AS TO THE ADMISSIBILITY OF
by Nizamettin BAYBASIN
European Court of Human Rights (Fifth Section), sitting on
3 February 2009 as a Chamber composed of:
Peer Lorenzen, President,
Zdravka Kalaydjieva, judges,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 12 October 2005,
Having deliberated, decides as follows:
The applicant, Mr Nizamettin Baybasin, is a Turkish national who was born in 1963 and lives in Aachen. He was represented before the Court by Mr E. Altun, a lawyer practising in Braunschweig.
The facts of the case, as submitted by the applicant, may be summarised as follows.
A. The circumstances of the case
1. Proceedings resulting in the applicant’s conviction
On 20 March 1998 the applicant was arrested in Germany on the suspicion of drug trafficking in substantial quantities.
On 6 May 1998 several persons involved in the drug trafficking, one of whom was witness C., were caught with 85 kg of heroin in Turkey and subsequently detained. During C.’s interview by Turkish police officers on 10 May 1998 he incriminated inter alia the applicant giving detailed information about the applicant’s participation in their drug-dealing activities. During a further interview on 13 May 1998 C. submitted that he “would not accept the statements” of his previous interview, that he “had been under pressure” and that “he had not made those statements”.
On 4 November 1999 the Bonn Regional Court decided to open the trial against the applicant.
In early June and December 2000, following a request of the Bonn Regional Court, a judge of the Istanbul State Security Court interviewed (kommissarische Vernehmung) inter alia C., the police officers who had arrested the applicant and three of the four police officers who had conducted C.’s interview on 10 May 1998. The interviews of C. and the police officers were held in the presence of the judges of the Bonn Regional Court sitting in the applicant’s case, the Bonn Public Prosecutor and the applicant’s defence who had the possibility to ask questions of the witnesses. During his interview C. alleged that the police officers had tortured him to extract the statements given by him on 10 May 1998. Furthermore he specified some symptoms which had been the result of his alleged ill-treatment. Subsequently, the judge of the State Security Court decided to reject all further questions concerning the alleged torture as they would not have any influence on the judgment.
the meantime, C. had instituted criminal proceedings against the
police officers on the grounds of his alleged ill-treatment.
On 26 October 2001 the Istanbul Criminal Court acquitted the police officers of the charges against them as there had been no credible evidence on the basis of which they could have been convicted.
Between 27 March 2000 and 10 May 2002 the Bonn Regional Court held 103 hearings in which the applicant was represented by several lawyers. Between 1 March 2001 and 9 April 2001 the Regional Court repeatedly and unsuccessfully tried to summon C. to the hearings and offered to examine him via video conference, but C. rejected that offer. Therefore the Regional Court read out parts of the written records of C.’s statements made during the trial against the police officers before the Istanbul State Security Court. Furthermore it read out the written records of C.’s interview by the police officers in May 1998 and of the interview of the police officers by the Istanbul State Security Court in June and December 2000.
On 10 May 2002 the Bonn Regional Court convicted the applicant of eight counts of importing and trafficking a substantial amount of drugs (between 80 and 90 kg of heroin each time) and passed a cumulative sentence of 15 years’ imprisonment. Furthermore it ordered the applicant’s preventive detention after the sentence had expired.
court found that the applicant had planned and organised the first
five deliveries of heroin and conducted the heroin business himself
as of the sixth delivery. The court set out the reasons for his
conviction on 240 pages, thereby relying inter alia on the records of
C.’s interview of 10 May 1998 and on the oral and written
submissions of the police officers who had interviewed C. It found
that C.’s submissions given during his first interview had been
credible. The very general revocation of his first statement however
as well as the fact that the other persons who had been arrested
together with C. likewise revoked their submissions – on some
occasions even with the same wording – and that their
submissions converged more and more during the proceedings strongly
suggested that they had colluded in relation to their testimonies as
to the alleged
ill-treatment. C.’s submissions and the statements of his accomplices were highly contradictory as to his alleged torture and the symptoms he had alluded to. Furthermore, it could not be proved from the judgment of the Istanbul Criminal Court, from the statements of C., the police officers before that court or the various medical reports that C. had in fact been
ill-treated. Contrary to the applicant’s submissions and according to reports of Amnesty International and of the German Ministry of Foreign Affairs there is also no general assumption that Turkish police officers usually administer torture during their investigations. The Regional Court added that, “in this specific case, the police officers had not had a reason to ill-treat C. as they had already been granted a bonus for having seized the drugs. They thus would not have received any other financial advantage for obtaining further information from C. or his accomplices”.
The court, being aware that a large part of the evidence was in fact indirect evidence, further found that the statements of C. and the police officers who had conducted his investigation had been confirmed inter alia by the submissions of witnesses whom the applicant had been able to examine, the content of the applicant’s and other witnesses’ telephone conversations, the flow of money which had resulted from the drug activities and which the applicant had carried out and, finally, by his own submissions which he had modified during trial and adapted according to the respective findings of the court.
