Violation of a fair trial when tghe key witness is kept anonymous and the accused is excluded from the right to examine him.
JUDGMENT
Süleyman v. Turkey 17.11.2020 (app. no. 59453/10)
SUMMARY
Right to be questioned by a key anonymous witness and a fair trial. The applicant was charged with premeditated murder. He was convicted according to the indictment. The national court based its decision on the testimony of an eyewitness who remained anonymous and the applicant was deprived of his right to be examined.
According to the Court, the accused in a criminal trial must have an effective opportunity to challenge the evidence against him, and the court must balance the rights between the accused and the victims.
The ECtHR found that the domestic court which convicted the applicant concealed the identity of the main witness without serious reason, as required by the ECHR, and in a contradictory manner, because during the trial, the witness’s name was revealed and there was no reasonable reason to keep it. of his anonymity. In addition, it based the conviction on the testimony of the anonymous witness, as any other evidence was not material, and deprived the accused of the right to question the witness and did not provide compensatory factors to offset this shortcoming.
The ECtHR found a violation of the right to a fair trial and non-examination of the prosecution witness (article 6 par. 1 and 6 par. 3d).
PROVISIONS
Article 6par 1
Article 6 par 1d
PRINCIPAL FACTS
The applicant, Hakan Süleyman, is a Turkish national who was born in 1981 and is serving a prison
sentence in Tekirdağ (Turkey).
The case concerned the unfairness of criminal proceedings on account of the applicant’s alleged
inability to question and confront the only eyewitness to a murder.
The applicant was convicted for firing weapons at the Black Sea Hotel near Trabzon in August 2005.
He was later charged with allegedly falsely imprisoning an international footballer in 2006, and of
shooting into the footballer’s wife’s shop and at the car of another footballer.
In January 2006 a receptionist at the same hotel was shot and killed. The key witness had been able
to see the perpetrator’s features when he turned into the light, later identifying him as the
applicant. Furthermore, initial ballistics evidence (later contradicted) confirmed the firearm used had
been that used in the shooting of August 2005. The applicant’s phone, however, had not made a call
that evening via the network mast that covered the area of the hotel.
The case was heard by the Erzurum Specially Authorised Assize Court. The applicant applied to have
the right to put questions to the witnesses, including the key witness, whose identity had been made
public in the meantime. The prosecutor argued that he should be treated as an “anonymous
witness”.
The trial court read out a transcript of the key witness’s testimony. Counsel for the applicant argued
that contradictions in the testimony vis-à-vis the official account, their inability to examine all the
witnesses, and shortcomings in the police-organised confrontation, infringed the applicant’s right to
a fair trial. The trial court decided to re-examine the witnesses in person, save for the key witness.
Some of those witnesses were examined before another court, the Trabzon Assize Court.
The applicant was convicted of murder. The court emphasised that the phone records, especially
given that the applicant’s phone had been turned off around the time of the crime, did not prove the
applicant had not been at the hotel. He was also convicted of a variety of serious and violent crimes,
including aggravated robbery. The murder conviction was upheld on appeal, but that for aggravated
robbery was eventually overturned.
Relying on Article 6 §§ 1 and 3 (d) (right to a fair trial and right to obtain attendance and examination
of witnesses) of the European Convention, the applicant complained that because he could not
question the only eyewitness in the case his right to a fair trial had been infringed.
THE DECISION OF THE COURT…
The Court notes at the outset that the trial court decided at the hearing held on 11 July 2006 that the witnesses and victims would be heard by the courts located in their places of residence, while at the same time holding that the anonymous witness X would be examined in accordance with Article 58 § 2 and 3 of the Criminal Code, that is to say by a court in his place of residence and in the absence of the parties while keeping his true identity secret. Thus, it appears that the trial court, by keeping the identity of the witness secret and by asking the Trabzon Assize Court to hear him in camera and in the absence of the parties, effectively combined the concepts of absent and anonymous witnesses in witness X (compare Scholer v. Germany no. 14212/10, § 52, 18 December 2014 in fine). While it is true that the identity of witness X was known, he was formally anonymous and the defence had no further details about him or his background, so that the Court considers that he may be regarded essentially as an anonymous witness.
