REPUBLIC OF TURKEY

CONSTITUTIONAL COURT

SECOND SECTION

JUDGMENT

BARAN KARADAĞ

(Application no. 2014/12906)

SECOND SECTION

JUDGMENT

I.          SUBJECT-MATTER OF THE APPLICATION

1.         The applicant has stated that in the criminal case that he was tried, an interpreter was not assigned to him although he had informed the Court that he wanted to make his defense in Kurdish; that the sole evidence concerning the crimes with which he is being charged with are the mere statements of anonymous witnesses and claimed that his right to a fair trial which has been defined in Article 36 of the Constitution has been violated and requested pecuniary and non-pecuniary damages and that such violation be established.

II.       APPLICATION PROCESS

2.         The application was lodged on 17/7/2014 via the 1^st Assize Court of Van. As a result of the preliminary administrative examination of the petition and its annexes, it has been determined that there is no deficiency to prevent the submission thereof to the Commission.

3.         It was decided by the Third Commission of the Second Section on 16/12/2014 that the examination of admissibility of the application be conducted by the Section and the file be sent to the Section.

4.         It was decided by the President of the Section on the date of 5/1/2015 that the examinations for admissibility and merits of the application be conducted jointly and a copy be sent to the Ministry of Justice (the Ministry) for its opinion.

5.         The facts, which are the subject matter of the application, and a copy of the application were sent to the Ministry of Justice for its opinion. The letter of opinion of the Ministry of 6/2/2015 was notified to the applicant on the date of 13/2/2015; the applicant has not made any counter statements against the opinion of the Ministry.

III.   THE FACTS

A.       The Circumstances of the Case

6.         As expressed in the application form and the annexes thereof and the opinion of the Ministry, the relevant incidents are summarized as follows:

7.         The applicant was taken under custody on 2/6/2011 and arrested upon the judgment of the 4th Assize Court of Van with query no. 2011/82 for the crimes of "Committing crimes in the name of the terrorist organization despite not being a member of the terrorist organization PKK KONGRA GEL, active resistance to the duty official within the framework of the terrorist organization activity and making the propaganda of the terrorist organization."

8.         The statements of the anonymous witness HX922Q was called upon by Office of the Chief Prosecutor of Van, within the scope of the investigation. No justification was shown by the Office of the Chief Prosecutor regarding the concealment of the identity of the witness and the legal and actual reasons on which the judgment could be based were not provided. The related portion of the minutes covering the statement of the witness of 30/3/2011 is as follows:

       "...The witness was asked about the person or the persons, involved in the youth structure, who have carried out the four individual explosions including the one which took place in the Erciş district on the date of 13/10/2010 at 22.00 hrs at the transformer center named TEİAŞ; the one which took place at 23.50 hrs on the very same day at the place of work called the Yunus Emre Tea House on the Ağrı-Van highway, which belonged to an individual by the name of M.G.; the one which again took place on the date of 14/10/2010 at 02.30 hrs at the municipal parking lot which is located in Kışla Neighbourhood and the one that took place on the date of 02/10/2011 at 21.50 hrs in front of Halk Bank; and head shot pictures which were numbered from 1 to 30 that were obtained from the security directorate were shown. In his/her declaration;

       Those who have thrown molotovs to the transformer and the Yunus Emre Tea House are Baran KARADAĞ [the Applicant] and persons in the head shots no. 2 and 4 which you have shown me and are in the file. I know the person no. 4 but I do not know the name. I overheard what they did as they were speaking among themselves at the BDP building in Erciş, at the youth hall, but I could not ask how it was carried out in order not to raise suspicion."

9.         Because of the crimes of "Making the propaganda of the terrorist organization PKK/KONGRA-GEL, possession or exchange of dangerous substances without permission, use of explosives in a way to cause fear, anxiety or panic, resistance in a way to hamper service, damage on public property, being a member of the armed terrorist organization, making the propaganda of the terrorist organization, incurring damage on property, unarmed participation in illegal meetings and assemblies and not  dispersing on its own motion despite the warning, armed participation in meetings and assemblies" a criminal case was filed regarding the applicant with the indictment No. E.2011/516 of 10/10/2011 of the Office of the Chief Prosecutor of Van (tasked through the Code of Criminal Procedure Art. 250) at the 3rd Assize Court in Van (tasked through the Code of Criminal Procedure Art. 250).

10.     The relevant part of the indictment is as follows:

       "It was understood ... that in his/her statement the anonymous witness HX922Q has expressed that one of the perpetrators of the bombed assaults which took place at the municipal parking lot in the District of Erciş, the transformer which belongs to TEİAŞ and the Yunus Emre Tea House on the dates of 13.10.2010 and 14.10.2010 was the suspect Baran KARADAĞ [the Applicant], upon which the documents concerning the acts mentioned in the statement of the anonymous witness were obtained and incorporated into the file, that in the investigation which was carried out it was understood that an explosion has taken place at the transformer center named TEİAŞ but caused no damage, that during the explosion at the Yunus Emre Tea House some material damage was inflicted on the wall and as a result of the bombed assault at the municipal parking lot the windows of a car which belonged to the municipality was shattered and material damage was inflicted and considering that such acts of bombed assaults have been carried out with the same type of bombs using the very same methods, it was understood that all three acts were carried out by the same person or persons and according to the statement of the anonymous witness which complies with the occurrence of such events whereby the suspect is one of the perpetrators, that the suspect has committed the crimes of possession and use of explosives; incurring damage on the property of A.G., the complainant; deliberately endangering the general security through his act at the transformer center named TEİAŞ; and damaging public property through his act at the municipal parking lot and that he has to be penalized in compliance with Article 174/1,2 of the Turkish Criminal Code, Article 5 of the Law No. 3713, Article 55 of the Turkish Criminal Code (three times), Article 151/1 of the Turkish Criminal Code, Article 5 of the Law No. 3713, Article 53 of the Turkish Criminal Code, Article 152/2-a of the Turkish Criminal Code, Article 5 of the Law No. 3713, Article 53 of the Turkish Criminal Code, Article 170/1-z of the Turkish Criminal Code, Article 5 of the Law No. 3713, and Article 53 of the Turkish Criminal Code."

