a forged passport, the police also asked him where he had obtained that passport, why he had escaped to Kazakhstan and where he had been before Ukraine. The applicant used his right to remain silent and said that he would give his statement before the public prosecutor. 15. On 3 February 2005 the applicant, accompanied by his lawyer, was brought before the Istanbul public prosecutor. He stated that after serving his sentence in connection with a previous conviction for aiding and abetting a terrorist organisation, he had been released from prison in December 1998. However, some three days after his release, he had been convicted again on the basis of other charges (membership of a terrorist organisation), and had been sentenced to twelve years and six months’ imprisonment. He had therefore left Diyarbakır and lived in Istanbul until 2004. He maintained that he had not carried out any activities in the name of an illegal organisation after his release from prison and that he was not a member of any such organisation. He further denied the statements made by G.K. and E.A. about him. He stated that he did not know E.A., and that he also did not know why his brother G.K. had made those claims concerning him. He said that he had never been to Romania, had never used the code name “Baran” and had never been to the above-mentioned PKK camp in Iran. He stated that he had left Turkey in May 2004 on a forged passport because he was being searched, and that he had chosen to go to Kazakhstan because there were no visa requirements for Turkish nationals there. He also explained that he had travelled to Ukraine from Kazakhstan, and that he had been caught while trying to cross over to Poland. 16. Later on the same day the applicant was brought before the Istanbul Assize Court for questioning and largely repeated his previous statement before the public prosecutor. The applicant asserted in addition that he had lived with his elder sister and brother while in Istanbul, and that he had left for Kazakhstan on a forged passport once he had learned that his conviction would become final. He stated that he had not otherwise left Turkey. He further explained that during his time in Istanbul, he had worked on several construction sites or in coffee houses. He also maintained that although he had requested to see a photograph of E.A. at the Security Directorate, his request had not been granted, and that he did not know who E.A. was. He denied, once again, having carried out activities for the PKK under the name “Mahir”, or any other code name. When he was shown the mugshot that had been used for his identification by E.A., he confirmed that the photograph was of him and that it had been taken by the police at the time of his arrest in 1996. The applicant’s lawyer challenged the reliability of the photo identification procedure, alleging that it was not apparent how E.A. had recognised and identified the applicant. At the close of the questioning, the judge at the Istanbul Assize Court decided to remand the applicant in custody. 17. On 8 February 2005 the Istanbul public prosecutor filed a bill of indictment with the Istanbul Assize Court, accusing the applicant, under Article 68 § 2 of the Turkish Criminal Code in force at the material time, of membership of the PKK/People’s Congress of Kurdistan (KONGRA-GEL). The public prosecutor relied in evidence on the statements provided to the police by the applicant’s brother G.K. and by E.A. 18. At the first hearing held before the Istanbul Assize Court on 8 June 2005, which was attended by the applicant and his lawyer, the applicant’s brother G.K. was heard under oath. G.K. stated that, at the time of his detention in 2000, he had been under pressure by the police and the practice of torture had been quite widespread. He had therefore made certain false statements about his brother to protect himself and his family. Accordingly, he denied the accuracy of the statements that he had made about the applicant and alleged that his brother had lived in Istanbul at the material time. He explained that during that period, the applicant had worked in various places, but that the family had also supported him financially. He further asserted that the applicant had had no affiliation with a terrorist organisation during that time. 19. At the same hearing, the applicant’s lawyer contended that there was no evidence to prove that the applicant had maintained ties with the PKK after his release from prison in 1998, and he requested that E.A. be summoned to be heard in court. That request was accepted by the trial court. 20. Following the failure of E.A. to attend the second hearing, held on 5 October 2005, the applicant and his lawyer – who were both present in court – repeated their request for him to be summoned. They stressed that there was no evidence against the applicant apart from E.A.’s photo identification. 21. E.A., who was at liberty pending his trial, attended the third hearing, held on 21 December 2005. Although the applicant’s lawyer was also present, the applicant himself was not brought to the hearing from the prison where he was serving his sentence for his previous conviction. 22. E.A. told the trial court, under oath, that he did not know “Fikret Karahan” (that is, the applicant) by name, nor did he know the real name of the person that he knew under the code name “Mahir”. He acknowledged that he had been shown some photographs while being questioned at the Security Directorate, but that he did not remember whether he had actually identified anyone. When he was shown the black and white mugshot of the applicant, he said that the person in the photograph looked like the “Mahir” that he knew, but that he did not know for certain whether it was him. He stated that he had seen “Mahir” at the camp in Iran sometime between 2000 and 2002. In response to a question raised by the applicant’s lawyer, E.A. stated that he had not witnessed any specific acts by “Mahir” at the camp, and that there had been ten to fifteen people with the same code name in the camp at the material time. He confirmed the accuracy of the police statement that he had made regarding certain PKK members and activities (see paragraph 12 above), but said that he did not remember in detail owing to the passage of time. E.A. said the following when he was shown a copy of the photo identification record dated 10 September 2003:
“The person indicated with the code name ‘Mahir’ ... in the record is the person that I may have seen at the camp. I have stated [before the police] that I may have seen [that person]. I cannot say for certain that it is the person with the code name ‘Mahir’.”
