BAYBASIN v. GERMANY
Inadmissible
Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
The applicant, Mr Nizamettin Baybasin, is a Turkish national who was born in 1963 and lives in Aachen. He was represented before the Court by Mr E. Altun, a lawyer practising in Braunschweig. On 20 March 1998 the applicant was arrested in Germany on the suspicion of drug trafficking in substantial quantities. On 6 May 1998 several persons involved in the drug trafficking, one of whom was witness C., were caught with 85 kg of heroin in Turkey and subsequently detained. During C.’s interview by Turkish police officers on 10 May 1998 he incriminated inter alia the applicant giving detailed information about the applicant’s participation in their drug-dealing activities. During a further interview on 13 May 1998 C. submitted that he “would not accept the statements” of his previous interview, that he “had been under pressure” and that “he had not made those statements”. On 4 November 1999 the Bonn Regional Court decided to open the trial against the applicant. In early June and December 2000, following a request of the Bonn Regional Court, a judge of the Istanbul State Security Court interviewed (kommissarische Vernehmung) inter alia C., the police officers who had arrested the applicant and three of the four police officers who had conducted C.’s interview on 10 May 1998. The interviews of C. and the police officers were held in the presence of the judges of the Bonn Regional Court sitting in the applicant’s case, the Bonn Public Prosecutor and the applicant’s defence who had the possibility to ask questions of the witnesses. During his interview C. alleged that the police officers had tortured him to extract the statements given by him on 10 May 1998. Furthermore he specified some symptoms which had been the result of his alleged ill-treatment. Subsequently, the judge of the State Security Court decided to reject all further questions concerning the alleged torture as they would not have any influence on the judgment. In the meantime, C. had instituted criminal proceedings against the police officers on the grounds of his alleged ill-treatment. On 26 October 2001 the Istanbul Criminal Court acquitted the police officers of the charges against them as there had been no credible evidence on the basis of which they could have been convicted. Between 27 March 2000 and 10 May 2002 the Bonn Regional Court held 103 hearings in which the applicant was represented by several lawyers. Between 1 March 2001 and 9 April 2001 the Regional Court repeatedly and unsuccessfully tried to summon C. to the hearings and offered to examine him via video conference, but C. rejected that offer. Therefore the Regional Court read out parts of the written records of C.’s statements made during the trial against the police officers before the Istanbul State Security Court. Furthermore it read out the written records of C.’s interview by the police officers in May 1998 and of the interview of the police officers by the Istanbul State Security Court in June and December 2000. On 10 May 2002 the Bonn Regional Court convicted the applicant of eight counts of importing and trafficking a substantial amount of drugs (between 80 and 90 kg of heroin each time) and passed a cumulative sentence of 15 years’ imprisonment. Furthermore it ordered the applicant’s preventive detention after the sentence had expired. The court found that the applicant had planned and organised the first five deliveries of heroin and conducted the heroin business himself as of the sixth delivery. The court set out the reasons for his conviction on 240 pages, thereby relying inter alia on the records of C.’s interview of 10 May 1998 and on the oral and written submissions of the police officers who had interviewed C. It found that C.’s submissions given during his first interview had been credible. The very general revocation of his first statement however as well as the fact that the other persons who had been arrested together with C. likewise revoked their submissions – on some occasions even with the same wording – and that their submissions converged more and more during the proceedings strongly suggested that they had colluded in relation to their testimonies as to the alleged ill-treatment. C.’s submissions and the statements of his accomplices were highly contradictory as to his alleged torture and the symptoms he had alluded to. Furthermore, it could not be proved from the judgment of the Istanbul Criminal Court, from the statements of C., the police officers before that court or the various medical reports that C. had in fact been ill-treated. Contrary to the applicant’s submissions and according to reports of Amnesty International and of the German Ministry of Foreign Affairs there is also no general assumption that Turkish police officers usually administer torture during their investigations. The Regional Court added that, “in this specific case, the police officers had not had a reason to ill-treat C. as they had already