11.     The Applicant has made his defense in Turkish during his statement at the Office of the Chief Prosecutor, the interrogation and in the first two hearings of the trial.

12.     The Court of First Instance has established the declarations of the anonymous witness who was heard during the investigation phase in an environment where the accused and his counsel were were not present and on a date the day and hour of which was not notified to the defense (in between sessions). No justification has been found in the minutes as to why the witness had to be heard in such fashion. However, in the 3rd hearing of the trial the applicant and his counsel were granted seven days so that they could notify the particulars which they wished to ask the anonymous witness.   No information concerning the fact that the counsel of the accused has submitted a petition was included in the minutes of the hearing.

13.     The statements of the anonymous witness were taken by the Court on the date of 20/6/2012. No justification have been shown regarding the concealment of the identity of the witness and the legal and actual reasons on which the judgment could have been based have not been provided. In the hearing where the statements of the anonymous witness was taken the Chief Prosecutor was also present. The anonymous witness has made statements as given below:

"...I have given my statement regarding this matter at the Office of the Chief Prosecutor. I know B.K. B.K. distributes newspapers in Erciş in the name of the party, and I have seen him many times throwing stones at the police during the illegal incidents that he has participated in as well.   I have overheard at the party building that one of those who have thrown molotovs to the transformer in Erciş and the Yunus Emre Tea House in the month of October in the year 2010 was B.K. and I know that B.K. himself was talking about having thrown a molotov at the center of the district, for I have been told so by persons who have heard that..."

14.     During the 5th hearing of the trial of 3/7/2012 anonymous witness statements which have been established by the court were read between hearings and the counsel of the applicant notified that he did not accept the statements of the anonymous witness. And the statements made by the applicant were recorded in the minutes as follows: "It was seen that he spoke in Kurdish; was not understood."

15.     With the judgment no. E.2011/390, K.2012/491 of 18/9/2012 of the court, it was decided that the applicant be convicted for some crimes.

16.     Upon the appeal of the said judgment, the judgment of the Court of First Instance was overturned with the writ no. E.2013/3821 K.2013/8365 of 4/6/2013 of the 9th Criminal Chamber of the Supreme Court of Appeals.  The justification for reversal is as follows:

       "Regarding the cases that have been lodged for the alleged offenses by the accused Baran Karadağ [Applicant] concerning causing damage on the property of A.G. and deliberately endangering general security by way of throwing explosives to the transformer center that belonged to TEİAŞ, it was decided that delivering a judgment was always possible.

       ...

       A- Since the judgments concerning the postponement of the pronouncement of the judgment and the judgments concerning the postponement of prosecution which were taken as per Article 231/12 of the Code of Criminal Procedure and Paragraph 1 of the Provisional Article 1 of the Law No. 6352 have the quality of standing against the provision of Paragraph 4 of the said Article and the 2nd sentence of Paragraph 8 of Article 223 of the Code of Criminal Procedure and are not among the judgments which are of the quality of convictions specified in Article 223/1 of the Code of Criminal Procedure, that due action be taken by the office of objection,

       ...

       C- As for the appeals concerning the convictions which have been established on Baran Karadağ, the accused, for the crimes of being a member of the armed terrorist organization and possession of explosives;

       that other objections of the accused and his counsel for appeals be rejected, however that;

       1- Since; despite the lack of sufficient evidence for conviction for the crime of being a member of the armed terrorist organization concerning his involvement in the hierarchical structure within the organization, considering that the act of the accused who, on the date of 13.10.2010, thrown explosives to the Yunus Emre Tea House and the transformer that belongs to TEİAŞ in the name of the organization could be assessed to constitute the crime of committing crimes in the name of the organization without being a member of the armed terrorist organization and also taking into consideration the date of the crime that was committed in the name of the terrorist organization, whereby a difficulty was found in the establishment and determination of the legal status of the accused as per the amendment which has been made in article 85 of the Law No. 6352 which was enacted upon its publication in the Official Gazette of 05/07/2012 and in Article 220/6 of the Turkish Criminal Code,

       And since, as a result of the explosives that the accused has thrown within the very same day at close intervals to the Yunus Emre Tea House and the transformer that belonged to TEİAŞ, the punishment of the accused as per article 174/1 of the Turkish Criminal Code would have been considered as sufficient, the establishment of a double conviction due to posesion of explosives, ... since the objections of Baran Karadağ, the accused, and the counsel of the accused have been considered to be admissible, hence the convictions be OVERTURNED, ... and it was decided as such.

17.     As a result of the retrial which was carried out after the judgment of reversal, the defense of the applicant was obtained in company with an interpreter in the hearing of 25/9/2013.

18.     As a result of the assessment that it has carried out within the scope of "...the indictment, witness statements, minutes pertaining to the incident, criminal reports, search and confiscation minutes, instruments of the crime which are recorded under the item no. 2011/271, 272 at the judicial property and evidence unit, footage and photographic recordings of the incidents in which the suspects were involved, the expert report, the statement of the anonymous witness HX922Q, civil and judicial registry records and the entire file", the 3rd Assize Court of Van has decided that the applicant be sentenced to 3 years, 1 month and 15 days of imprisonment for committing crimes in the name of the terrorist organization without being a member of the terrorist organization,; to 4 years and 2 months of imprisonment and an administrative fine of TRY 100 for the crime of possession of explosives without permission; and to 7 months and 15 days for the crime of deliberately endangering the general security and 15 months of imprisonment for the crime of incurring damages on property.

