Use of anonymous witness testimony without measures to compensate for the handicaps caused to the defence by the lack of a direct confrontation with the witness
JUDGMENT:
Balta and Demir v. Turkey 23.06.2105 (no. 48628/12)
SUMMARY:
The case concerned the applicants’ conviction for membership of an illegal organisation, on the basis of statements by an anonymous witness whom the applicants were unable to question at any stage of the proceedings. The Court observed that the applicants and their lawyers had not had the opportunity at any stage in the proceedings to question the anonymous witness and to cast doubt on his credibility. The Court found that the domestic courts had not implemented the procedural safeguards provided for by Turkish law, in cases involving the use of anonymous witness testimony, in order to counterbalance the handicap to the defence arising from the lack of a direct confrontation with the witness. It reiterated that any measure restricting the rights of the defence had to be strictly necessary; if less restrictive measures could suffice then those measures should always be applied.
PROVISIONS:
Article 6 § 1
Article 6 § 3 (d)
PRINCIPAL FACTS
The applicants, Ahmet Balta and Ahmet Gökşen Demir, are Turkish nationals who were born in 1974 and 1991 respectively and live in Tunceli. On 5 June 2009 the prosecutor’s office heard evidence from an anonymous witness in the context of a criminal investigation into the activities of the PKK, an illegal organisation. The witness claimed to have identified Mr Balta and Mr Demir as members of that organisation. On 22 June 2009 the applicants were arrested and placed in police custody.
On 25 June 2009 the prosecutor’s office questioned them about their links with the PKK. During those interviews they disputed the statements made by the anonymous witness who claimed to have identified them. Mr Demir’s lawyer requested that the witness’s identity be disclosed. Both applicants were released the same day. On an unspecified date Mr Balta, Mr Demir and 14 other persons were charged with membership of the PKK. On 16 September 2009, acting on judicial instructions, a judge questioned the anonymous witness. His evidence was heard in private, in accordance with Article 58 of the Code of Criminal Procedure and the Witness Protection Act (Law no. 5276). On 20 October 2010 Mr Balta and Mr Demir denied the accusations against them and contested the manner in which the evidence of the anonymous witness had been heard. On 21 October 2010 the Assize Court sentenced them to six years and three months’ imprisonment for membership of an illegal organisation.
On 10 December 2010 Mr Balta and Mr Demir appealed on points of law. The Court of Cassation
upheld the first-instance judgment.
THE DECISION OF THE COURT
Article 6 § 1 read in conjunction with Article 6 § 3 (d)
The Court reiterated that Article 6 § 3 (d) (right to examine witnesses) enshrined the principle that,
before an accused could be convicted, all evidence against him must normally be produced in his
presence at a public hearing with a view to adversarial argument. The rights of the defence required
as a general rule that the accused should be given an adequate and proper opportunity to challenge
and question a witness against him, either when that witness made his statement or at a later stage
of proceedings.
The Court had spelled out in its case-law (Grand Chamber judgment in Al-Khawaja and Tahery v. the
United Kingdom, 15.12.2011) the criteria to be applied in cases involving statements taken from a
witness who was absent from the trial. First of all, the Court had to verify whether there had been
good reason for the inability of the defence to question or have questioned a witness against the
accused. Next, it had to ascertain whether the testimony of the absent witnesses had been the sole
or decisive evidence against the defendant. Lastly, the proceedings could be deemed to have been
fair overall if there were sufficient counterbalancing factors in place, including measures that
permitted a fair and proper assessment of the reliability of that evidence to take place.
The Court observed in the present case that the information in the case file offered no insight into
the circumstances in which the witness had been granted anonymity or the authority that had taken
that decision. The Government had provided no information on this point. The Court noted that at
the trial stage the evidence of the anonymous witness had not been heard by the trial court but by
an Assize Court judge acting on judicial instructions, who had questioned the witness at a private
hearing. The judge who had taken the witness statements had given no reasons as to why the
witness’s anonymity had been preserved or why his evidence had been heard without the defence being present. The judge had simply stated, without further explanation, that the witness had given
evidence in private.
Likewise, the trial court had not stated the reasons that had led it to preserve the witness’s
anonymity and not to hear evidence from him in the presence of the defence. In dismissing the
defence’s request for the witness to be examined, the Assize Court had merely stated that the
witness’s identity could not be disclosed and that his statement had been taken on the basis of
judicial instructions. Since the domestic courts had not demonstrated that they had sought to
establish why the witness had been granted anonymity and why he had not given evidence in the
presence of the defence, it could not be said that there had been good reason for preventing the
defence from questioning the witness or having him questioned.
The Court noted that the domestic courts had taken into account a number of items of evidence in
convicting Mr Balta and Mr Demir of membership of an illegal organisation. However, while the
statement of the anonymous witness was not the sole evidence on which the applicants’ conviction
had been based, it had nonetheless been decisive. The finding that organic links existed between the
applicants and the illegal organisation had been based mainly on the statements of the anonymous
witness.
The Court noted that, since the witness had never appeared before the judges of the Malatya Assize
Court, the latter had not had a chance directly to assess the credibility and reliability of his
testimony. The absence of this anonymous witness had denied the trial judges the opportunity to
observe his conduct under questioning and to form their own opinions as to his credibility.
Lastly, the Court observed that the applicants and their lawyers had not had the opportunity at any
stage in the proceedings to question the anonymous witness and to cast doubt on his credibility.
They had therefore been unable to observe his reaction to direct questions that would have allowed
them to test the reliability of his statements. Where the judge gave permission for evidence to be
heard from a witness without the defence present, the anonymous witness could be questioned in a
room away from the hearing room, with an audio and video link enabling the accused to put
questions to the witness. The Assize Court had not followed that procedure, provided for by
domestic law, and had offered no explanation in that regard. The court had apparently not even
considered implementing the procedural safeguards provided for by Turkish law, in cases involving
the use of anonymous witness testimony, in order to counterbalance the handicap caused to the
defence by the lack of a direct confrontation.
As a general rule, any measure restricting the rights of the defence had to be strictly necessary; if a
less restrictive measure could suffice then that measure should always be applied. However, the
reasoning of the Assize Court’s decision gave no indication that less restrictive measures had been
considered. Accordingly, it could not be said that the procedure followed before the authorities had
afforded Mr Balta and Mr Demir safeguards capable of counterbalancing the handicaps under which
the defence had laboured.
Consequently, having regard to the overall fairness of the proceedings, the Court held that the
applicants’ defence rights had been restricted to an extent incompatible with the requirements of a
fair trial, and that there had been a violation of Article 6 § 1 taken in conjunction with Article 6 § 3
(d) of the Convention.
Just satisfaction (Article 41)
The Court held that Turkey was to pay the applicants 2,000 euros (EUR) each in respect of
non-pecuniary damage(echrcaselaw.com editing).
