I correctly predicted that there was a violation of human rights in ÖZGÜÇ v. TURKEY.

Judgment

SECOND SECTION

CASE OF ÖZGÜÇ v. TURKEY
(Application no. 3094/09)

JUDGMENT

STRASBOURG
4 February 2020

This judgment is final but it may be subject to editorial revision. In the case of Özgüç v. Turkey,
The European Court of Human Rights (Second Section), sitting as a Committee composed of:
Valeriu Griţco, President,Arnfinn Bårdsen,Peeter Roosma, judges,and Hasan Bakırcı, Deputy Section Registrar,
Having deliberated in private on 14 January 2020,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 3094/09) 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, Ms Kadriye Özgüç (“the applicant”), on 7 January 2009. 2. The applicant was represented by Mr M. Erbil, a lawyer practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent. 3. On 19 November 2013 the Government were given notice of the complaint under Article 5 § 4 of the Convention about the non-communication of the public prosecutor’s written opinion to the applicant during the review proceedings of 18 June 2008 concerning her continued detention, as well as that under Article 6 §§ 1 and 3 (d) about the domestic court’s use of the statements made by an anonymous witness. The complaints under Articles 5 § 3 and 6 § 1 of the Convention concerning the length of the applicant’s continued detention and the criminal proceedings against her, as well as those under Article 5 § 4 of the Convention about the review proceedings of 24 March 2008 and the lack of a hearing during the review proceedings of 18 June 2008 were declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. THE FACTS
4. The applicant was born in 1985 and is detained in Kocaeli. 5. On 15 February 2007 a demonstration was held in Istanbul to protest the tenth anniversary of the arrest of Abdullah Öcalan, the leader of the PKK (the Workers’ Party of Kurdistan), an illegal organisation. During the demonstration, a bus got damaged. The report drawn up the same day noted that the windows of the bus had been broken by the stones and the Molotov cocktails thrown at it, and that there was broken glass in the bus due to the explosion. 6. The day after the demonstration, on 16 February 2007, an informant told the police that he had known two of the people who had taken part in the demonstration. He identified the applicant and a certain S.S. from the photographs shown to him by the police and noted that he had seen both of them throwing Molotov cocktails at a bus. 7. On 19 February 2007 a person, whose identity was kept confidential, made submissions to the police. He stated that he occasionally went to the local office of the DTP (Party for a Democratic Society) and had recognised the applicant, whom he had known by the name Kader, and S.S. when he had seen them at the demonstration held on 15 February 2007. He maintained that the two had held Molotov cocktails, which they had eventually thrown at the bus, and that the applicant had led the group of people involved in that event. On 5 March 2007 the same witness repeated his previous statements before the public prosecutor, noting that he had been the one who had initially informed the police about these two people. He also noted that the applicant and S.S., whom he had known from his neighbourhood and who were part of DTP’s youth branch, had asked him to join the demonstration. 8. On 8 March 2007 the applicant was arrested on suspicion of having organised an illegal demonstration and having caused damage to public property by throwing Molotov cocktails. 9. On 10 March 2007 the applicant was questioned by the Istanbul public prosecutor. She maintained that she had indeed taken part in the demonstration, however; denied any involvement in the subsequent events. She also challenged the statements of the anonymous witness. 10. On 10 March 2007 her statements were taken by the Istanbul Assize Court. During the hearing, the applicant and her co-accused, S.S., were read out their previous statements, as well as the statements given to the police by the anonymous witness. On the same day the applicant was placed in detention on remand. 11. On 26 March 2007 the Istanbul public prosecutor filed an indictment with the Assize Court, accusing the applicant of membership of an illegal organisation, namely the PKK. The applicant was also charged with two counts of possessing explosives, causing damage to public property, and contravening the Meetings and Demonstration Marches Act (Law no. 2911), in relation to her acts during the demonstrations held on 22 January 2006 and 15 February 2007, respectively. 12. At a hearing held on 4 July 2007 the applicant’s lawyer argued that the applicant was being charged solely on the basis of the statements made by the anonymous witness, which, according to him, was contrary to the principle of equality of arms. He requested the trial court to call the driver of the bus that got damaged on 15 February 2007 as a witness. The court granted that request. 