23. At the next hearing, held on 24 April 2006, where both the applicant and his lawyer were present, neither the defence nor the prosecution requested any further investigation. The public prosecutor then read out his observations on the merits of the case (esas hakkında mütalaa) to the trial court and recommended that the court find the applicant guilty as charged, but under the relevant Articles of the new Criminal Code. 24. At the hearing held on 18 October 2006, where both the applicant and his lawyer were present, the lawyer read out the defence arguments in response to the public prosecutor’s opinion (esas hakkında savunma). He stated in the first place that there was no offence or act that had been attributed to the applicant by the public prosecutor. The only evidence in the case file was the photo identification conducted by the police, where E.A. had likened the applicant to a certain “Mahir”. Although E.A. had been heard by the trial court on 21 December 2005, the applicant had not been able to confront him in person as he had not been brought to the hearing from prison. It was, moreover, evident from E.A.’s testimony before the trial court that he was not able to identify the applicant with any certainty. As for the statements made by the applicant’s brother G.K., it was clear from his testimony that he had made those statements under duress. The lawyer further argued that having regard to the applicant’s conviction for a second time in December 1998, it was understandable for him to have absconded for a lengthy period. However, in the absence of any credible evidence to show that he had committed the crime of “membership of a terrorist organisation” during that period as alleged by the prosecution, the applicant had to be acquitted. 25. At the same hearing, the Istanbul Assize Court convicted the applicant of membership of the PKK/KONGRA-GEL as charged and sentenced him to six years and three months’ imprisonment. The judgment was pronounced in the presence of the applicant and his lawyer. According to the text of the reasoned judgment, the trial court referred as evidence to E.A.’s photo identification and questioning by the police, E.A.’s testimony at the applicant’s trial and the “contents of the case file”. When it proceeded to assess the available evidence, it discussed exclusively the statement provided by E.A. to the police, which it considered sufficient to conclude that the applicant had been active at the PKK’s Kelereş camp in Iran and that, therefore, he had indeed committed the offence of “membership of a terrorist organisation”. While the trial court acknowledged the discrepancy between E.A.’s statements to the police and his subsequent court testimony, it considered the police statements to be credible, noting that they were more detailed and closer in time to the events in issue. In the judgment, the Istanbul Assize Court did not in any way refer to the statements of the applicant’s brother G.K. 26. On the same day the applicant’s representative lodged an appeal with the Court of Cassation and requested the holding of a hearing before the appeal court. The lawyer did not provide any specific arguments in support of the appeal, but only alleged that the first-instance court’s judgment was in contravention of the law in both procedural and substantive terms. 27. On 12 December 2006 the public prosecutor submitted his opinion on the applicant’s appeal, recommending that the Court of Cassation dismiss the request for the holding of a hearing and uphold the first-instance court’s judgment. 28. On 22 January 2007 the applicant’s lawyer responded to the public prosecutor’s opinion by way of submissions filed with the Court of Cassation. The lawyer indicated at the outset that the reasoned judgment of the Istanbul Assize Court had not been served on the defence, which in turn had prevented them from submitting reasons for the appeal. In his opinion, the failure to serve the reasoned judgment, coupled with the absence of a hearing before the Court of Cassation, would violate the applicant’s right to a defence. The lawyer further argued that the only witness against the applicant, who was a “confessor” (itirafçı[1]), had been heard by the trial court in the applicant’s absence, in contravention of the requirement for the defendant to be able to confront the sole witness against him. He also stressed that at the trial the witness had retracted his earlier statement, and that there was no other evidence to corroborate the allegations against the applicant. He therefore requested the quashing of the first-instance court’s judgment. 29. By a decision it delivered on 5 June 2007, the Court of Cassation dismissed the applicant’s request for a hearing, as the case did not meet the relevant criteria for the holding of a hearing, and upheld his conviction. The applicant alleged that neither he nor his lawyer had ever been notified of the Court of Cassation’s decision. RELEVANT LEGAL FRAMEWORK
30. Article 210 § 1 of the Code of Criminal Procedure (Law no. 5271 of 4 December 2004) provides as follows:
“If the evidence for an incident consists [only] of the statements of a witness, that witness must be heard in court. The reading of the record of a previous hearing or of a written statement shall not be a substitute for the hearing [by the trial court].”
