SECOND SECTION

CASE OF KUVEYDAR v. TURKEY

(Application no. 12047/05)

JUDGMENT

STRASBOURG

19 December 2017

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Kuveydar v. Turkey,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
	Robert Spano, President,
	Julia Laffranque,
	Işıl Karakaş,
	Nebojša Vučinić,
	Paul Lemmens,
	Jon Fridrik Kjølbro,
	Stéphanie Mourou-Vikström, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having deliberated in private on 28 November 2017,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 12047/05) 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 Baykal Kuveydar (“the applicant”), on 18 March 2005.
2.  The applicant was represented by Mr S. Dursun, a lawyer practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent.
3.  The applicant alleged that he had not had a fair trial, in that the domestic court had refused his request to have witnesses on his behalf examined. He also complained about his alleged ill-treatment during his time in police custody, the court’s use of his police statements, which, according to him, had been taken under duress, and its reliance on evidence obtained through third persons’ telephone conversations.
4.  On 31 August 2010 the application was communicated to the Government.
THE FACTS
Article I.	THE CIRCUMSTANCES OF THE CASE
5.  The applicant was born in 1973 and is currently serving a prison sentence in Edirne.
6.  On 8 February 2001 a certain İ.Y. and his son M.Y., filed a complaint with the Bursa Public Prosecutor’s office, claiming that they had been threatened by members of a criminal organisation, including the applicant, who had acted under his boss, O.K., and that they had had to give them a substantial amount of money and property as a result.
7.  On 20 March 2001 the Public Prosecutor at the Istanbul State Security Court requested the Bursa Security Directorate to investigate the matter within the context of an investigation concerning a bigger criminal organisation.
8.  On 21 March 2001 police officers from the Bursa Security Directorate conducted a search at the applicant’s house, during which they found an unlicensed semi-automatic weapon. The applicant was immediately arrested after the search.
9.  Subsequently, he was taken to the Bursa Directorate of Forensic Medicine, where he was examined by a doctor who noted that there were no signs of ill-treatment on his body. He was placed in police custody on the same day.
10.  On 23 March 2001, following the extension of his police custody by two days, the applicant underwent another medical examination. The report drawn up after that examination noted the names of several persons who had also been arrested as part of the same investigation and indicated that no injury could be found on any of them.
11.  On 24 March 2001 the applicant gave his police statements. He described the course of the events in detail and stated that he and certain people that he worked with had visited İ.Y. and M.Y. at their homes several times in order to obtain money by threatening them.
12.  On 25 March 2001 the applicant’s police custody was extended and he was medically examined once again together with twenty-five others. The doctor who conducted the examination simply noted that there were no traces of ill-treatment on any of the persons he had examined. The day after, 26 March 2001, another doctor issued a report in respect of the same people, stating that none of them had any complaints and that he could find no signs of injury on their bodies.
13.  On 28 March 2001 the applicant went through a final medical examination before he was detained on remand. This time, a report specific to him was drawn up, stating that he had not put forward any physical or psychological complaints during the examination and that there was no indication of ill-treatment on his body. In his application form, the applicant maintained that the doctor had taken account of his submissions and examined his genitals, but had not been able to find any traces of the electric shocks administered to him.
14.  On the same day the applicant gave his statements before the Public Prosecutor at the Istanbul State Security Court. He reiterated his account of the events, but denied certain parts of his police statements, whereby he had admitted to being a member of a criminal organisation and having threatened İ.Y. He did not indicate anything with regard to his alleged ill‑treatment.
15.  On 21 June 2001 the Public Prosecutor filed an indictment with the Istanbul State Security Court, accusing the applicant of armed robbery, membership of a criminal organisation and illegally carrying weapons. After having explained in detail the composition and acts of a criminal organisation, the Public Prosecutor indicated that the applicant was a member of another organisation, which had threatened and extracted money from İ.Y., a member of the first one. In his recapitulation of the events, the Public Prosecutor mentioned a certain A.V.O., who he claimed to have been involved in the money transactions at issue and to have been threatened by that second criminal organisation. He requested the opening of criminal proceedings against a total of thirty-one people, accusing them of being members of two separate criminal organisations.