13. During the hearing held on 31 October 2007 the Assize Court heard four witnesses, comprising three police officers and the bus driver concerned. The police officers stated that the anonymous witness had identified the applicant and S.S. from the photographs of the demonstrations. The bus driver noted that on the day of the events, several people had thrown stones at the bus, as a result of which its windows had got broken. He stated, however, that he could not identify any of the persons involved. At the same hearing the applicant reiterated her statements before the public prosecutor. Her lawyer requested that the anonymous witness be heard in order for the applicant to cross-examine him. The court rejected that request. 14. At the next hearing held on 7 March 2008 the applicant’s lawyer challenged the accuracy of the anonymous witness’ statements again, arguing that the statements of the bus driver had refuted them. 15. On 16 May 2008 a certain R.S., described by the domestic authorities as a member of the PKK, made certain submissions to the police, stating the he knew the applicant as Kader and that she organised and actively took place in the illegal demonstrations held in support of the illegal organisation. He identified the applicant from the photographs shown to him by the police. 16. At a hearing held on 13 June 2008 the applicant’s lawyer stated that the applicant had attended the demonstration but that there was no evidence regarding her involvement in the ensuing events, except for the statements of the anonymous witness. At the end of the hearing the Assize Court decided to hear the anonymous witness. The trial court noted that in the absence of the technical system foreseen under Article 58 of the Code of Criminal Procedure (Law no. 5271), and in view of the anonymous witness’ concerns about his security, it would hear him during a closed hearing to be held on an unspecified date. In that connection, the Assize Court invited the applicant and her co-accused to inform the court, within ten days, of the questions they would like to put to the anonymous witness, taking into account that the accused already knew the content of his previous statements. The applicant did not submit any questions. 17. On 2 September 2008 the Assize Court heard the anonymous witness. The trial court noted that after having had the witness sworn in, it put the information regarding the witness in a sealed envelope to be kept at the safe of the courthouse. The witness stated that he was acquainted with the applicant and S.S. from his visits to the DTP’s local office. He maintained that when he had approached the group, who had been carrying out a demonstration on 15 February 2007, he had seen the applicant, whom he knew as Kader, and S.S. with their faces covered and with Molotov cocktails in their hands. He added that several people from the crowd, who had been led by the applicant, had thrown stones and Molotov cocktails at the bus. However, the bus had not got burned and only had had its windows broken. He noted that he had called the police when the group had dispersed. The witness also identified the applicant and S.S. in the photographs shown to him. In response to the seven questions prepared by S.S., put to the witness by the trial court, the witness responded, inter alia, that he wanted to keep his identity confidential for personal security reasons and that he had given his statements of his free will. He stated that the applicant and S.S. had covered only their mouths and noses with scarfs and that he could easily identify them as he knew them. The witness added that he thought he had noticed some other people he had been acquainted with but he could not identify them with certainty, as they had been further away. The public prosecutor did not put any questions to the witness. 18. At the subsequent hearing on 12 November 2008 the statements of the anonymous witness were read out. The applicant and her lawyer contested those statements and their use by the trial court, arguing that the witness had made contradictory submissions and that they could not put questions to him as he had not been heard in their presence. 19. On 12 June 2009 the Istanbul Assize Court found the applicant guilty of membership of the PKK and causing damage to public property by using explosives during the events of both 22 January 2006 and 15 February 2007. The domestic court sentenced her to seven years and six months’ imprisonment under Article 174(1) and (2) of the Criminal Code (Law no. 5237) for two counts of possessing explosives in relation to the activities of an illegal organisation, and five years’ imprisonment under Article 152(1)(a) for two counts of causing damage to public property. Lastly, it sentenced the applicant to six years and three months’ imprisonment on account of membership of an illegal organisation under Article 314(2) of Law no. 5237. 