Therefore, the Court will address the following issues respectively: (i) whether there was a good reason justifying the concealment of the anonymous witness’s identity; (ii) whether there was a good reason for his absence; (iii) whether the evidence given by him was the sole or decisive basis for the applicant’s conviction or it was of significant weight for it; and (iv) whether there were sufficient counterbalancing factors to compensate for the handicaps under which the defence laboured vis‑à‑vis the evidence given by witness X.
The Court observes that the trial court’s interlocutory decision on 11 July 2006 indicated that witness X would be examined on the basis of Article 58 § 2 and 3 of the Code of Criminal Procedure. In practice, that decision appears to have meant that the identity of the witness would be concealed (Article 58 § 2) and that he would give evidence in the absence of the parties via an audiovisual link in accordance with Article 58 § 3 (see, for a similar situation Papadakis v. the former Yugoslav Republic of Macedonia, no. 50254/07, § 90, 26 February 2013, and Dončev and Burgov v. the former Yugoslav Republic of Macedonia, no. 30265/09, § 51, 12 June 2014).
The Court notes that Article 58 § 2 of the Code of Criminal Procedure provided for the concealment of the true identity of the witness in cases where there was a “grave danger” to him or his next of kin. Nevertheless, when deciding to apply that provision at the first hearing, the trial court did not attempt to explain in any way, other than merely referring to the aforesaid legal provision, what constituted “grave danger” to the applicant or to his next-of-kin (see Balta and Demir v. Turkey no. 48628/12, § 46, 23 June 2015). Similarly, the Court observes that the president of the Trabzon Assize Court, who took evidence from witness X, also failed to explain – other than by stating that the witness had been examined on the basis of Article 58 § 2 and 3 of the Code of Criminal Procedure – the reasons on the basis of which he had deemed it necessary to keep his identity secret.
At this juncture, the Court notes that it has already held in cases against Turkey, albeit in the context of complaints related to Article 5 of the Convention, that the mere reproduction of the wording contained in the statutory provisions cannot be considered as sufficient reasoning to implement a protective measure which clearly lacked an individualised assessment taking account of the particular circumstances of a given case (see, among many other authorities, Şık v. Turkey, no. 53413/11, § 62, 8 July 2014). These considerations also hold true in the instant case in the light of the trial court’s failure to explain the existence of the prerequisite element enabling it to keep secret the identity of witness X under Article 58 § 2 of the Code of Criminal Procedure.
ii. Whether there was a good reason for the non-attendance of witness X at the trial
The Court reiterates that the trial court decided that witness X and all the other witnesses and victims should give evidence in courts located in their places of residence, finding that most of them lived in the province of Trabzon and that it would be difficult for them to attend the hearings before it, which were to take place in another city, namely Erzurum. As a result, witness X never attended the hearings before the trial court and gave his statements before the Trabzon Assize Court in the absence of the parties.
The Court reiterates that the Contracting States are required to take positive steps, in particular to enable the accused to examine or have examined witnesses against him (see Barberà, Messegué and Jabardo v. Spain, 6 December 1988, § 78, Series A no. 146). Such measures form part of the diligence which the Contracting States must exercise in order to ensure that the rights guaranteed by Article 6 are enjoyed in an effective manner (see Sadak and Others v. Turkey (no. 1), nos. 29900/96 and 3 others, § 67, ECHR 2001‑VIII).
In support of the trial court’s decision to examine him in Trabzon, the Government provided the Court with information as to the distance between Erzurum and Trabzon, which they submitted as being 268 km. They also added that the topography between the two cities was mountainous and so the roads tended to be of poor quality. The Court observes that that additional information given by the Government was not referred to by the trial court in its decision to examine witness X in Trabzon. Be that as it may, even assuming that it did refer to it, the Court considers that the distance between the two cities cannot be regarded of itself and in the abstract as a good reason for the failure by the judges to ensure the examination of the anonymous witness despite their ultimately convicting the applicant and sentencing him to life imprisonment (see, among many other authorities, Bátěk and Others v. the Czech Republic, no. 54146/09, § 44, 12 January 2017, and Nikolitsas v. Greece, no. 63117/09, § 35, 3 July 2014). Sight should also not be lost of the applicant’s argument that the territorial jurisdiction of the now defunct specially authorised courts – in the present case the Erzurum Specially Authorised Assize Court – was also determined having due regard, inter alia, to the geographical proximity between different cities in Turkey.
