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SECOND
SECTION
CASE OF ÖZCAN ÇOLAK v. TURKEY
(Application
no. 30235/03)
JUDGMENT
STRASBOURG
6 October
2009
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Özcan Çolak
v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Ireneu Cabral Barreto,
Vladimiro
Zagrebelsky,
Danutė Jočienė,
Dragoljub
Popović,
András Sajó,
Işıl
Karakaş, judges,
and Sally
Dollé, Section
Registrar,
Having
deliberated in private on 1 September 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 30235/03) against the Republic
of Turkey lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Turkish national, Mr Özcan Çolak
(“the applicant”), on 1 August 2003.
- The
applicant, who had been granted legal aid, was represented by Mr F.N.
Ertekin and Mr T. Ayçık, lawyers practising in Istanbul.
The Turkish Government (“the Government”) were
represented by their Agent.
- On
11 February 2008 the President of the Second Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1974 and lives in Tekirdağ.
A. The detention in police custody and the medical
certificates concerning the alleged ill-treatment of the applicant
- On
5 November 1999, at around 10 a.m., the applicant was arrested and
taken into custody in Tekirdağ on suspicion of membership of an
illegal armed organisation, namely the MLKP
(Marxist-Leninist
Communist Party).
- On
the same day, at around 2 p.m., the applicant was examined by a
doctor who found no signs of ill-treatment on his body.
- On
the same day, at 2.10 p.m., the applicant was handed over to police
officers at the Erzincan Security Headquarters and transferred to
Erzincan by car.
- On
6 November and 7 November 1999 the applicant took part in two
reconstructions of events in the mountains in order to show where he
had buried guns.
- On
7 November 1999 the applicant was questioned by two police officers
at the Anti-Terrorist Branch of the Erzincan Security Headquarters,
where he gave a detailed account of the activities he had taken part
in within the MLKP.
- On
an unspecified date the applicant signed a pre-printed document which
indicated, inter alia, that he had the right to remain silent.
- On
9 November 1999 the applicant was examined by a doctor at the
Erzincan State Hospital who found no signs of ill-treatment on his
body.
- On
the same day the applicant was brought before the
Erzincan Magistrates' Court where, in the presence of his lawyer
appointed by the Bar, he submitted that he was unfit for questioning
because he had been subjected to ill-treatment in police custody. The
applicant requested to be transferred to a hospital for a medical
examination. The judge noted a purple bruise and redness on the
applicant's left eye and that he had difficulty in standing upright
and speaking, and ordered him to be transferred to the Forensic
Medicine Institute for an examination. On the same day, the court
remanded the applicant in custody.
- On
9 November 1999 the applicant was examined by a doctor at the
Erzincan State Hospital who found no signs of ill-treatment on his
body.
- On
12 November 1999 the applicant asked to be released. In his request
he maintained that he had been ill-treated both by the police
officers at the Tekirdağ Security Headquarters and the
Erzincan Security Headquarters. He gave details as to the form of the
treatment, namely beatings, hanging, and squeezing of the genital
organs, as well as when they had occurred. The
applicant's objection to his remand in custody was dismissed by the
Erzincan Magistrates' Court on the same day.
- In
the meantime, on 10 November 1999, the applicant requested to be
examined by a doctor at the prison clinic.
- On
the same day, at 5.35 p.m., the applicant was examined by the prison
doctor, who noted that he had under the left eye a fading light green
line of about 1 to 3cm which looked like either a bruise or a hyper
pigmentation. He reckoned that it dated from seven to ten days
previously. The doctor did not note any other signs of beating or
violence.
B. The criminal investigation into the applicant's
allegations of ill treatment
- An
investigation into the alleged ill-treatment was instigated by the
Erzincan public prosecutor.
- On
28 November 1999 the prosecutor heard evidence from the applicant,
who gave details as to where, when and what forms of ill treatment
he had been subjected to. In particular, he claimed that his eye
injury had resulted from blows he had received from the driver of the
car when he was being transferred to Erzincan. He further repeated
that he had been tortured during interrogation, both in Tekirdağ
and in Erzincan.