20. In finding the applicant guilty of the charges in relation to the demonstration held on 15 February 2007, the Assize Court relied on the scene-of-incident report regarding the events of that day (olay yeri görgü tespit tutanağı); the statements of the anonymous witness which it found to be consistent at all stages of the proceedings; the statements of R.S. identifying the applicant; the statements of the police officers and those of the bus driver. In response to the applicant’s arguments regarding the alleged contradiction between the statements of the anonymous witness and those of the bus driver, who had mentioned that stones had been thrown at the bus, the domestic court referred to the scene-of-incident report, which noted that a Molotov cocktail had exploded inside the bus, breaking its windows. It then found that the bus driver might not have noticed the Molotov cocktail in the heat of the events. As for the events of 22 January 2006, the Assize Court relied on the statements of R.S. and the reports held by the police. Lastly, in view of its previous findings, the court went on to sentence the applicant of being a member of the PKK. 21. On 25 September 2009 the applicant appealed against the judgment, arguing mainly that the Assize Court must have provided audio and video transmission while the anonymous witness made statements, as provided by Article 58 of the Code of Criminal Procedure. She contended that putting questions to the anonymous witness prior to giving oral evidence did not constitute a safeguard that could substitute the guarantees provided by the cross-examination of the witness. Lastly, she stated that the anonymous witness had made contradictory submissions. 22. On 10 May 2011 the Court of Cassation upheld the judgment in so far as it concerned the applicant’s conviction of membership of an illegal organisation and possessing explosives on 15 February 2007. It upheld the sentence regarding the damage caused to public property by Molotov cocktails on that day with an amendment, reducing the sentence from imprisonment of two years and six months to one year and three months, as the bus had not got burned. The appellate court quashed the sentence regarding the events of 22 January 2006, finding that there had not been sufficient evidence to prove that the applicant had possessed explosives or caused damage to public property on that day. 23. On 14 July 2011 three committal orders were issued by the public prosecutor’s office concerning the execution of the applicant’s sentence, which noted that she was sentenced to a total of eleven years and three months’ imprisonment. 24. On 7 October 2011 the Istanbul Assize Court acquitted the applicant of the charges related to the demonstration held on 22 January 2006. 25. At the end of each hearing, the Istanbul Assize Court considered the applicant’s pre-trial detention and ordered her continued detention pending trial, having regard to the nature of the offence with which she was charged, the existence of a strong suspicion that she had committed the offence and the state of the evidence. The court also examined the lawfulness of the detention between the hearings, of its own motion, on 25 September 2007, 10 February 2008, 7 April 2008, and 11 August 2008, respectively. In so doing, it did not hear either the applicant or her lawyer, but decided in the presence of the public prosecutor, after having examined his written opinions. 26. On two occasions the applicant objected to the Assize Court’s decisions regarding the applicant’s continued detention, which were given at the end of the hearings dated 7 March 2008 and 13 June 2008. In filing her objections, the applicant requested to have a copy of the public prosecutor’s written opinion served on her. On 24 March 2008 and 18 June 2008, respectively, the Assize Court rejected the applicant’s objections on the basis of the grounds it had relied on previously. It examined the objections on the basis of the case-file and in the light of the public prosecutor’s written opinions, which were not served on the applicant or her lawyer. 27. A description of the relevant domestic law and practice regarding pre-trial detention can be found in Altınok v. Turkey (no. 31610/08, §§ 28‐32, 29 November 2011) and Ruşen Bayar v. Turkey (no. 25253/08, §§ 48-52, 19 February 2019). 28. A description of the provisions on witness protection and the use of anonymous witnesses can be found in Balta and Demir v. Turkey (no. 48628/12, §§ 24-5, 23 June 2015). THE LAW
29. The applicant complained that the proceedings reviewing his pre‐trial detention had not complied with the requirements of Article 5 § 4 of the Convention, which reads as follows:
“4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”
30. The Government contested that argument, stating that the applicant had not suffered any significant disadvantage within the meaning of Article 35 § 3 (b) of the Convention, as the public prosecutor’s written opinion merely proposed the rejection of the applicant’s objection and had not had a substantial bearing on the domestic court’s decision. They also noted that the systemic problem about the non-communication of the public prosecutors’ written opinions had been resolved by an amendment made in the Code of Criminal Procedure with the entry into force of Law no. 6459. 31. The Court reiterates that Article 5 § 4 applies to the proceedings before a court following the lodging of an objection against a decision extending a person’s detention (see Altınok, cited above, § 39‐40). 32. That being the case, Article 5 § 4 is not applicable to the Istanbul Assize Court’s decisions dated 25 September 2007, 10 February 2008, 7 April 2008, and 11 August 2008, by which it reviewed the applicant’s pre‐trial detention of its own motion and without holding a hearing (see Altınok, cited above, § 40, and Ruşen Bayar v. Turkey, no. 25253/08, § 64, 19 February 2019). 33. It follows that that part of the complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4. 