On 27 February 2004 the Federal Court of Justice reduced the conviction to five counts but upheld the sentence. It found that there had been no violation of the applicant’s right to question the witness as guaranteed by Article 6 §§ 1 and 3 (d) of the Convention. Thus, the applicant’s lawyers had been able to question C. during his interview in June 2000 where the latter had submitted that he had been subject to torture alluding to several symptoms in this regard. Further relevant new findings in this respect – a matter which the applicant did not contest – would not have been a realistic possibility. Moreover, the Regional Court had read out C.’s submissions made during the trial against the police officers, the judgment of the Istanbul Criminal Court and the findings concerning C.’s forensic examination. Furthermore, the Regional Court had intensively but unsuccessfully tried to interview C. during one of its oral hearings, but C. had declined the Regional Court’s offer to hear him via a video conference or to appear personally at the hearing. Finally, the Regional Court had based its findings not only on C.’s submissions, but on the testimony of numerous other witnesses and other means of evidence.
On 5 April 2005 the Federal Constitutional Court refused to admit the applicant’s constitutional complaint arguing that the courts had based their findings on different corroborating evidence. In so far as one item of evidence alone was insufficient to establish that the applicant had committed the crime, the trial court had drawn its conclusions in a comprehensive and consistent manner from the entirety of the evidence at its disposal. Furthermore, the trial court had elaborated extensively on the question as to whether C.’s testimony could be used as evidence and had examined the credibility of C.’s submissions concerning his alleged torture. Finally, the defence had had the possibility to question C. during his interview before the Istanbul State Security Court. The fact that single questions had not been admitted was not open to objection as it was the procedural law of the state where the interview had taken place which decided on how to conduct the latter.
2. Further proceedings
On 26 April 2006 the Bonn Public Prosecutor’s Office rejected the motion of the applicant’s lawyer to be granted access to the case files relating to proceedings concerning the forfeiture (Einziehung) of the applicant’s assets.
B. Relevant domestic law and practice
1. Prohibited methods of examination
Section 69 § 3 of the Code of Criminal Procedure read in conjunction with section 136a of the Code of Criminal Procedure prohibits methods of examination which impair the witness’s freedom to determine and to exercise his or her will, such as ill-treatment, induced fatigue, physical interference, the administration of drugs, torment, deception, hypnosis or coercion and the threat of such measures. Statements obtained in violation of this prohibition may not be used, even if the witness has given his or her consent.
2. Examination of witnesses and reading out of records
Pursuant to the provisions of the Code of Criminal Procedure, a witness shall be examined in person at the main hearing if the proof of a fact in issue is based on that person’s observation. In principle, the witness’s examination may not be replaced by reading out the record of a previous examination or by reading out a written statement (Section 250 of the said Code). According to the constant case-law of the Federal Court of Justice, Section 250 permits the hearing of witnesses giving hearsay evidence.
As an exception to the above-mentioned principle, the examination of a witness or co-accused may be replaced by reading out the written record of his previous examination by a judge. This is permitted if there are insurmountable impediments preventing the witness or co-accused from attending the main hearing for a long or indefinite period of time (Section 251 no. 2 of the said Code).
3. Right to be present at a hearing
The public prosecutor, the defendant and defence counsel have the right to be present at the examination of a witness by a judge outside the main hearing (Section 168c § 2 of the Code of Criminal Procedure). A defendant who is detained and is represented by counsel is only entitled to be present at hearings of witnesses conducted at the court of the place where he is in custody (Section 168c § 4 of the said Code).
“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;
The Court notes that the case raises issues under Article 6 §
3 (d), laying down specific rights of the defence in criminal
proceedings, as well as under Article 6 § 1,
guaranteeing the right to a fair trial. It observes that the
guarantees in paragraph 3 of Article 6 are particular
aspects of the right to a fair trial set out in paragraph 1
(see, inter alia, Poitrimol v. France,
judgment of 23 November 1993, Series A no. 277, p. 13,
§ 29; Rowe and Davis v. the United Kingdom [GC],
no. 28901/95, § 59, ECHR 2000-II).
It will, therefore, examine the complaints under both provisions taken together.