16.  On 13 September 2001, at the first hearing before the Istanbul State Security Court, İ.Y. stated in the absence of the applicant (who was unrepresented) that he had asked for help from the applicant’s boss, O.K., to sell some of his property in order to pay his debts and that he had paid him a certain amount in return. He claimed that after the transaction, the applicant had threatened him to obtain more money.
17.  At the second hearing, held on 6 December 2001, the applicant stated before the court that the indictment had not been served on him and that he had not fully understood the charges against him. After having described the events, he maintained that he and his boss had helped İ.Y. pay his debts and that he had just asked him to pay their share, without making any threats. He further retracted the previous statements he had made before the police and the Public Prosecutor. Finally, he argued that he had been subjected to ill-treatment while in police custody, without giving any details about his allegation.
18.  During the same hearing, M.Y. submitted that his father, İ.Y., had been threatened by the applicant. The applicant was not given an opportunity to comment on these submissions.
19.  On 9 April 2002 the Public Prosecutor submitted his written opinion to the Istanbul State Security Court. He stated that the telephones of two of the accused had been intercepted and that the conversations between them and with the applicant had revealed that the latter had threatened İ.Y. upon an order from O.K. In describing the events at issue, the Public Prosecutor once again maintained that A.V.O. had been involved in the transactions and had been threatened by fellow members of the applicant’s criminal organisation. He further indicated that the unfolding of the events had been corroborated by the statements of all of the accused, but that they had all denied having threatened İ.Y. and M.Y. Finally, relying on the telephone recordings and the statements of the other accused, the Public Prosecutor proposed that the applicant should be found guilty as charged.
20.  Subsequently, the applicant submitted his statements to the court, requesting the examination of two witnesses, A.V.O., who had been mentioned in the Public Prosecutor’s written opinion, and a certain İ.D.
21.  At the hearing on 3 September 2002 the Istanbul State Security Court rejected the request, finding that the examination of the witnesses called by the applicant would have no effect on the outcome of the proceedings. After making a summary of all of the defendants’ statements, the court found the applicant guilty as charged, and sentenced him to twenty years and ten months’ imprisonment and a judicial fine. In its reasoning, it stated that the applicant’s guilt had been established on the basis of an overall assessment of the evidence at its disposal, without specifying which particular evidence it relied on.
22.  The applicant appealed against the judgment, arguing that the court had failed to hear any witnesses on his behalf and that it had restricted his right to defend himself during the course of the proceedings, in that it had not taken account of any of his submissions.
23.  On 12 April 2004 the Court of Cassation upheld the judgment after holding a hearing, during which the applicant was not present.
24.  The applicant was not represented by a lawyer at any stage of the proceedings, including the appeal proceedings before the Court of Cassation.
25.  On 11 October 2004 a committal order concerning the execution of the applicant’s sentence was prepared. It was notified to the applicant by the prison administration on 13 October 2004.
THE LAW
Article II.	I.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
26.  The applicant complained under Article 3 of the Convention that he had been subjected to ill-treatment during his time in police custody. In that connection, he claimed that he had been blindfolded, beaten and subjected to Palestinian hanging and had received electric shocks to his genitals several times. He further alleged that the medical examinations had not been conducted diligently and that his complaints had not been taken into account by the domestic authorities.
27.  The Government submitted that the applicant had not exhausted the domestic remedies in that he had not brought a case before the administrative courts with regard to his allegations of ill-treatment. They further maintained that the applicant had failed to comply with the six‑month time-limit, arguing that he should have brought his complaint under Article 3 before the Court within six months after 28 March 2001, the day his police custody had ended. Finally, they contended that the applicant had failed to substantiate his allegations as none of the medical reports drawn up in his respect had indicated any signs of ill-treatment on his body, and that he had not raised his allegations before the domestic authorities at any point except for the hearing held on 6 December 2001.