34. As a result, the Court’s examination under Article 5 § 4 of the Convention is confined to the decision of 18 June 2008. In that connection, it notes that the complaint regarding the Assize Court’s review of 24 March 2008 was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court (see paragraph 3 above). 35. As regards the Government’s objection about the lack of any significant disadvantage, the Court reiterates that it has already examined and rejected a similar objection on the same issue (see Hebat Aslan and Firas Aslan v. Turkey, no. 15048/09, §§ 68-83, 28 October 2014). It finds no particular circumstances in the instant case which would require it to depart from its findings. 36. The Court notes that this part of the 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. 37. The applicant complained that the Istanbul Assize Court’s review of her objection to her pre-trial detention on 18 June 2008 had not complied with the requirements of Article 5 § 4 of the Convention, as the court had failed to transmit the public prosecutor’s written opinion to her. 38. The Government did not make any submissions regarding the merits of the complaint. 39. The Court notes that the present case raises issues similar to the case of Altınok, where it found a violation of Article 5 § 4 of the Convention on account of the domestic court’s failure to provide the applicant with the public prosecutor’s written opinion, which it relied on during the review proceedings regarding the applicant’s continued detention (cited above, §§ 57-61). The Court sees no reason to depart from that finding in the present case. It thus finds that the procedure whereby the applicant’s objection to her detention was examined by the Istanbul Assize Court on 18 June 2008 was not adversarial and did not respect the principle of equality of arms, as the domestic court failed to serve the public prosecutor’s opinion on the applicant, depriving her of the opportunity to comment on them (see Hebat Aslan and Firas Aslan, cited above, §§ 84-8, and Stollenwerk v. Germany, no. 8844/12, §§ 40-5, 7 September 2017). 40. There has accordingly been a violation of Article 5 § 4 of the Convention. 41. The applicant complained that the criminal proceedings against her had been unfair as she could not cross-examine the witness, whose identity had been kept confidential by the trial court. She relied on Article 6 §§ 1 and 3 (d) of the Convention, the relevant parts of which read 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; ...”
42. The Government argued that unlike her co-accused, the applicant had failed to make use of the procedural safeguard provided by the Istanbul Assize Court, namely, the possibility for her to provide the court with written questions to be put to the anonymous witness, despite the fact that the trial court specified that it had lacked the technical system for audio and video transmission. Notwithstanding the applicant’s failure to put questions to the witness, the statements had been read out to her at the subsequent hearing and she had been able to challenge them. Lastly, the Government contended that the statements of the anonymous witness had not been the sole basis for the applicant’s conviction. 43. The Court reiterates that neither the letter nor the spirit of Article 6 of the Convention prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to the guarantees of a fair trial. However, if it is to be effective for Convention purposes, such a waiver must be established in an unequivocal manner and be attended by minimum safeguards commensurate with its importance. A waiver need not be explicit, but it must be voluntary and constitute a knowing and intelligent relinquishment of a right. Before an accused can be said to have implicitly, through his conduct, waived an important right under Article 6, it must be shown that he could reasonably have foreseen what the consequences of his conduct would be. Moreover, the waiver must not run counter to any important public interest (see Simeonovi v. Bulgaria [GC], no. 21980/04, § 115, 12 May 2017 with further references, and Murtazaliyeva v. Russia [GC], no. 36658/05, § 117, 18 December 2018). 44. It follows that a waiver of the right to examine a witness, a fundamental right among those listed in Article 6 § 3 which constitute the notion of a fair trial, must be strictly compliant with the above requirements (see Murtazaliyeva, cited above, § 118). 45. In the present case, the Court observes that following the applicant’s second request to have the anonymous witness heard, the Istanbul Assize Court decided to take the statements of that witness in a closed hearing. Pointing out that it lacked the technical means to provide the audio and video transmission of the questioning, it gave the applicant and her co‐accused ten days to submit the questions they wanted the court to put to the witness. The applicant made no such submission (compare Poletan and Azirovik v. the former Yugoslav Republic of Macedonia, no. 26711/07 and 2 others, § 87, 12 May 2016). She did not provide the trial court with any reason about why she refrained from doing so either. 