- On
22 November 1999 the public prosecutor heard evidence from the
doctors at Erzincan State University who had examined the applicant.
They both affirmed that they had conducted the medical examination in
accordance with the law and had not seen any signs of ill-treatment
on the applicant.
- On
2 December 1999 the prosecutor heard Mr Y.T., one of the accused
arrested and detained at the same time as the applicant. He submitted
that since he had been blindfolded the whole time he had not seen
anyone ill-treating the applicant. He maintained that he had not been
ill-treated by police officers and that he had not heard any
indicative noises.
- On
21 December 1999 the prosecutor heard evidence from an accused police
officer D.A. He submitted that he had questioned the applicant on
7 November 1999 and that at that time the applicant had had a
fading bruise under his left eye which appeared to be a few days old.
He did not know how it had happened but the applicant had not been
ill-treated by him, whether or not with someone else present.
- On
22 December another police officer was heard who denied the
allegations of ill-treatment and claimed that the applicant's eye
injury might be a swelling due to the twenty-five hours' travelling,
lengthy questioning and two trips to the mountains for site visits.
- On
18 January 2000 the prosecutor heard Mr E.Ç., the doctor who
had examined the applicant in prison. The doctor affirmed that they
had conducted the medical examination in accordance with the law and
had not seen any signs of ill-treatment on the applicant apart from
the light green area, which could be seen only if looked at
carefully, under his eyes. In this connection, he submitted that he
did not think that this was the result of ill-treatment since the
area was not large. He considered that it could have been the result
of lack of sleep or a local infection.
- On
21 February 2000 the prosecutor heard Mr I.K., one of the accused
arrested and detained at the same time as the applicant. He also
submitted, inter alia,
that since he had been blindfolded he had not seen anyone
ill treating the applicant. He maintained that he had not heard
any noise indicating ill-treatment. However, he stated that, since he
did not know where the applicant had been held, he could not be sure
if he could have heard something in any case.
- On
24 March 2000 the Erzincan public prosecutor gave a decision of
non-prosecution concerning the two police officers at the
Anti-Terrorist Branch of the Erzincan Security Headquarters on
account of lack of evidence. In his decision, the prosecutor took
particular note of the testimony of the doctors and the other
suspects who had been detained at the same time as the applicant on
the same grounds.
C. The criminal proceedings against the applicant
- In
the meantime, on 13 December 1999, the public
prosecutor at the Istanbul State Security Court filed a bill of
indictment against the applicant, accusing him of membership of the
illegal armed organisation MLKP and of throwing a Molotov cocktail in
a public place. The charges were brought under Articles 168 § 2
and 264 §§ 6 and 8 of the Criminal Code.
- On
17 January 2000 the “trio
protocol”, prepared jointly by the ministries of Justice,
Health and Interior to introduce security measures on the access of
lawyers to prisons, came into force. The Turkish Bar Association,
considering such measures to be, inter
alia, in breach of defence rights,
gave a decision indicating to lawyers not to go into prisons while
such measures remained in place.
- In
the meantime, on 27 December 1999 the criminal proceedings against
the applicant commenced before the Istanbul State Security Court. In
the course of the trial the applicant repeatedly denied any
involvement with the MLKP and alleged that he had been tortured and
forced to make self-incriminating confessions during his police
interrogations. He rejected the findings of the medical reports
included in the case file. The applicant also submitted that he had
encountered difficulties in having access to his lawyer due to the
stringent measures introduced by the “trio protocol”.
Before the court the applicant's lawyer further maintained that,
apart from one person, all other suspects who had given statements
against the applicant had been acquitted before other courts.
- On
4 September 2002 the Istanbul State Security Court found the
applicant guilty of membership of an illegal armed organisation and
sentenced him to twelve years and six months' imprisonment. In so
doing, they took into account the evidence in the case file,
including the applicant's statements given in police custody, the
verbatim records of the reconstruction of the events and the
statements of other suspects or convicts given to the police or
another court. In particular, the court considered that, in the
absence of any indication of ill-treatment noted in the medical
report, the applicant's statements given to the police were sincere
and truthful.