28.  At the outset, with regard to the Government’s reference to the administrative remedy, the Court reiterates that in the area of unlawful use of force by State agents – and not mere fault, omission or negligence –, civil or administrative proceedings aimed solely at awarding damages, rather than ensuring the identification and punishment of those responsible, are not adequate and effective remedies capable of providing redress for complaints based on the substantive aspect of Articles 2 and 3 of the Convention (see Mocanu and Others v. Romania [GC], nos. 10865/09 and 2 others, § 227, ECHR 2014 (extracts), and Müftüoğlu and Others v. Turkey, nos. 34520/10 and 2 others, § 52, 28 February 2017).
29.  That being said, it considers that it is not necessary to examine further whether the applicant exhausted domestic remedies or complied with the six-month rule within the meaning of Article 35 § 1, since it considers in any event that this part of the application is inadmissible for the following reasons.
30.  The Court observes that during his time at police custody, the applicant underwent five medical examinations conducted by different doctors. None of the medical reports drawn up after those examinations indicated any signs of injury on the applicant. Although three of the reports were drafted for numerous people, the Court observes that the ones issued immediately before and on the last day of the applicant’s police custody concerned solely the applicant. In that respect, the Court has regard to the latter examination, during which the applicant submitted that the doctor had taken account of his allegations of having received electric shocks, but could not find any signs in support of those claims. It notes that the applicant has adduced no material which could call into question the findings in the medical reports and add probative weight to his allegations.
31.  The Court notes furthermore that the applicant did not raise the matter before the Public Prosecutor and did so only at the first hearing he attended before the Istanbul State Security Court, and without specifying his complaint. He did not bring his complaint before the domestic authorities at the subsequent stages of the proceedings either.
32.  Consequently, the Court finds that the applicant has failed to substantiate his allegations of ill-treatment. Moreover, in the absence of an “arguable claim” and any evidence on which to start an investigation about the applicant’s allegations, there is nothing to call into question the manner in which the domestic judicial authorities acted in that regard (see Soysal v. Turkey, no. 50091/99, § 52, 3 May 2007).
33.  It follows that the applicant’s complaint under Article 3 of the Convention is manifestly ill-founded pursuant to Article 35 § 3 and 4.
Article III.	II.  ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (d) OF THE CONVENTION
34.  The applicant complained that the criminal proceedings against him had been unfair because he had been deprived of an opportunity to prove his defence and had not been able to obtain the attendance of witnesses on his behalf under the same conditions as witnesses against him, as provided in Article 6 §§ 1 and 3 (d) of the Convention, which reads 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 ... .”
Section 3.01	A.  Admissibility
35.  The Government argued that the applicant had not complied with the six‑month time-limit in that he should have lodged the application with the Court within six months after 12 April 2004, the date on which the Court of Cassation rendered the final decision with regard to the applicant’s conviction.
36.  The Court observes that on 12 April 2004 the Court of Cassation held a hearing and upheld the judgment of the Istanbul State Security Court. The applicant was not present during the hearing. Nor was he represented by a lawyer.
37.  The Court reiterates that where an applicant is entitled to be served ex officio with a written copy of the final domestic decision, the object and purpose of Article 35 § 1 of the Convention are best served by counting the six‑month period as running from the date of service of the written judgment. The Court notes that, by virtue of Law no. 7201 on notifications, the prison administration is responsible for informing detainees of the outcome of their cases, particularly the final determination of any sentence of imprisonment. Consequently, taking into account that the applicant was not present at the hearing held by the Court of Cassation and did not benefit from any legal assistance during the course of the proceedings, the Court finds that the aim of Article 35 § 1 of the Convention is met by calculating the running of the six month period from 13 October 2004, the date on which he received the committal order. As the application was lodged on 18 March 2005, within six months following that date, the Court dismisses the Government’s objection under this head (see Töre v Turkey (dec.), no. 50744/99, 10 June 2004, and Karabulut v. Turkey, no. 56015/00, § 38, 24 January 2008).