31. The Reintegration of Offenders into Society Act (see paragraph 9 above) applies to members of terrorist organisations who surrender to the authorities without armed resistance (either directly, on their own initiative, or through intermediaries), those who can be considered to have left a terrorist organisation and those who have been arrested. The Act also applies to those who, despite being aware of the aims pursued by the terrorist organisation, have provided shelter, food, weapons, ammunition or any other kind of assistance. An important feature of the Act is that it provides for the possibility of reducing the sentences of those who wish to take advantage of the Act by supplying relevant information and documents on the structure and activities of the terrorist organisation (see Gül and Others v. Turkey, no. 4870/02, § 31, 8 June 2010). THE LAW
ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 OF THE CONVENTION
32. The applicant complained that the witness E.A. had been heard by the trial court in his absence, which had prevented him from putting questions to that witness as required under Article 6 § 3 (d) and had also breached his right to equality of arms and his right to defend himself as guaranteed under Article 6 § 1. Article 6 §§ 1 and 3 (d) of the Convention read as follows:
“1. 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.”
Admissibility
33. The Court observes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. MeritsThe parties’ submissions

34. The applicant maintained his initial allegations. He argued that the sole evidence used to secure his conviction had been the statement made to the police by a certain E.A. on the basis of a black and white photograph of him. According to the applicant, the use of that statement as evidence was problematic for a number of reasons. He submitted firstly that the identification procedure had not been conducted in accordance with the relevant rules. Secondly, he had not been given the opportunity to confront E.A. personally at any stage of the proceedings. He stressed in this connection that there was no evidence in the case file to suggest that the authorities had made any effort to make such a confrontation possible, nor was there any explanation as to why the applicant had not been brought to the hearing where E.A. had been heard by the trial court. Thirdly, in his testimony before the trial court, E.A. had clearly retracted his earlier statements concerning the applicant by expressing uncertainty regarding the identity of the person on the photograph in issue. Bearing in mind that an eventual confrontation would have served to verify whether the applicant was indeed the person suspected of the offence as presumed on the basis of a photograph, the absence of such a confrontation could not be compensated for simply by granting the applicant’s lawyer the opportunity to put questions to the witness. 35. The Government argued that both witnesses who had made statements against the applicant had been heard before the trial court in the presence of the applicant’s lawyer, who had been given the opportunity to put questions to them directly. As for the complaint that the applicant had not been able to confront E.A. personally, the Government noted that no such request had been made either at the hearing when E.A. had been heard, or at any other time. Moreover, the applicant had not requested the extension of the scope of the investigation at the hearing held on 24 April 2006. He had, however, had the opportunity to object to E.A.’s statement during the proceedings, which he had done in his defence submissions, as well as in his reply to the public prosecutor’s opinion. In these circumstances, and bearing in mind the domestic courts’ discretion in the assessment of evidence, there had been no violation of Article 6 under this head.

Article of the Convention at issue: Article 6
Outcome: violation