- On
4 February 2003 the Court of Cassation held a hearing and upheld the
judgment of the first-instance court. The applicant's request for a
rectification of this decision was dismissed by the principal public
prosecutor at the Court of Cassation on 20 March 2003.
D. Subsequent developments
- Following
the adoption of the new Criminal Code, the execution of the
applicant's sentence was suspended by the Erzincan Assize Court on
22 October 2004. He was released from prison.
- On
10 April 2006 by an additional judgment the Erzincan Assize Court
reduced the applicant's original sentence to six years and three
months' imprisonment. This decision became final on 10 May 2006.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
relevant domestic law and practice in force at the material time as
well as recent developments can be found in the following judgments:
Kolu v. Turkey (no. 35811/97, § 44, 2 August 2005),
and Salduz v. Turkey ([GC], no. 36391/02, §§
27-31, 27 November 2008).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant complained under Article 6 §§ 1 and 3 (b) and (c)
of the Convention that he had been denied a fair hearing as the
Istanbul State Security Court admitted as evidence and convicted him
on the basis of statements, extracted under torture, which he had
later retracted and which had been obtained during the preliminary
investigation when he did not have access to a lawyer; that the
statements of witnesses used as evidence to convict him had also been
obtained under duress; that neither he nor the trial court examined
these witnesses; that he was deprived of adequate legal assistance
throughout the proceedings due to the difficulties posed by the
implementation of the “trio protocol”; that the
prerogative of the public prosecutor to evaluate applications for
rectification breached the principle of equality of arms and that the
decision of the trial court lacked reasoning.
- The
applicant further complained under Articles 6 and 8 of the Convention
that his written correspondence with his lawyer had regularly been
subjected to interference in so far as it had been opened and
inspected by the prison authorities.
- The
Court will examine these complaints under Article 6 §§ 1
and 3 (b) and (c), which provide as follows:
“1. In the determination ...of any
criminal charge against him, everyone is entitled to a fair
...hearing .....
3. Everyone charged with a criminal offence
has the following minimum rights:
(b) to have adequate time and facilities for
the preparation of his defence;
(c) to defend himself in person or through
legal assistance of his own choosing ...”
A. Use by the Istanbul State Security Court of
statements allegedly taken under torture, in the absence of legal
assistance
1. Admissibility
- The
Government asked the Court to dismiss the applicant's complaint of a
lack of legal assistance during his time in police custody for
failure to comply with the six-month rule (Article 35 § 1 of the
Convention), on the ground that the applicant had failed to lodge his
application within six months of the date on which his police custody
ended.
- The
Court reiterates that it has already examined and rejected the
Government's preliminary objections in similar cases (see, in
particular, Çimen v. Turkey, no. 19582/02, § 22, 3
February 2009). The Court finds no particular circumstances in the
instant case which would require it to depart from its findings
concerning the above-mentioned applications.
- Consequently,
the Court rejects the Government's preliminary objection.
- Moreover,
the Court considers that this part of the application is not
manifestly ill-founded within the meaning of Article 35 § 3 of
the Convention. It further notes that it is not inadmissible on any
other grounds. It must therefore be declared admissible.
2. Merits
- The
Court reiterates that its duty, according to Article 19 of the
Convention, is to ensure the observance of the engagements undertaken
by the Contracting States to the Convention. In particular, it is not
its function to deal with errors of fact or of law allegedly
committed by a national court unless and in so far as they may have
infringed rights and freedoms protected by the Convention. While
Article 6 guarantees the right to a fair hearing, it does not lay
down any rules on the admissibility of evidence as such, which is
primarily a matter for regulation under national law (see Schenk
v. Switzerland, 12 July 1988, §§ 45-46, Series A no.
140).
- It
is therefore not the role of the Court to determine, as a matter of
principle, whether particular types of evidence – for example,
evidence obtained unlawfully in terms of domestic law – may be
admissible or, indeed, whether the applicant was guilty or not. The
question which must be answered is whether the proceedings as a
whole, including the way in which the evidence was obtained, were
fair. This involves an examination of the “unlawfulness”
in question and, where violation of another Convention right is
concerned, the nature of the violation found (see, among others,
Jalloh v. Germany [GC], no. 54810/00, § 95, 11 July
2006).