19.      The court has decided that the pronouncement of its judgments on conviction for the crimes other than "committing crimes in the name of the terrorist organization without being a member of the armed terrorist organization and possession of explosives” be postponed.

20.     Upon the applicant's appeal of the judgment concerning the crimes for which the pronouncement of the judgment was not postponed, the 9th Criminal Chamber of the Supreme Court of Appeals has approved the judgment of the Court of First Instance with its writ no. E.2014/1315, K.2014/2545 of 5/3/2014.   

21.     The said judgment was notified by hand to the attorney of the applicant on 17/7/2014.

22.     The individual application was submitted on the date of 17/7/2014.

B. Relevant Law

23.     Article 202 with the side heading "Circumstances whereby an interpreter shall be provided" of the Code of Criminal Procedure No. 5271 of 4/12/2014 is as follows:

"(1) If the accused or aggrieved does not speak Turkish to the extent where s/he is able to express himself/herself; the essential points pertaining to the allegation and defense in the trial shall be interpreted through an interpreter appointed by the court.

(2) The essential points pertaining to the allegation and defense shall be explained to the accused or aggrieved, who is handicapped, in a manner which they can understand.

(3) Provisions of paragraph one and two shall also apply for the suspect, aggrieved or witnesses heard at the investigation stage. At this stage the interpreter shall be appointed by the judge or the Public prosecutor.

“(4) (Additional clause: Law No. 6411 of 24/01/2013 / Art. 1.) Moreover, the accused can;

a) Upon reading of the indictment,

b) Upon rendering of opinion as to the accusations,

present his/her verbal defense in another language in which s/he has declared that s/he is able to express himself/herself better. In this case, the interpretation services shall be fulfilled by an interpreter of the accused's choosing from a list created as per paragraph five. Expenses of said interpreter shall not be met by the State Treasury. These means cannot be abused towards the purpose of procrastinating adjudication.

(5) (Additional paragraph: Law No. 6411 of 24/01/2013 / Art. 1) The interpreters shall be chosen from among persons included in the list prepared annually by the provincial judiciary justice commissions. Public prosecutors and judges may select an interpreter not only from the lists prepared for the province they are in but also from lists prepared in other provinces. The procedures and principles pertaining to the preparation of said lists shall be established through a regulation."

24.     Paragraphs (2) and (3) of Article 58 of the same Law are as follows:

"(2) If the revelation of the identity of persons to be heard as witness is to cause grave danger to them or their relatives, the necessary measures to keep their identities secret shall be taken. The witness whose identity is kept secret is obliged to disclose how and why s/he got to know the events s/he is testifying about. In order for the identity to be kept secret, personal information about the witness shall be kept by the Public prosecutor, judge or the court.

(3) Should the hearing of the witness before those present pose a grave threat to the witness and if this danger cannot be prevented otherwise or endangers the revelation of the material fact, the judge may also hear the witness without the presence of those who hold the right to be present. Audio - visual transmission shall be used during the hearing of the witness. The right to ask questions shall be reserved."

25.     Relevant parts of Article 9 with the side heading "Procedures to be applied in the hearing of witnesses regarding whom a judgment for protective measure has been taken" of the Law on Witness Protection No. 5276 of 27/12/2007 is as follows:

       "(1) According to the provisions of this Law, the second and third paragraphs of Article 58 of the Code of Criminal Procedure shall be applied during the hearing of witnesses regarding whom a cautionary judgment is delivered.

(2) In the event it is adjudged by the court to apply the third paragraph of Article 58 of the Code of Criminal Procedure, the recognition of the witness during the hearing can be prevented by modifying his/her voice and image.

(3) It can also be decided that the witness be heard as per a procedure to be established and determined by the court whereby his/her physical appearance is obstructed in the hall.

(4) In the event that the witness is heard, as per the provisions of Paragraphs one and two, without the presence of those who have the right to be present at the hearing, the statements made by the witness shall be disclosed by the judge to those who have the right to be present at the hearing under the condition that the restrictions specified in Article 58 of the Code of Criminal Procedure are observed.

(5) In the event that the witness is heard as per the provision of paragraph three, in the application of Article 201 of the Code of Criminal Procedure, the questions which are to be asked to the witness must be in line with the objective and proportional to the measures that are being applied as regards the witness within the scope of this Law. To this end, the judge can decide that the questions that are being asked are not addressed to the witness or shall not allow the questions that can reveal the identity of the witness during the hearing of the witness, even if indirectly.

(6) A decision pertaining to the application of the provisions of this article through a delegated judge or through rogation can be taken by the competent court or by the court of venue.

(7) The witness statements taken as per the provision of this Article shall have the consequence of a statement which has been made before those present during the hearing, as per the provisions of the Code of Criminal Procedure.

(8) In line with the sub-paragraphs (a) and (b) of Paragraph one of Article 5 of this Law, the statement of the witness regarding whom a caution is being applied shall not constitute the basis of conviction by itself.

(9) The provisions of this Article shall be applied during the hearing of the witnesses at the reconnaissance, regarding whom a cautionary judgment has been delivered.

(10) The provisions of this article cannot be applied in a way to limit the right to defense."

26.     Article 4 of the same Law is as follows:

"(1) Persons regarding whom the witness protection measure can be applied as per the provisions of this Code are as follows:

     a) Those who are heard as witnesses during the criminal procedure and victims of crimes who are heard as witnesses as per Article 236 of the Code of Criminal Procedure No. 5271 of 4/12/2004.

     b) The fiancées, spouses even though the bond of marriage no longer persists, antecedents or descendants of blood kins or in-law kins, blood kins or in-law kins including those of the second degree of those who have been heard as per the provisions of the sub-paragraph (a) and those with whom there is filial bond and persons with whom they are in a close relationship.

(2) The witness protection measures can be applied in cases where the lives, bodily integrity or property of those listed in paragraph one or those of their relatives that have been specified in this Law are under grave and serious danger and the protection thereof is compulsory."