been granted a bonus for having seized the drugs. They thus would not have received any other financial advantage for obtaining further information from C. or his accomplices”. The court, being aware that a large part of the evidence was in fact indirect evidence, further found that the statements of C. and the police officers who had conducted his investigation had been confirmed inter alia by the submissions of witnesses whom the applicant had been able to examine, the content of the applicant’s and other witnesses’ telephone conversations, the flow of money which had resulted from the drug activities and which the applicant had carried out and, finally, by his own submissions which he had modified during trial and adapted according to the respective findings of the court. On 27 February 2004 the Federal Court of Justice reduced the conviction to five counts but upheld the sentence. It found that there had been no violation of the applicant’s right to question the witness as guaranteed by Article 6 §§ 1 and 3 (d) of the Convention. Thus, the applicant’s lawyers had been able to question C. during his interview in June 2000 where the latter had submitted that he had been subject to torture alluding to several symptoms in this regard. Further relevant new findings in this respect – a matter which the applicant did not contest – would not have been a realistic possibility. Moreover, the Regional Court had read out C.’s submissions made during the trial against the police officers, the judgment of the Istanbul Criminal Court and the findings concerning C.’s forensic examination. Furthermore, the Regional Court had intensively but unsuccessfully tried to interview C. during one of its oral hearings, but C. had declined the Regional Court’s offer to hear him via a video conference or to appear personally at the hearing. Finally, the Regional Court had based its findings not only on C.’s submissions, but on the testimony of numerous other witnesses and other means of evidence. On 5 April 2005 the Federal Constitutional Court refused to admit the applicant’s constitutional complaint arguing that the courts had based their findings on different corroborating evidence. In so far as one item of evidence alone was insufficient to establish that the applicant had committed the crime, the trial court had drawn its conclusions in a comprehensive and consistent manner from the entirety of the evidence at its disposal. Furthermore, the trial court had elaborated extensively on the question as to whether C.’s testimony could be used as evidence and had examined the credibility of C.’s submissions concerning his alleged torture. Finally, the defence had had the possibility to question C. during his interview before the Istanbul State Security Court. The fact that single questions had not been admitted was not open to objection as it was the procedural law of the state where the interview had taken place which decided on how to conduct the latter. On 26 April 2006 the Bonn Public Prosecutor’s Office rejected the motion of the applicant’s lawyer to be granted access to the case files relating to proceedings concerning the forfeiture (Einziehung) of the applicant’s assets. Section 69 § 3 of the Code of Criminal Procedure read in conjunction with section 136a of the Code of Criminal Procedure prohibits methods of examination which impair the witness’s freedom to determine and to exercise his or her will, such as ill-treatment, induced fatigue, physical interference, the administration of drugs, torment, deception, hypnosis or coercion and the threat of such measures. Statements obtained in violation of this prohibition may not be used, even if the witness has given his or her consent. Pursuant to the provisions of the Code of Criminal Procedure, a witness shall be examined in person at the main hearing if the proof of a fact in issue is based on that person’s observation. In principle, the witness’s examination may not be replaced by reading out the record of a previous examination or by reading out a written statement (Section 250 of the said Code). According to the constant case-law of the Federal Court of Justice, Section 250 permits the hearing of witnesses giving hearsay evidence. As an exception to the above-mentioned principle, the examination of a witness or co-accused may be replaced by reading out the written record of his previous examination by a judge. This is permitted if there are insurmountable impediments preventing the witness or co-accused from attending the main hearing for a long or indefinite period of time (Section 251 no. 2 of the said Code). The public prosecutor, the defendant and defence counsel have the right to be present at the examination of a witness by a judge outside the main hearing (Section 168c § 2 of the Code of Criminal Procedure). A defendant who is detained and is represented by counsel is only entitled to be present at hearings of witnesses conducted at the court of the place where he is in custody (Section 168c § 4 of the said Code).