It observes at the outset that the use of evidence obtained in violation of Article 3 in criminal proceedings raises in itself serious issues as to the fairness of such proceedings, even if the admission of such evidence was not decisive in securing the conviction. In particular, incriminating evidence obtained as a result of torture should never be relied on as proof of the victim’s guilt, irrespective of its probative value (Jalloh v. Germany [GC], no. 54810/00, § 99 and 105, ECHR 2006 ...; Göçmen v. Turkey, no. 72000/01, § 74, 17 October 2006; and Harutyunyan v. Armenia, no. 36549/03, § 63, ECHR 2007 ...).
to the facts of the present case, the Court observes that according
to the Regional Court’s findings it could not be established
that witness C. had been tortured, threatened or otherwise unduly
forced to make his statements. Firstly, the Regional Court based its
findings on a comprehensive assessment of the credibility of witness
C. referring to his highly contradictory statements and those of the
co-accused and the fact that their submissions had become more and
more aligned throughout the proceedings when being questioned about
C.’s symptoms of alleged
ill-treatment. Secondly, the Regional Court relied on the statements of the Turkish police officers, on the forensic examination of C. during the criminal proceedings against the latter before the Istanbul Criminal Court and on the fact that the police officers had been acquitted of the charges against them. Finally, the Regional Court had also had regard to reports of the German Ministry of Foreign Affairs and of Amnesty International as to torture practices of police officers during investigations in Turkey and found that in the instant case, the police officers had not even had a reason to force C. to extract further evidence.
Court therefore considers that the domestic courts have advanced
convincing reasons for their findings that witness C. had not been
tortured and that his witness evidence had not been obtained as a
ill-treatment or torture.
It must further establish whether the use of C.’s statements and the submissions made by the police officers during their examination before the Istanbul State Security Court amounted to a violation of the applicant’s right to a fair trial.
In this connection the Court first notes that during the proceedings before the Federal Court of Justice the applicant failed to complain about his inability to cross-examine the police officers.
However, even assuming that the applicant exhausted the domestic remedies in this respect, the Court reiterates that the admissibility of evidence is primarily a matter for regulation by national law and that, as a rule, it is for the national courts to assess the evidence before them, the task of the Court being to ascertain whether the proceedings considered as a whole, including the way in which evidence was taken, were fair (see, for example, Ferrantelli and Santangelo v. Italy, judgment of 7 August 1996, Reports 1996-III, § 51).
addition, all evidence must normally be produced in the presence of
the accused at a public hearing with a view to adversarial argument.
This does not mean, however, that the statement of a witness must always be made in court and in public if it is to be admitted in evidence; in particular, this may prove impossible in certain cases. Thus, the use of statements obtained at earlier stages of proceedings is not in itself inconsistent with paragraphs 3 (d) and 1 of Article 6 of the Convention, provided that the rights of the defence have been respected (see Asch v. Austria, judgment of 26 April 1991, Series A no. 203, § 27, and Solakov v. the former Yugoslav Republic of Macedonia, no. 47023/99, § 57, ECHR 2001 X).
where a conviction is based solely or to a decisive degree on
statements that have been made by a person whom the accused has had
no opportunity to examine or to have examined, whether during the
investigation or at the trial, the rights of the defence are
restricted to an extent that is incompatible with the guarantees
provided by Article 6
(see, among many others, Lucà v. Italy, no. 33354/96, § 40, ECHR 2001 II; and Solakov, cited above, § 57; and Vladimir Romanov v. Russia,
no. 41461/02, § 100, 24 July 2008).
As to the restriction of the applicant’s right to question witness C., the Court observes that during C.’s interview before the Istanbul State Security Court the applicant’s lawyer asked him about his allegation that he had been tortured and about the respective symptoms he allegedly had developed thereafter. The answers to those questions were recorded in the transcript of C.’s interview and read out during the applicant’s trial. Thus, the Regional Court had regard to C.’s allegations but, for the reasons established above, it did not consider them to be credible. Finally, the applicant did not even contend during the domestic proceedings that further questions regarding C.’s alleged torture would have led to relevant new findings.
The Court further observes that the Regional Court’s several attempts to obtain C.’s attendance at trial failed because he refused to appear at the hearing and because he had not wished to be examined via a video conference.
As to the applicant’s allegation that he had had no possibility to cross-examine the police officers who had conducted C.’s interview, the Court observes that the applicant did in fact have the possibility to do so and challenged three of the four police officers during the interview before the Istanbul State Security Court.
The Court further notes that the domestic courts, being aware of the requirement under Article 6 §§ 1 and 3 (d) of the Convention to treat indirect evidence very cautiously, carefully elaborated on the credibility of C. and the police officers and found that the indirect evidence was corroborated by substantial direct evidence. In particular, the Regional Court relied on the evidence of witnesses whom the applicant had been able to question and on further evidence, such as telephone conversations, the applicant’s own conduct, his alternating statements during trial and the flow of money administered by him and made a thorough and careful analysis of the various direct and indirect items of evidence at its disposal.
In these circumstances, the Court is satisfied that the rights of the defence were not restricted to an extent that is incompatible with the guarantees provided by Article 6.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
The Court observes that, pursuant to Article 35 § 1 of the Convention, it may only deal with a matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law.
In the present case, the applicant failed to avail himself of any court.
follows that this complaint must be rejected under Article 35
§§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
For these reasons, the Court by a majority
Declares the application inadmissible.
Claudia Westerdiek Peer Lorenzen Registrar President