27.     Article 5 of the same Law is as follows:

(1) Witness protection measures that can be implemented regarding those who are within the scope of this Law are as follows:    

     a) Recording information on the identity and address thereof and keeing it confidential and determining a new address for the notifications that will be made to him/her.      

     b) Hearing him/her without the presence of those who have the right to be present at the hearing or hearing him/her in a special environment where his/her voice or appearance has been altered.         

     c) Placement of those who are detained or convicted in penal institutions and detention homes which befit their situation.

     ç) Ensuring physical protection.

     d) Alteration and edit of identification and other related information and documents.

                 1) Alteration and edit of  judicial records, military, tax, civil registry, social security and similar information and records.

                 2) Alteration and edit of official documents such as national identification card, driver's license, passport, marriage certificate, diplomas and all sorts of licenses.

                 3) Performance of transactions concerning his/her exercise of his/her rights regarding his/her movable and immovable properties.

     e) Provision of financial assistance with the aim of securing his/her livelihood temporarily.

     f) Changing the job or the working field of a working person or changing all sorts of establishments of education and training where s/he pursues education and training. 

     g) Ensuring that s/he lives in another settlement within the country.

     ğ) Ensuring that s/he is settled in another country in compliance with the international agreements and the principle of reciprocity.

     h) Changing of his/her physical appearance through plastic surgery or without requiring plastic surgery and re-arrangement of identification information in compliance therewith.

(2) One or several of the measures which are written in this article can be applied simultaneously. However, if the same outcome is achievable with a lighter measure, this circumstance shall also be taken into consideration."

28.     Paragraph (4) of Article 6 of the same Law is as follows:

"According to the provisions of this Article;

     a) In delivering the witness protection judgment; the severity and the gravity of the danger that the person who is protected or his/her relations are faced with, the importance of the offense which is the subject of the investigation and prosecution, the explanations that will be made by the witness, the approximative cost of the measure to be employed, the psychological status of the witness and other particulars of similar status shall be taken into consideration.

     b) In the requests to be made a justification must definitely be given and the legal and actual reasons on which the judgment could be based upon shall be provided.

IV.    EXAMINATION AND GROUNDS

29.     The individual application of the applicant of 17/7/2014 numbered 2014/12906 was examined during the session held by the court on 7/5/2015 and the following were ordered and adjudged:

A.       The Applicant’s Allegations

30.     The applicant has alleged that in the criminal case that he is being tried for, a judgment for conviction has been made regarding him with reliance upon the statements of the anonymous witness which were not reflective of the truth, that he could not make a defense at the Court in his mother tongue, that an interpreter was not assigned to him despite he had notified the Court that he wished to make his defense in Kurdish, that he was not granted the right to defend himself following the recitation of the opinion regarding the merits, that he was out of town on the date when the acts which are attributed to him have taken place, that his request for an expert on the incidents at hand was dismissed by the Court, that the only evidence concerning the crimes that are attributed to him are the anonymous witness statements and that he was not given the chance to ask questions to this witness and claimed that his right to a fair trial defined in Article 36 of the Constitution has been violated, requesting that the violation be established and pecuniary and non-pecuniary damages be paid.

B. The Constitutional Court’s Assessment

            1.  Admissibility

a.    Alleged Violation of the Right to the Free Assistance of an Interpreter

31.     The applicant has claimed that his right to defense has been violated when he was not allowed to defend himself in his mother tongue despite he had wanted to do so.

32.     Paragraph one of Article 36 of the Constitution is as follows:

"Everyone has the right to make claims and defend themselves either as plaintiff or defendant and the right to a fair trial before judicial bodies through the use of legitimate ways and means."

33.     The arrangement in Sub-paragraph (e) of Paragraph (3) under Article 6 of the European Convention on Human Rights (the Convention) with regard to the issue is as follows:

“3. Everyone charged with a criminal offense has the following minimum rights:

...

e) Availing of the help of an interpreter free of charge in cases where s/he does not understand nor speak the language which is spoken at Court."

34.     Sub-paragraph (e) of Paragraph (3) under Article 6 of the Convention secures the right to the free assistance of an interpreter when the person to whom a crime has been attributed cannot understand or speak the language that is spoken at the Court. Such right is granted only to those to whom a crime has been attributed and in order to be able to benefit from such a right whether the accused has the ability to pay or not has no significance (Ali İlhan Bayar, App. No: 2013/725, 19/11/2014, § 48).

35.     The right to the free assistance of an interpreter shall be applied both to the translation of documents and to oral statements; in both cases, the translation which is needed for the performance of a fair trial has to be done.  This right does not necessitate the translation of all words which have been uttered in a hearing or of all of the documents; what needs to be considered is whether the accused is at a level to fully understand and respond to the accusations about him/her (see. Kamasinski v. Austria, App. No: 9783/82, 19/12/1989, §§ 74, 83).

36.     However, the real issue that needs to be resolved regarding the application at hand is whether or not the liability of the state is valid for all of those accused who want an interpreter. At this point it has to be accepted that the right to the free assistance of an interpreter is a limited right. In other words, the mandate is not to assign an interpreter for all of those who request it but to assign one so as to reap the benefit expected from a fair trial and only for those who do not know, understand and speak the language used during the proceedings.  When persons who do not know, understand and speak the language that is being used during the proceedings require the assistance of an interpreter, then the liability of the state to provide translation becomes evident.

37.     To determine whether or not such persons have any such needs is the duty of the judge presiding the case. The judge, after interviewing the defendant, should make sure that the defendant would not be harmed as a result of the absence of an interpreter during the proceedings (Cuscani v. United Kingdom, App. No: 32771/96, 24/9/2002, § 38)

38.     The ECtHR (European Court of Human Rights) indicates that the Article 6 (3) (e) of the Convention introduces a right which can be exercised only by those who do not know the language employed at the court and that a defendant who 'understands' and 'speaks' the language of the court cannot insist on his/her request to avail of an interpreter to make a defense by using another, for example, using the ethnic language to which s/he belongs (Lagerblom v. Sweden, App. No: 26891/95, 14/1/2003, §§ 61-64).