- The
Court has already held that the use of evidence obtained in violation
of Article 3 in criminal proceedings could infringe the fairness of
such proceedings even if the admission of such evidence was not
decisive in securing the conviction (ibid, § 99,
and Söylemez v. Turkey, no. 46661/99, § 23,
21 September 2006). It has further held that the absence of an
Article 3 complaint does not preclude the Court from taking into
consideration the applicant's allegations of ill-treatment for the
purposes of deciding on compliance with the guarantees of Article 6
(see Örs and Others v. Turkey, no. 46213/99, § 60,
20 June 2006, and Kolu v. Turkey, no. 35811/97, §
54, 2 August 2005).
- Moreover, the Court reiterates that the privilege
against self-incrimination or the right to remain silent are
generally recognised international standards which lie at the heart
of a fair procedure. Their aim is to provide an accused person with
protection against improper compulsion by the authorities and thus to
avoid miscarriages of justice and secure the aims of Article 6 (see
John Murray v. the United Kingdom, 8 February 1996, §
45, Reports of Judgments and Decisions 1996 I). This
right presupposes that the prosecution in a criminal case seek to
prove their case against the accused without resort to evidence
obtained by coercion or oppression in defiance of the will of the
accused (see Jalloh, § 100, and Kolu,
§ 51, both cited above). Early access to a lawyer is part of the
procedural safeguards to which the Court will have particular regard
when examining whether a procedure has extinguished the very essence
of the privilege against self-incrimination (see Salduz,
cited above, § 54).
- In
the instant case the applicant was arrested on 5 November 1999 in
Tekirdağ. On the same day, he was transferred by car to Erzincan
where he remained in custody until 9 November 1999. During this time
the applicant was questioned and taken twice for a reconstruction of
events in the mountains, where he made a number of incriminating
statements (see paragraphs 8 and 9 above).
- In
this connection, the Court observes that the applicant had made these
statements in circumstances where he had not been allowed access to a
lawyer. The Court further observes that the applicant subsequently
denied the accuracy of those statements throughout the proceedings
before the domestic courts, alleging that he had been tortured and
ill-treated. In this connection, the Court observes that the
restriction imposed on the applicant's right of access to a lawyer at
that stage was systemic and applied to anyone held in custody in
connection with an offence falling under the jurisdiction of the
State Security Courts (see Salduz, cited above, §
56). In the Salduz judgment, the Court found that this in
itself falls short of the requirements of Article 6 of the Convention
(ibid).
- Moreover,
the Court is not convinced by the presence of an undated pre printed
and signed document in the case file to demonstrate with certainty
that the applicant was properly informed of his right to remain
silent (see paragraph 10 above). Finally, although the criminal
investigation into the applicant's allegations of ill-treatment led
to the prosecutor's decision not to commit any police officer to
trial on account of a lack of evidence (see paragraph 25 above), and
despite the fact that the applicant has failed to object to that
decision before the Assize Courts, serious doubts persist in the
Court's view as to the attitude adopted by the police officers during
the applicant's questioning. In this connection, the Court takes note
of the applicant's consistent and detailed version of events, the
testimony of a police officer who alluded to the fact that the
applicant might have been exhausted from “a twenty-five-hour
car journey, lengthy questioning and being taken to the mountains
twice” (see paragraph 22 above), the testimonies of the two
detainees Mr I.K. and Mr Y.T., that they had been kept blindfolded
during their detention (see paragraphs 20 and 24 above), the
applicant's poor appearance observed both by the applicant's lawyer
appointed by the Bar and by the judge at the Magistrates' Court at
the end of his detention in police custody (see paragraph 12 above)
and the bruise on the applicant's left eye noted by the prison doctor
a day after the end of his detention in police custody (see paragraph
16 above).
- Nevertheless,
the Court observes that, although the applicant subsequently
retracted his statements before the trial court, claiming that they
had been extracted under torture and ill-treatment, the
first-instance court found the applicant's statements made to the
police to be sincere and truthful and attached weight to them in
convicting the applicant, despite the fact that Turkish legislation
does not usually attach consequences to any confessions obtained
during questioning but denied in court which are decisive for the
prospects of the defence (see paragraph 33 above).