46. The Court considers that in view of the reasoning provided by the court about the lack of an audio and video transmission, the applicant, who was assisted by a lawyer, could have foreseen that she would not have any other opportunity to put her questions to the anonymous witness. In that connection, it notes that the applicant never alleged that she had not had the benefit of appropriate legal advice on the matter or alleged that the services of her lawyer were inadequate. The Court considers that taking into account the applicant’s unequivocal refusal to use the safeguard provided by the domestic court, it cannot speculate on whether the said safeguard was sufficient so as to provide the same guarantees with the defence as the cross-examination of the witness. 47. In view of the above, the Court concludes that the applicant, by refusing to provide the trial court with questions to be put to the anonymous witness, waived her right to examine that witness. This waiver was attended by minimum safeguards commensurate with its importance. In this respect, the Court observes that during the closed hearing, the trial court itself heard the anonymous witness in the presence of the public prosecutor, forming its own impression of his reliability (contrast Balta and Demir, cited above, § 56). The questions prepared by the applicant’s co-accused were put the anonymous witness, who responded to each of them. The public prosecutor did not ask any questions to the witness (see paragraph 17 above). The Court observes that the statements made by the anonymous witness during the closed hearing were read out to the applicant and her co-accused at the subsequent hearing and that she had the possibility to comment on them. However, while the applicant challenged those statements as being contradictory, neither she nor her lawyer specified before the trial court why they considered them to be so. Nor did they advance any substantive objections to their content (see paragraph 18 above). In that connection, the Court also observes that following the closed hearing, the applicant did not repeat the only argument she had raised regarding the reliability of the anonymous witness’ statements, which concerned the alleged discrepancy between them and the bus driver’s statements. It notes that notwithstanding her failure to put that question to the anonymous witness, or to raise it again when the witness statements were read out to her, the Assize Court responded to that argument by referring to the scene-of-incident report drawn up after the events of 15 February 2007 (see paragraph 20 above). 48. Furthermore, the Court does not consider that the case raised any questions of public interest preventing the specific procedural guarantees from being waived (see Hermi v. Italy [GC], no. 18114/02, § 79, ECHR 2006‐XII). No reason can be discerned to doubt that the applicant’s waiver constituted a knowing and intelligent relinquishment of a right. As stated above, she could, with the assistance of her lawyer, reasonably have seen the consequences of her conduct (see Murtazaliyeva, cited above, § 127 with further references). 49. Consequently, the Court dismisses the applicant’s complaint under this head as manifestly ill-founded pursuant to Article 35 § 3 (a) and 4 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.”
51. The applicant claimed 60,000 euros (EUR) in respect of non-pecuniary damage. 52. The Government contested that claim, finding it excessive. 53. The Court considers that the finding of a violation of Article 5 § 4 constitutes in itself sufficient just satisfaction in respect of any non-pecuniary damage suffered by the applicant (see Hebat Aslan and Firas Aslan, cited above, § 98). 54. The applicant claimed EUR 1,500 for legal fees, referring to the scale of fees of the Union of Bar Associations of Turkey. She also claimed EUR 1,053 for the other costs and expenses, such as postal, translation and stationery expenses, incurred before the domestic courts and the Court. In support of this part of her claim, the applicant submitted a breakdown of expenses of TRY 3,000 (approximately 1,000 euros at the time). 55. The Government contested those claims, noting that the legal fees claimed by the applicant were excessive and that the document submitted by her regarding the other costs did not prove that any payment had actually been made. 56. 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 Court notes that the applicant merely referred to the Union of Bar Association’s scale of fees and failed to submit any supporting documents. In those circumstances, and bearing in mind the terms of Rule 60 § 2 and 3 of its Rules, the Court makes no award in respect of the legal fees claimed by the applicant (see Hülya Ebru Demirel v. Turkey, no. 30733/08, § 61, 19 June 2018). Regard being had to the document she submitted about the other costs and expenses, it finds it reasonable to award her EUR 500 under this head. 57. 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,
(a) that the respondent State is to pay the applicant, within three months the following amounts, to be converted into Turkish liras at the rate applicable at the date of settlement, EUR 500 (five hundred euros) plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(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;
Done in English, and notified in writing on 4 February 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Hasan Bakırcı Valeriu GriţcoDeputy RegistrarPresident