39.     As per Article 202 of Law No. 5271 if the accused or aggrieved does not speak Turkish to the extent that s/he can express him/herself; the essential points pertaining to the allegation and defense in the trial shall be interpreted through an interpreter appointed by the court. The suspects, aggrieved or witnesses who are heard during the investigation phase shall also benefit from such right. With Article 202 of the Law No. 5271, the suspects/accused who cannot speak Turkish to the extent of not being able to explain their intent are given the opportunity to make their defense in a language other than Turkish. Accordingly, it is provided that persons who in no way can speak or understand Turkish can relay their grievances and make their defense in their mother language or a language which they know.

40.     On the other hand, with Paragraph (4) added to Article 202 of the Law No. 5271 on 24/1/2013, the right to the free assistance of an interpreter has been expanded by transcending the criteria which have been laid down in the Convention and the case law of the ECtHR. According to the new rule, a provision was introduced to the effect that the accused can 'upon the recital of the indictment and the delivery of the opinion as to the merits, deliver his/her oral defense in another language which s/he has declared that s/he could better express him/herself in.' Thus, the accused who 'knows Turkish to the extent of explaining his/her intent' was given the opportunity to make his/her defense in another language.

41.     In the incident at hand, the applicant was taken under custody on 2/6/2011 and  from that date on gave his statements in Turkish at the Office of the Chief Public Prosecutor and during questioning throughout the investigation process.  During the prosecution phase (i.e. prior to quashing) on the other hand, has he defended himself in Turkish during the first two sessions, and requested to defend himself in Kurdish in the subsequent sessions; yet his request to use an interpreter was not accepted. Following the decision of reversal and the legal amendment, his statements were obtained in the company of an interpreter. In this case, it was concluded that the dismissal of the request of the applicant who 'understands' and 'speaks' the language of the court to avail of an interpreter in order to make defense in the ethnic language to which he belongs is not a restriction of his right to defense, hence not a violation of his right to a fair trial.

42.     Due to the reasons explained, it should be decided that the application is inadmissible for being 'manifestly ill-founded' as it is understood that there is no violation of his right to the free assistance of an interpreter.

b.   Alleged Violation of the Right to Defense and the Request for an Expert

43.     Indicating that he was not given the right to defend himself after the recital of the opinion concerning the merits and that the request for an expert concerning the circumstances at hand was dismissed by the Court, the Applicant has claimed that his right to a fair trial provided in Article 36 of the Constitution was violated.

44.     Article 48 (2) of the Law No. 6216 on the Establishment and Trial Procedures of the Constitutional Court of 30/3/2011 with the side heading 'The conditions for and evaluation of admissibility of individual applications' is as follows:

       “The Court, .... can rule on the inadmissibility of applications, which are manifestly ill-founded.” "

45.     As per Articles 47 (3) and 48(1) and (2) of the Law No. 6216 and respective paragraphs of Article 59 of the Internal Regulation, it is under the responsibility of the Applicant to prove his/her claims on the facts that are the subject matter of the application by way of submitting evidence in relation to such facts and to prove his/her legal allegations by way of making explanations concerning the violation of the provision of the Constitution which has been relied upon (Veli Özdemir, App. No: 2013/276, 9/1/2014, 19).

46.     The applicant must attach to the application petition the rights and liberties and the provisions of the Constitution which have been relied upon that are claimed to have been violated by the transactions, actions or negligence of the public power as well as the justifications for the violation, the relied evidence and either the original or a sample of the transactions or decisions that are claimed to have led to such violation. A chronological summary of the transactions, actions or negligence of the public power that are claimed to have led to the violation should be provided within the application petition, and which right within the scope of the individual application and why such right was violated should be explained together with the justifications and evidence thereto (Veli Özdemir, App. No: 2013/276, 9/1/2014, 20).

47.     Although it is under the responsibility of the Applicant to prove his/her claims on the facts concerning the case by way of submitting evidence in relation to the claim of violation that is the subject matter of the application and to prove his/her legal allegations by way of making explanations about which provision of the Constitution that has been relied upon was violated, the applicant has abstractly claimed that the Court has dismissed his request for an expert concerning the matters at hand, not providing the Constitutional Court with any information or evidence as to in which session, for what reasons and concerning which matters an expert was requested. On the other hand, as the applicant claimed that he was not given the right to defense following the recital of the opinion concerning the merits, it was understood that he was with his counsel during the recital of the opinion concerning the merits that he has mentioned and that his counsel has stated his objections to such opinion concerning the merits in the subsequent sessions.

48.     For the reasons explained, since the claims of violation as alleged by the applicant have not been proved by the applicant and as the absence of a violation is evident, it has to be decided that this portion of the application is inadmissible for being 'manifestly ill-founded,' without any further examination as to other admissibility criteria.  

c.   Alleged Violation of the Right to Question a Witness

49.     The applicant's complaint concerning the violation of the right to question a witness is neither manifestly ill-founded, nor other inadmissibility criteria for this complaint are present.  For this reason, it is necessary to deliver a judgment of admissibility as regards this part of the application.

2.   Merits

50.     The applicant claims that the sole evidence concerning the crimes of 'possession of explosives and damage to property' attributed to him are mere anonymous witness statements and that he was not given the opportunity to question this anonymous witness. 

51.     In order to be able to conduct a trial which is equitable in general terms, it is obligatory to provide the parties with the appropriate opportunities to present their claims under the light of the principles of "equality of arms" and "adversarial trial". It is necessary to provide the parties with the appropriate opportunities as regards presenting their evidence and having them examined, including the witness evidence. In this sense, claims of imbalance and unfairness concerning the evidence have to be evaluated under the light of the entirety of the trial (Muhittin Kaya and Muhittin Kaya İnşaat Taahhüt Madencilik Gıda Turizm Pazarlama Sanayi ve Ticaret Limited Şirketi, App. No: 2013/1213, 4/12/2013, § 27).