- In
these circumstances, the Court finds that the use of the applicant's
statements obtained purportedly under torture and ill-treatment
during the preliminary investigation, in the absence of his lawyer,
in the criminal proceedings brought against him, rendered his trial
as a whole unfair.
- It
follows that there has been a violation of Article 6 § 3 (c) of
the Convention in conjunction with Article 6 § 1 in the present
case.
B. Other alleged breaches of the fairness of the
proceedings
- The
Government asked the Court to dismiss the applicant's complaint
concerning his alleged inability to examine or to have examined
witnesses for failure to comply with the requirement of exhaustion of
domestic remedies, since he had never asked the trial court to
examine them or to have them examined.
- The
Court considers the Government's objection above to be so closely
linked to the substance of the applicant's complaints under this head
that it cannot be detached from it. Therefore, to avoid prejudging
the merits of the said complaint, these questions should be examined
together. As the applicant's complaints are not inadmissible on any
other grounds, they must therefore be declared admissible.
- Having
regard to the facts of the case, the submissions of the parties and
its finding of a violation of Article 6 §§ 1 and 3 (c) of
the Convention above (see paragraph 50 above), the Court considers
that it has examined the main legal question raised under Article 6
of the Convention. It concludes therefore there is no need to make a
separate ruling on the applicant's remaining complaints under this
provision (see, for example, Juhnke v. Turkey, no. 52515/99, §
94, 13 May 2008, and Getiren v. Turkey, no. 10301/03,
§ 132, 22 July 2008 and the cases referred to therein).
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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.”
A. Damage
- The
applicant claimed 20,650 euros (EUR) in respect of pecuniary damage
and EUR 15,000 in respect of non-pecuniary damage.
- The
Government contested the amounts.
- On the question of pecuniary damage, the Court
considers that it cannot speculate as to what the outcome of
proceedings compatible with Article 6 §§ 1 and 3 (c)
would have been. It therefore makes no award in respect of pecuniary
damage.
- As
regards non-pecuniary damage, ruling on an equitable basis, the Court
awards the applicant EUR 2,000.
- The
Court further considers that the most appropriate form of redress
would be the retrial of the applicant in accordance with the
requirements of Article 6 of the Convention, should he so
request (see Salduz,
cited above, § 72).
B. Costs and expenses
- The
applicant also claimed EUR 744 for the costs and expenses incurred
before the domestic courts and EUR 8,247 for those incurred before
the Court. In support of his claims, the applicant submitted invoices
regarding various expenses and legal fees and a fee agreement
prepared on the basis of the Istanbul Bar Association's schedule of
costs.
- The
Government contested the amounts.
- 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, regard being had to
the documents in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 3,700 covering costs
under all heads.
C. Default interest
- The
Court considers it appropriate that the default interest 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
- Declares the application admissible;
- Holds that there has been a violation of Article
6 §§ 1 and 3 (c) of the Convention on account of the use by
the Istanbul State Security Court of the applicant's statements
allegedly taken under torture, in the absence of legal assistance;
- Holds that it is not necessary to examine
separately the applicant's other complaints under Article 6 of the
Convention;
- Holds
(a) that the respondent State is to pay the applicant,
within three months from the date on which the judgment becomes final
according to Article 44 § 2 of the Convention, the
following amounts to be converted into Turkish liras at the rate
applicable at the date of settlement:
(i) EUR
2,000 (two thousand euros) in respect of non pecuniary damage,
plus any tax that may be chargeable;
(ii) EUR
3,700 (three thousand seven hundred euros) in respect of costs and
expenses, plus any tax that may be chargeable to the applicant;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 6 October 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the concurring opinion of Judge
Andras Sajó is annexed to this judgment.
S.D.
F.T.
CONCURRING OPINION OF JUDGE SAJÓ
I
voted with the majority in finding a violation in this case: in view
of the applicable precedent (Salduz v. Turkey [GC], no.
36391/02, 27 November 2008), the restrictions on the applicant's
access to a lawyer amount to a violation of the Convention.
