Sentence to life without examination of key witnesses! Violation of a fair trial
JUDGMENT
Faysal Pamuk v. Turkey 18.01.2022 (app. no. 430/13)
SUMMARY
The case concerned Mr Pamuk’s trial on terrorism-related charges, in particular the use of evidence
that had been given in other jurisdictions the absence of Mr Pamuk or his counsel following letters
of request (talimat).
The Court found in particular that letters of request and examining witnesses in other jurisdictions
could not be considered an adequate method of ensuring a fair trial in the circumstances of the
present case. Firstly, it meant that domestic courts could simply refrain from examining whether
there were good reasons for the non-attendance of witnesses at trial. Secondly, it effectively meant
that the accused and/or defence lawyers would have to travel to different places with a view to
attending the hearings where witnesses would be giving evidence in order to benefit from the right
to examine them, placing a disproportionate burden on the defence. Thirdly, the relevant domestic
law appeared to exclude a detainee’s attendance at a hearing outside of the jurisdiction in which he
or she was detained. Lastly, the approach was capable of jeopardising the principle of immediacy, as
the trial court would not have the possibility to directly observe the demeanour and credibility of
particular witnesses.
Accordingly, the absence of the four witnesses from the trial, the lack of a confrontation between
them and the applicant, and the use by the court of their evidence as the cornerstone of his
conviction and life sentence without the necessary procedural safeguards, had substantially
hindered the defence in testing the reliability of their evidence and had, in the circumstances of the
present case, tainted the overall fairness of the proceedings.
PROVISION
Article 6 par. 1
PRINCIPAL FACTS
The applicant, Faysal Pamuk, is a Turkish national who was born in 1978 and was detained in Amasya
E-type Prison at the time of application.
During police questioning in connection with a terrorist organisation, a “warrior” (or possibly more
than one) from Diyarbakır codenamed, variously, “Avarej”, “Avareş” or “Avreş” was mentioned by
several suspects in connection with terrorism incidents.
On 5 November 2003 the courts ordered the detention in absentia of 13 individuals, including Mr
Pamuk, for their alleged involvement in an armed attack on a police checkpoint in 1997, which had
resulted in two deaths.
On 7 December 2009 Mr Pamuk went to the public prosecutor’s office and voluntarily handed
himself in, submitting that he had been a member of the PKK (Kurdistan Workers’ Party; an illegal armed organisation) for 11 years, from 1994 to 2005. During questioning he revealed that his codename was “Avareş Tekoşin” and not “Avareş”.
In 2010 a bill of indictment against the applicant was filed with the special jurisdiction Second
Division of the Erzurum Assize Court, charging him with carrying out activities aimed at bringing
about the secession of part of the national territory, for the following specific acts for which
“Avareş” had been implicated by witnesses:
(i) the armed attack on a police checkpoint in 1997; (ii) an armed assault on two police officers, the
abduction of a prison guard and an armed attack on a block of flats allocated to police officers with a
rocket launcher in 1995; and (iii) an armed conflict between PKK members and the armed forces in
1997 resulting in two gendarmes being injured.
At trial, Mr Pamuk’s council asked to have examined those who had stated that the applicant had
taken part in the armed activities and for an in-person confrontation between them and his client.
The confrontation did not take place. The court sent letters of request to other jurisdictions to
ascertain the witnesses’ whereabouts along with other steps, failing to secure the witnesses’
attendance. One witness was examined in another city without Mr Pamuk or his representatives
present.
In April 2011 Mr Pamuk was sentenced to life imprisonment. The trial court referred heavily to the
statements made in PKK arrests at different times and places identifying him as the PKK “warrior”
“Avareş”.
Relying on Article 6 §§ 1 (right to a fair trial) and 3 (d) (right to obtain attendance and examination
of witnesses), the applicant complained that he had not had a fair trial as he had been prevented
from confronting certain witnesses in person.
THE DECISION OF THE COURT…
Concerning the non-attendance of witnesses at the trial, the Court found in particular that that had
resulted from the trial court’s inflexibility alone. It also noted that three of them had been in prison
and thus under the control of the State. The steps taken to locate the witnesses had been
inadequate. Overall, no good reason was given by the authorities for their absence.
Although other evidence was available, the trial court’s reasoning appeared to give central
importance to the statements of the four witnesses who had not been cross-examined in the trial.
For the Court, the applicant’s conviction had overall been decisively dependent on that evidence.
The domestic authorities had a duty to counterbalance the evidence given by absent witnesses at
trial. The Court determined that the trial court had not treated the evidence in question with
particular caution or given it less weight than other evidence. It had ignored inconsistencies in that
evidence, including the fact that there appeared to be more than one “Avareş” in the PKK.
The Court found in particular that letters of request and examining witnesses in other jurisdictions
could not be considered an adequate method of ensuring a fair trial in the circumstances of the
present case. Firstly, it meant that domestic courts could simply refrain from examining whether
there were good reasons for the non-attendance of witnesses at trial. Secondly, it effectively meant
that the accused and/or defence lawyers would have to travel to different places with a view to
attending the hearings where witnesses would be giving evidence in order to benefit from the right
to examine them, placing a disproportionate burden on the defence. Thirdly, the relevant domestic
law appeared to exclude a detainee’s attendance at a hearing outside of the jurisdiction in which he
or she was detained. Lastly, the approach was capable of jeopardising the principle of immediacy, as
the trial court would not have the possibility to directly observe the demeanour and credibility of
particular witnesses.
The Court concluded that the absence of the four witnesses from the trial, the lack of a
confrontation between them and the applicant, and the use by the court of their evidence as the
cornerstone of his conviction and life sentence without the necessary procedural safeguards, had
substantially hindered the defence in testing the reliability of their evidence and had, in the
circumstances of the present case, tainted the overall fairness of the proceedings.
There had thus been a violation of Article 6 §§ 1 and 3 (d) of the Convention.
Just satisfaction (Article 41)
The Court made no award in respect of just satisfaction. However, it did note that the case could be
reopened under Article 311 of the Code of Criminal Procedure.