52.     In a criminal procedure, the right of the accused to interrogate the witnesses against him/her or to have them interrogated and to request the assurance that witnesses in favour of the accused are also summoned and heard under the same conditions as those against him/her has been regulated in Article 6 (3) (d) of the Convention. For this reason, the applicant's claim that a witness has not been heard has to be considered within the scope of Article 36 of the Constitution and Article 6 (3) (d) of the Convention.

53.     Article 6 (3) (d) of the Convention is as follows:

"(3) Everyone charged with an offense 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;”

54.     Article 6 (3) (d) of the Convention provides the criminally charged person with two rights: The first of these rights is the right to cross-examine the witnesses against him/her, in other words the right to adversely question them in the public trial and the second is the right to ensure that his/her witnesses are summoned and heard under the same conditions as those of the claimant so as to ensure the equality of arms (Ali İlhan Bayar, App. No: 2013/725, 19/11/2014, § 36).

55.     In order for all the evidence to be discussed during the prosecution, as a rule, such evidence has to be produced in a public hearing and before the accused. While this rule is not without exceptions, if a conviction is, merely or to a certain extent, based on the statements given by a person whom the accused could not have the opportunity of examining or having examined during the phase of investigation or trial, the rights of the accused shall be restricted in a way that does not comply with the guarantees in Article 6 of the Convention. If there is a single witness to the incident and if the judgment is to be established only with reliance upon the statement of this witness, the witness must be heard at the trial and questioned by the accused. A judgment of conviction cannot be established with reliance upon the statement given by such witness at a time when the accused had not been interrogated (Atila Oğuz Boyalı, App. No: 2013/99, 20/3/2014, § 46; for a resolution of the ECtHR to a similar effect, see. Delta v. France, App. No: 11444/85, 19/12/1990, § 36-37).

56.     The ECtHR, in addition to the principles mentioned above, agrees that Article 6 (1) and (3) (d) of the Convention have to give the accused the opportunity to object the statements made by the witness declaring against thim/her during the taking of the witness statement or at later stages of the proceedings (see. Van Mechelen and Others v. The Netherlands, App. No: 21363/93, 21364/93, 21427/93 and 22056/93, 23/4/1997, § 51 and Lüdi v. Switzerland, App. No: 12433/86, 15/6/1992, § 49; Hümmer v. Germany, App. No: 26171/07, 19/07/2012, § 38).

57.     In some cases where the accused have the knowledge of the identity of the witness, this may pose a danger for the witness or for his/her affinities. Those who are to service as witnesses might have rightful reasons to fear for retaliation. Furthermore, in the fight against organized crime, keeping the identity of the witness confidential must not be underestimated. The increase in organized crime might require that certain measures are taken. For this reason, if the identity of a witness is kept confidential, it has to be considered as well that the defense can face with hardships which do not exist under normal conditions during criminal proceedings.

58.      In such cases, it is also probable that the defense might be bereaved of the opportunity to try whether the person whose identity is kept confidential is  prejudiced, untrustworthy or someone who acts with enmity or to cast suspicion over the credibility of what s/he will say. On the other hand, nonattendance to the trial of persons the identity of whom are kept confidential also hamper the trying judges' observation of the conduct and behavior of such persons and as such, their construct of their own impressions regarding the credibility of such persons. Regarding this issue, the ECtHR underscores that adequate balancing factors including procedural measures to allow for a fair and appropriate evaluation of the credibility of the statement to be obtained must be present (see. Al-Khawaja and Tahery v. United Kingdom [BD], App. No: 26766/05 and 22228/06, 15/12/2011, § 147; Ellis, Simms and Martin v. United Kingdom, App. No: 46099/06 and 46699/06, § 78, Pesukic v. Switzerland, App. No: 25088/07, 6/12/2012, § 45).

59.     According to the ECtHR, the fact that the recount of anonymous witnesses have been taken as the basis for the judgment is not, under all circumstances, incongruous with the Convention. Although Article 6 of the Convention does not explicitly require that the interests of the witnesses and of the victims who have been summoned as special witnesses are taken into consideration, the interests of such persons which are generally covered under Article 8 of the Convention such as their lives, freedoms and safety can also be endangered. Such interests of witnesses and victims are under the protection of the material provisions of the Convention. In such cases, by way of handling Article 6 (3) (d) and Article 6 (1) of the Convention jointly, the interests of the accused and the interests of the witnesses have to be adequately balanced through procedures implemented by judicial authorities (Doorson v. The Netherlands, App. No: 20524/92, 26/03/1996, §§ 69-70, 72).

60.     Indeed, the witness, due to the information that s/he has provided by performing his/her public duty, has the right to request that him/herself and his/her affinities or property are protected by reason of his/her being a witness. For it can very well be possible that a witness, unprotected and concerned about his/her safety or about that of his/her affinities, will not provide an account of what s/he knows, even pending punishment. Accordingly, taking precautions required to ensure that the witness performing his/her public duty is not harmed as a result of the information s/he has provided is the responsibility of the State (AYM, E. 2008/12, K.2011/104, Date of Judgment: 16/6/2011).

61.     Within this context, in Article 58 of the Law No. 5271, two types of witness protection measures have been prescribed. The first of these concerns holding the witness' identity confidential while the second is the hearing of the witness by the judge without the presence of the persons who have the right to be present. Then, in Article 5 of the Law No. 5726, measures such as recording and holding the witness' identity and address information confidential and designating another address for notifications to be made to him/her, hearing of the witness without the presence of those who have the right to be present or hearing the witness in a special environment by altering his/her voice or appearance etc. have been regulated (§§ 26-27).