However,
I cannot agree with the Court's finding that the use in the criminal
proceedings against the applicant of statements purportedly obtained
from him by torture and ill-treatment during the preliminary
investigation, in the absence of his lawyer, rendered his trial as a
whole unfair. The Court's conclusion rests on the authority of Örs
v. Turkey, no. 46213/99, 20 June 2006. I do not see the
facts of that case as being analogous to the present one. In Örs
the physicians found serious bruises on the body of several accused
who complained, independently, of torture, to the extent that
criminal proceedings were initiated against the alleged perpetrators,
although the allegations of torture were not subsequently established
because the crime allegedly committed by the police officers was
found to fall under the statute of limitations. In the present case
the applicant was examined by several doctors, including doctors (!)
outside the prison system, and they found nothing. Four days after
the applicant's arrest a judge noticed a purple bruise and redness on
his left eye, while on his sixth day in detention a fading
light-green line was observed by a prison doctor, who estimated that
it related to an event occurring seven to ten days earlier or to
hyperpigmentation, lack of sleep or a local infection. An
investigation was instigated into the alleged ill-treatment. The
applicant's co-detainees stated that they had no knowledge of
ill-treatment of the applicant, nor did they complain of
ill-treatment themselves. This led to the prosecutor's decision not
to commit any police officer for trial, on account of the lack of
evidence (see paragraph 25); the applicant did not lodge any
objection against that decision with the Assize Courts.
It
follows that the decisive factual elements in Örs are
absent in the present case. Nevertheless, the Court found the
applicant's “consistent and detailed version of events”
to be sufficient evidence of torture, in particular as it was
“corroborated” by a statement from a police officer who
alluded to the “lengthy questioning” of the applicant.
The Court found that the applicant's version was further
“corroborated” by the statement from the same police
officer to the effect that the applicant was subjected to a
twenty-five-hour car journey. I cannot see how “lengthy
questioning” (of unspecified duration without signs of sleep
deprivation), or a journey in relation to which there is not even any
suggestion of humiliating or abusive conduct, could contribute to
torture or corroborate the applicant's “consistent”
allegations. Incidentally, not even the applicant himself attributed
the alleged bruise to the officers who had questioned him and
obtained his confession. To my mind, information of this kind proves
nothing and is incapable of meeting the requirements of burden of
proof. Further, in the present case, in contrast to the careful
formulation in Örs (§ 61), where the fairness
of the trial as a whole was undermined by the fact that the
procedural guarantees could not counter the confessions supposedly
(“pretenduement”) [or even probably] obtained
under torture, in the absence of a lawyer and on the basis of a
misreading of the rules on self incrimination, in the present
case the Court concludes that “the use of the applicant's
statements obtained purportedly under torture and ill treatment
during the preliminary investigation, in the absence of his lawyer,
in the criminal proceedings brought against him, rendered his trial
as a whole unfair” (see paragraph 49). This conclusion is
reached without considering the role of other procedural guarantees
and of possible non tainted evidence. It is not the role of the
Court to determine, as a matter of principle, whether particular
types of evidence – for example, evidence obtained unlawfully
in terms of domestic law – may be admissible or, indeed,
whether the applicant was guilty or not, though I personally believe
that the Court should require very stringent guarantees in cases
where exclusionary rules do not apply in a national system. The
question which must be answered is whether the proceedings as a
whole, including the way in which the evidence was obtained, were
fair. This involves an examination of the “unlawfulness”
in question (see, among others, Khan v. the United Kingdom,
no. 35394/97, § 34, ECHR 2000 V, and Jalloh v. Germany
[GC], no. 54810/00, § 95, ECHR 2006 IX). The Court
takes no position on the issue whether the statements given by the
applicants while in custody served as the main evidence in the
judgment convicting the applicant, as required in Hacı Özen
v. Turkey (no. 46286/99, § 103, 12 April 2007). The use of
evidence obtained in violation of Article 3 in criminal proceedings
infringes the fairness of such proceedings even if the admission of
the evidence concerned was not decisive in securing the conviction;
however, in the present case the facts simply do not support
the finding of such a violation.