Furthermore, the Court notes that other individuals, who were also resident in Trabzon, were heard as witnesses or complainants before the trial court in person. That being the case, the absence of a good reason for the non-attendance of witness X at trial was imputable to the trial court, which did not appear to have considered taking any positive steps to secure his appearance before it so as to ensure his examination in person.
Therefore, the Court concludes that the Government have failed to show that the national courts set out the factual or legal basis of any good reason for the absence of witness X. Nonetheless and despite being imperative, the absence of a good reason for the non-attendance of a witness is not of itself dispositive of the wider consideration of whether the trial was fair as a whole.
iii. Whether the evidence of the absent witness was the sole or decisive basis for the applicant’s conviction
As to the extent to which the national courts relied on the evidence given by witness X when convicting the applicant, the Court observes that the trial court did not make any examination of the weight to be given the evidence given by witness X. The court has not shown that it was aware that that evidence carried less weight.
Therefore, the Court will carry out its own examination on this matter. In that connection, the Court notes that witness X was the only eyewitness to the shooting and that there was no other direct and concrete evidence capable of proving that it was the applicant who killed M.Ü. Importantly, the ballistics report on the bullet casing found at the scene of the incident concluded that it was not possible to verify whether that bullet had been fired from the applicant’s pistol used in previous incidents.
As for the mobile telephone records, the Court notes that the applicant’s mobile telephone received a signal at 2.30 a.m. from a base situated in Trabzon city centre, which is approximately 20 km from the crime scene. Considering that he could have gone from the hotel to the city centre within thirty minutes, the trial court concluded that the mobile telephone records had not shown that the applicant had not been at the scene of the incident at the time of shooting. In the Court’s view, that finding does not alter the decisive character of the evidence given by the anonymous witness X.
In short, the Court concludes that, even if it was not the sole reason, the evidence given by witness X was decisive for the applicant’s conviction for the murder of M.Ü.
iv. Whether there were sufficient counterbalancing factors to compensate for the handicaps under which the defence laboured
The Court emphasized that when, as in the present case, a conviction was firmly based on the testimony of a missing witness, the Court should submit the proceedings to the most thorough review.
In that regard, the Court initially noted that witness X. gave his first testimony, with his true identity, on 02.02.2006 before the Arsin prosecutor and identified the applicant on the basis of a photograph as the person who had fatally shot M.Ü. In addition, the Court considered it important that neither the court nor the Trabzon Assize Court assessed the question of whether less rigorous alternatives would suffice, which would indicate that they had indeed made a balancing act, albeit tacitly, between the rights of the defense and the rights of victims and witnesses.
In view of the above weaknesses, the Court cannot conclude that the necessary guarantees were given for the testimony given by Witness X, a situation which does not meet the requirements of a fair trial under Article 6 of the ECHR.
Despite this finding, the Court considered the Government’s allegations in this regard, which were as follows: (a) the accused had not exercised his legal right to submit written questions to Witness X after the court had read the file; of his testimony in the trial and (b) the applicant had not made use of the recorded testimony of witness X. which in addition allowed the court to form its own impression of his credibility.
In any event, considering that the applicant had suffered a particularly severe limitation on his ability to properly and fairly verify the credibility of Witness X’s testimony, hence being both “absent” and “anonymous” within the meaning of its case-law pursuant to Article 6 (3) (f) of the ECHR, and having regard to the indifferent attitude of the national courts towards this evidence, the lack of a reasonable reason for his non-participation in the trial, and the serious consequences for the accused ie the sentence of life imprisonment, the Court cannot conclude that the mere existence of a video recording of Witness X.’s testimony was sufficient to remedy the limitations imposed on the defense as to its ability to challenge this evidence, which was decisive in the applicant’s conviction, even given his failure Court of Cassation to address and correct the aforementioned disadvantage.
The above considerations therefore allow the Court to conclude that the applicant was not given adequate guarantees commensurate with the nature of his complaints and the significance at stake for him, namely the sentence of life imprisonment, which would allow him to be adequately reviewed. reliability and truth of the testimonies given by witness X. under the guarantees of a fair trial under Article 6 of the Convention.
Violation of Article 6 §§ 1 and 3 (d)
Just satisfaction: The applicant did not submit a claim for just satisfaction within the time-limit
allotted to him. Nevertheless, the Court reiterated that the most appropriate form of redress would
be a retrial in accordance with the requirements of Article 6 of the Convention, should the applicant
so request.