62.     In order to be able to resort to witness protection measures in compliance with the Law No. 5726, there has to be an investigation or a prosecution concerning one of the offenses identified in the Law, the person on whom the precaution would be applied has to be a witness or an affinity to the witness, the life, bodily integrity and property of such person has to be under grave and serious danger, the measure has to be proportionate, and there has to be a decision by competent authorities (§§ 26-27).

63.     ECtHR agrees that the status of the witnesses not present at the hearing room is similar to that of anonymous witnesses (see. Ellis, Simms and Martin/United Kingdom, § 78). For this reason, while assessing the fairness of a trial where anonymous witnesses who have been summoned to render a verbal statement before the bench, the ECtHR examines first of all whether there are  reasonable justifications to conceal the identity of the witness or not. Secondly, it evaluates whether or not the witness' statement is the sole or definitive basis on which the judgment to be made relies on. Thirdly, in cases where the judgment relies to a greater extent or solely on the anonymous witness' statement, it subjects the trials to detailed scrutiny (Al-Khawaja and Tahery v. United Kingdom, §§ 119 and 147; Pesukic v. Switzerland, § 45).

64.     In cases where anonymous witnesses are involved, the ECtHR has accepted the witnesses' fear that the accused will seek revenge from them as the reason for their unwillingness to reveal their identity to be a valid reason in the case of Al-Khawaja and Tahery v. United Kingdom. However, for the ECtHR, a subjective fear is not sufficient and the trying court has to look into whether such fear has objective grounds or not (see. Marcus Ellis, Rodrigo Simms and Nathan Antonio Martin v. United Kingdom, App. No: 46099/06 and 46699/06, 10/4/2012, § 76).

65.     According to the ECtHR, 'uniqueness of evidence' shall construe as the presence of a single evidence against the accused and the 'decisiveness of the evidence' shall construe as the fact that it is one decisive evidence which tends to seriously effect the outcome of the case.  Within this context, the stronger the other evidence, the lesser the possibility of the decisiveness of the statement of the anonymous witness (see. Marcus Ellis, Rodrigo Simms and Nathan Antonio Martin v. United Kingdom, § 77). In this sense, in cases where the statement provided by the anonymous witness is the sole reason or the decisive aspect of the judgment of conviction, procedural transactions must be scrutinized in as much detail as possible.  In order for the credibility of the statement given to be appropriately evaluated, one must be sure of the presence of balancing aspects between the parties, including strong guarantees concerning the procedure (see. Al-Khawaja and Tahery v. United Kingdom, § 147).

66.     In one of its judgments it has made in the context of concrete norm control also by referencing the decisions of the ECtHR, the Constitutional Court has stated that; it would be possible to keep the identity of the witness confidential as long as a reason enough to justify his/her protection against an unfair intervention from the accused party is present under the condition that the trial as a whole is fair, that neither the decision of conviction can be solely based on the statement of the witness the identity of whom is not revealed, nor such a decision can be held as a substantial evidence, that against such statements given outside of the open session, remedial measures to guarantee the opportunity to question the witness' and his/her statement's credibility must be provided only for the defense, that restrictions on the right to defense must be kept at a minimum and that such restrictions have to be requisite to ensure the protection of the accused and that the interests of the accused must be counterbalanced with those of the witness making statements against him/her (Constitutional Court, E. 2008/12, K.2011/104, Date of Decision: 16/6/2011).

67.     Hence, the following rules in respective Articles have been set out: in Article 9 (4) of the Law No. 5726, that the statements made by the witness whose identity is concealed shall be imparted by the judge to those who have the right to be present at the trial under the condition that the restrictions specified in Article 58 of the Law No. 5271 are adhered to; in paragraph (8), as per Article 5 (1) (a) and (b) of the same Law, that the statement of the cautioned witness per se shall not provide the basis for judgment; in paragraph (10), that the provisions of the Article cannot be applied in a way to impose restrictions on the right to defense; in Article 58 (2) of the Law No. 5271, that the witness whose identity is concealed is liable to explain why and how s/he has acknowledged the incidents s/he is a witness to; and in paragraph (3), that the right of the accused and of his/her counsel to ask questions shall be reserved. Thus, in line with the provisions of the Law No. 5271, witness statements obtained in compliance with the stated rules shall have the force of statements made before those present at the trial. Accordingly, considering the said guarantees which have been agreed upon in favor of the accused, it is seen that the witness' right to request protection for him/herself or for his/her affinities and property as a result of his/her being witness and the rights of the accused within the scope of the criteria for a fair trial are fairly balanced (Constitutional Court, E. 2008/12, K.2011/104, Date of Decision: 16/6/2011).

68.     In this case, it has to be considered, firstly, whether or not reasonable justifications for the concealment of the identity of the witness are present and secondly, whether the statement of the anonymous witness is the only or the decisive grounds for the judgment to be made. Thirdly, in cases where the judgment is to a great extent or solely based on the statement of the anonymous witness, the judgment has to be subjected to detailed scrutiny. If the witness evidence which has not been questioned by the accused or his/her counsel so as to ascertain the accuracy and credibility thereof is the main or the decisive evidence on which the judgment of the court is based upon and if a procedure providing balancing guarantees has not been prescribed, hence the probability that the right to a fair trial is violated. 

69.     It is understood from the application form and the documents attached that no justification was provided as to why the identity of the witness was concealed. Information pertaining to the reputation, criminal record and credibility of the witness are also not available in the file.

70.     In the case at hand, the statements of the anonymous witness were taken by the Public Prosecutor and the court during the process of investigation and prosecution, respectively. The anonymous witness was heard by the court in between the sessions and without notifying the applicant. However, in session 3 of the trial on 5/4/2012 at a stage before the hearing, the Court of First Instance gave the applicant and his counsel seven days to submit the matters which they would like to ask to the anonymous witness. Furthermore, in session 5 on 3/7/2012, the anonymous witness statements as established by the court were recited. The counsel of the applicant has reported his refusal of the statements of the anonymous witness whereas the applicant's statements have been annotated in the minutes as: "It was seen that he spoke in Kurdish; which was not understood."