38.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
Section 3.02	B.  Merits
39.  The applicant reiterated his complaint and submitted that his sentence could have been significantly reduced had the court heard the witnesses on his behalf, in that their statements would have proved that he had not committed armed robbery.
40.  The Government argued that there had been no violation of the applicant’s right to a fair trial in that the domestic court had evaluated the facts and evidence at its disposal in line with the domestic legislation and had respected the applicant’s defence rights at every stage of the proceedings. Referring to the Court’s Georgios Papageorgiou v. Greece judgment (no. 59506/00, ECHR 2003‑VI (extracts)), they indicated that it was for the national courts, and in particular the court of first instance, to assess the evidence before them as well as the relevance of the evidence which the accused sought to adduce.
41.  The Court reiterates that the right to call witnesses is not absolute and can be limited in the interests of the proper administration of justice. Article 6 § 3 (d) does not require the attendance and examination of every witness on the accused’s behalf. Its essential aim, as is indicated by the words “under the same conditions”, is full “equality of arms” in the matter. With this proviso, it leaves it to the competent national authorities to decide upon the relevance of proposed evidence, in so far as this is compatible with the concept of a fair trial, which dominates the whole of Article 6 (see Engel and Others v. the Netherlands, 8 June 1976, § 91, Series A no. 22; Polyakov v. Russia, no. 77018/01, § 31, 29 January 2009; and Gregačević v. Croatia, no. 58331/09, § 60, 10 July 2012).
42.  The Court notes that it is not sufficient for a defendant to ask for certain witnesses to be questioned; he must, in addition, support his request by explaining why it is important for the witnesses concerned to be heard and their evidence must be necessary for the establishment of the truth (see Perna v. Italy [GC], no. 48898/99, § 29, ECHR 2003‑V). Thus, when the applicant has made a request to hear witnesses which is not vexatious, and which is sufficiently reasoned, relevant to the subject matter of the accusation and could arguably have strengthened the position of the defence or even led to the applicant’s acquittal, the domestic authorities must provide relevant reasons for dismissing such a request (see Polyakov, cited above, §§ 34-35; Topić v. Croatia, no. 51355/10, § 42, 10 October 2013; and Poropat v. Slovenia, no. 21668/12, § 42, 9 May 2017).
43.  While it is true that the applicant did not request the examination of witnesses on his behalf until the last hearing held on 3 September 2002, asking the court to hear A.V.O. and İ.D. just before that date, the Court considers, in view of his inability to have access to the indictment mentioning the former (see paragraph 17 above), that he could only do so following the submission of the Public Prosecutor’s written opinion which described A.V.O.’s role in the events (see paragraph 19 above). It cannot therefore be claimed that the applicant’s request to have examined witnesses in his defence was vexatious or that he made no reasonable effort to obtain their attendance.
44.  The Court observes that the Istanbul State Security Court rejected the applicant’s request by merely stating that the examination of the witnesses called by the applicant would have no effect on the outcome of the proceedings, which cannot be considered a reasoned decision in itself (see Topić, cited above, § 47). Furthermore, the Court of Cassation did not address the applicant’s argument concerning the trial court’s refusal to call witnesses.
45.  The Court notes that it is not clear from the case-file whether the applicant adequately reasoned his request to have A.V.O. and İ.D. heard by explaining the relevance and importance of those witnesses for the assessment of the case against him. Nevertheless, it observes that the applicant was not represented by a lawyer at any stage of the proceedings, and hence, did not benefit from any legal assistance when he requested the attendance of the two witnesses in criminal proceedings where he faced serious charges and the risk of a heavy criminal penalty. In this connection, the Court finds it noteworthy that A.V.O.’s involvement in the events was considered sufficiently significant by the Public Prosecutor at the Istanbul State Security Court, who mentioned him in both the bill of indictment of 21 June 2001 and his written opinion of 9 April 2002 (see paragraphs 15 and 19 above). Having regard to the prosecution’s recognition of the relevance of that witness (see, mutatis mutandis, Pello v. Estonia, no. 11423/03, § 33, 12 April 2007, where the relevance of the evidence concerned for the establishment of the truth had been recognised both in the bill of indictment and by the County Court), the Court considers that the State Security Court should have evaluated the applicant’s request to have A.V.O. heard by addressing the potential effects of his testimony and should have given reasons for its exclusion. However, it failed to do so and simply rejected the applicant’s request by indicating that the examination of the witnesses called by him would have no effect on the outcome of the proceedings (see paragraph 21 above). The applicant’s arguments in that regard were not taken into account by the Court of Cassation either.
46.  Even though the Court cannot speculate as to what extent an examination of the two witnesses would have strengthened the position of the defence, it considers that the equality between the prosecution and the defence must prevail throughout the trial. The circumstances of the case thus required that the applicant be given an opportunity to examine or have examined one or more witnesses of his choice (see Vaturi v. France, no. 75699/01, § 58, 13 April 2006, and Băcanu and SC « R » S.A. v. Romania, no. 4411/04, § 81, 3 March 2009). The Court therefore concludes that the constraints affecting the rights of the defence in the present case were such that the applicant cannot be said to have received a fair trial.
47.  There has therefore been a violation of Article 6 §§ 1 and 3 (d) of the Convention.
Article IV.	III.  OTHER ALLEGED VIOLATIONS OF ARTICLE 6 OF THE CONVENTION
48.  The applicant further complained under Article 6 § 1 of the Convention that he had been denied a fair hearing in that the domestic court had taken into account unlawful evidence, gathered through other persons’ conversations, without there being a decision to intercept his telephone conversations. He also argued that his police statements had been taken under duress and that their use by the trial court in his conviction violated his right to a fair trial.
49.  Having regard to its finding of a violation under Article 6 §§ 1 and 6 (d) of the Convention (see paragraph 47 above), the Court considers that there is no need to make a separate ruling on the admissibility and merits of the applicant’s remaining complaints with regard to the fairness of the proceedings (see Sadak and Others v. Turkey (no. 1), nos. 29900/96 and 3 others, § 69, ECHR 2001‑VIII, and Abdulgafur Batmaz v. Turkey, no. 44023/09, § 54, 24 May 2016).
Article V.	IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
50.  Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
Section 5.01	A.  Damage
51.  The applicant claimed 148,900 euros (EUR) in respect of pecuniary damage and EUR 75,000 in respect of non-pecuniary damage.
52.  The Government contested these claims, considering the requested amounts unsubstantiated and excessive.
53.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it considers that the applicant must have suffered pain and distress which cannot be compensated solely by the Court’s finding of a violation. Ruling on an equitable basis, it awards him EUR 1,500 in respect of non‑pecuniary damage (see Balta and Demir v. Turkey, no. 48628/12, § 69, 23 June 2015).
54.  The Court further notes that Article 311 of the Code of Criminal Procedure allows for the reopening of the domestic proceedings in the event that the Court finds a violation of the Convention (see Balta and Demir, cited above, § 70).
Section 5.02	B.  Costs and expenses
55.  The applicant also claimed EUR 3,000 for the costs and expenses and EUR 8,000 for his lawyer’s fee.
56.  The Government contested these amounts and submitted that the applicant had failed to support his claims with documentary evidence.
57.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, the applicant did not submit any contracts, receipts or other vouchers on the basis of which a specific amount could be established. Accordingly, the Court does not make any award under this head.
Section 5.03	C.  Default interest
58.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1.  Declares the complaint under Article 6 §§ 1 and 3 (d) of the Convention admissible and the complaint under Article 3 of the Convention inadmissible;

2.  Holds that there has been a violation of Article 6 §§ 1 and 3 (d) of the Convention;

3.  Holds that there is no need to examine the other complaints under Article 6 of the Convention;

4.  Holds
(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into Turkish liras at the rate applicable at the date of settlement;
(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5.  Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 19 December 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Hasan Bakırcı	Robert Spano
	Deputy Registrar	President