71.     In the application, concerning the explosions which took place in the TEİAŞ transformer center and in the Yunus Emre Tea House and the incident where the windows of a municipality vehicle were blown as a result of a bomb attack, it was observed that the minutes of incident and the statements of the anonymous witness were considered as basis for the conviction where the judgment essentially relied on the recital of the anonymous witness. In other words, it is understood that the statement of the anonymous witness is a decisive evidence for the incidents concerned. That is because no charges were made on anyoneup until the statement of the anonymous witness. The link between the material incidents that happened and the applicant has been established by taking the statement of the anonymous witness into consideration.

72.     Once it is established that the statement of the anonymous witness is the decisive evidence upon which the decision of the court relies, it has to be also ascertained, then, whether a procedure providing balancing guarantees has been pursued or not. Upon the scrutiny of whether or not adequate balancing factors were present in the case at hand it was seen that so as to protect the rights of the defense the trying court has given seven days to the accused and his counsel to submit the issues they would like to ask to the anonymous witness and that in session 5 on 3/7/2012 the statements of the anonymous witness were recited before the parties. Since the witness was heard by the bench, all the members thereof were able to directly observe the witness' reactions.

73.     However, since the applicant and the counsel were not present during the establishment of the statements of the anonymous witness, they did not have the chance to have personal impressions of his/her responses to the questions asked. For this reason, the court's attention could not be drawn on the conflicts between the witness' statements. In other words, the defense, as such, could not test the anonymous witness' credibility through interrogation. The statements of the witness concerned were later recited at the Court of First Instance before the accused (the applicant) and his counsel and although the applicant was asked about what he would say against the witness statements, this circumstance cannot be considered as an adequate opportunity to object to witness statements. 

74.     Although the witness has declared during the investigation phase that s/he overheard that the incidents concerned were perpetrated by the applicant as they were speaking amongst them, during the prosecution phase s/he has declared that s/he had heard those from someone else. In other words, come the prosecution phase, the anonymous witness' statements have changed. The court failed to remedy the conflicts between the altered statements. Since the statements of the witness cannot be known beforehand, it shall not suffice to remedy such concerns when the defense is asked to notify the court beforehand of its questions to test the credibility of the witness.

75.     As a result, it was seen that no justification as to why the identity of the witness was concealed was provided, that the judgment decisively relied on the statement of the anonymous witness and that the interests of the witness and the rights of the accused within the scope of criteria for a fair trial were not fairly balanced considering the guarantees taken in favor of the accused (the applicant).

76.     For these reasons, it should be decided that the applicant's right to interrogate the witness giving statements against him which is guaranteed in Article 36 of the Constitution was violated.

3. Article 50 of the Law 6216

77.     Article 50 (2) of the Law numbered 6216 with the side heading ''Decisions" is as follows:

        "If the determined violation arises out of a court judgment, the file shall be sent to the relevant court for holding the retrial in order for the violation and the consequences thereof to be removed, In cases where there is no legal interest in holding the retrial, the compensation may be adjudged in favor of the applicant or the remedy of filing a case before the general courts may be shown. The court, which is responsible for holding the retrial, shall deliver a judgment over the file, if possible, in a way that will remove the violation and the consequences thereof that the Constitutional Court has explained in its judgment of violation."

78.     The applicant has requested that the judgment be sent to the court concerned so as to remedy the violation and the outcomes thereof which arose from a court decision.

79.     The identified violation arises from a court decision and since there is legal benefit in the remedy of the violations and the outcomes thereof, it has to be decided that the file be sent to the court concerned for a retrial.

80.   In the examination of the application, it was concluded that Article 36 of the Constitution was violated. The applicant has made a request for TRY 50,000.00 in pecuniary and TRY 50,000.00 in non-pecuniary damages.

81.   Although a request for pecuniary damages has been made by the applicant, since it is understood that there is no link of causality between the violation that has been identified and the material damage claimed, it has to be decided that the requests of the applicant regarding pecuniary damages be dismissed.

82.   Since it was considered that the establishment of the violation of the applicant's right to a fair trial regarding the application and the making of a decision concerning retrial are sufficiently satisfactory, it has to be decided that the request for non-pecuniary damages as a result of the intervention of the right to a fair trial be dismissed. 

83.     It should be decided that the trial expenses of TRY 1,706.10 composed of the fee of TRY 206.10 and the counsel's fee of TRY 1,500.00 which were made by the applicant and determined in accordance with the documents in the file be paid to the applicant.

V.       JUDGMENT

In the light of the reasons explained, it was UNANIMOUSLY held on 7/5/2015;

A.   That;

       1. The claim that the right to the free assistance of an interpreter has been violated,

       2. The claims that the right to defense has been restricted and the request for an expert has been dismissed,

       are INADMISSIBLE on grounds of being 'manifestly ill-founded'

       3.  The claim that the right to interrogate the witness testifying against as safeguarded under Article 36 of the Constitution is violated is ADMISSIBLE,

       4.     The right to interrogate the witness testifying against as safeguarded under Article 36 of the Constitution has been VIOLATED

B.    The judgment be SENT to the relevant Court for a retrial in order for the violation and the consequences thereof to be removed,

C.    The requests of the applicant for compensation be DISMISSED,

D.    The trial expenses of TRY 1,706.10 TL in total composed of the fee of TRY 206.10 and the counsel's fee of TRY 1,500.00 which were made by the applicant BE PAID TO THE APPLICANT,

E.    That the payment be made within four months as of the date of application by the applicant to the Ministry of Finance following the notification of the judgment; that in the event that a delay occurs as regards the payment, the legal interest be charged for the period that elapses from the date on which this period comes to an end to the date of payment.