Bora KOKTAS v Germany - 23674/08 [2011] ECHR 1475 (13 September 2011)

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The European Court of Human Rights (Fifth Section), sitting on
13 September 2011 as a Chamber composed of:

Dean Spielmann, President,
Karel Jungwiert,
Boštjan M. Zupančič,
Mark Villiger,
Isabelle Berro-Lefèvre,
Ann Power,
Angelika Nußberger, judges,
and Claudia Westerdiek, Section Rgistrar,

The applicant, Mr Bora Köktas, is a Turkish national who was born in 1964 and lives in Geldern. He was represented before the Court by
Mr J. Jansen, a lawyer practising in Dortmund.

The facts of the case, as submitted by the applicant, may be summarised as follows.

On 20 April 2004 K. was searched at the Dutch-German border.
The German border authorities detected a substantial amount of narcotic substances (cocaine) in his car. During customs interrogations, K. declared that a certain “Bora” had placed the drugs in the trunk of his car and had asked him to transport them to Germany. During further investigations, K. divulged more details about the person who had allegedly commissioned him, and identified him on two photographs. He confirmed his submissions during his hearing before the criminal court.

On 5 October 2004 the Kleve Regional Court convicted K. of aiding and abetting trafficking with narcotic substances and sentenced him to three years’ imprisonment. Under Article 31 of the Narcotics Act (see relevant domestic law, below), the criminal court mitigated the sentence with regard to the fact that K. had furnished information that led to the applicant’s identification.

During the main hearing before the Kleve Regional Court the applicant, who was represented by counsel, denied any involvement in the drug transport which had taken place on 20 April 2004. The applicant submitted a written document according to which he had been staying in an Istanbul hotel from 20 to 26 April 2004 together with C., whom he named as a witness for the defence. Alternatively, he requested the court to hear the hotel manager and the receptionist on duty on the relevant date as witnesses. The court rejected the applicant’s requests on the grounds that it had been impossible to obtain C.’s address. Furthermore, the court did not deem it necessary to hear the hotel manager or the receptionist. It noted that the name of the current hotel manager was known, but that he could not make any relevant statements, because he had joined the hotel only recently.
The names of the former manager and of the receptionist on duty at the relevant time were unknown. There was, furthermore, no indication that these persons should remember the check-in, made allegedly by the applicant in person, while no photocopy of his identity card was retained in the hotel’s records.

K., when heard as a witness, revoked his previous statements and declared that he had made a false statement in his own criminal proceedings. He knew the applicant, but had not seen him for ten years.
He had falsely accused the applicant in order to protect himself and his children from the true remitter.

The Regional Court subsequently heard the four customs officers who had interrogated K. in April 2004 as to the content of K.’s original statements.

On 24 April 2007 the Kleve Regional Court convicted the applicant of incitement to the importation of drugs and aiding and abetting
drug-trafficking and sentenced him to five years’ imprisonment.
The Regional Court based its assessment of the facts on the witness testimonies given by K., the custom officers, a translator and

“the other evidence which was taken according to the court’s minutes, in particular the Kleve Regional Court judgment issued against the witness K.”

On the basis of this evidence, the court was convinced that the applicant had commissioned K. to transport the narcotic substances to Germany.
This was primarily based on the extensive submissions made by K. during the criminal investigations against him, the content of which had been confirmed by the custom officers and by K. himself. The court considered that K.’s previous submissions had to be critically examined with regard to the fact that K. had made these submissions with the aim of being granted a mitigation of sentence. Even though K. had revoked his previous statements during the proceedings, the court was convinced that these previous statements reflected the truth. It noted that K. had named the applicant immediately after his arrest and the following day and had been able to furnish specific information about him. He had stated that the applicant’s phone number was registered on his mobile phone. Furthermore, he had recognised the applicant on two outdated photographs and had correctly remarked that the applicant presently had a different hairstyle.

Conversely, the submissions made by K. when heard as a witness in the instant proceedings had not been credible. The court noted that K. had correctly described the applicant in 2004, even though he purportedly had not seen him for several years. The applicant’s first name was registered in his mobile phone at the time of his arrest. Furthermore, it had not been necessary falsely to accuse the applicant, as it would have been sufficient not to name any remitter at all in order to avoid retaliation. There was no indication that K. had revealed the applicant’s name in order to secure a mitigation of sentence, since he did not know the applicant’s surname and could not expect that his information would lead to successful criminal investigations. Furthermore, based on the impression the court had gained of K. during his hearing as a witness, the court did not believe that K. was capable of acting with such a degree of forward planning. Finally, the applicant and K. made completely different submissions as to how they got to know one another, which further led to the conclusion that K. had stated the truth during his previous proceedings.

The court did not consider that the confirmation issued by the Istanbul hotel cast doubts on this conclusion. With the aid of the court interpreter, the court had contacted the hotel by telephone. The hotel manager subsequently submitted a photocopy of the guest register, a statement of costs and a photocopy of C.’s identity card. There was no copy of the applicant’s identity card. These documents merely proved that a person had checked into the hotel using the applicant’s name. They did not prove that the applicant was indeed present at the hotel at the relevant time.

It had not been possible to summon C. as a witness, as C. did not live at the address submitted by the applicant’s counsel. The interpreter’s internet searches and an enquiry with the Turkish Consulate were to no avail. It had, furthermore, not been possible to obtain the address of the Ankara registry official who could allegedly provide information about the witness’ whereabouts.

On 18 June 2007 the applicant filed an appeal on points of law which was rejected on 28 August 2007 by the Federal Court of Justice as being unfounded.

On 17 October 2007 the applicant filed a constitutional complaint.
He complained that the proceedings violated his right to a fair trial, because the Kleve Regional Court had failed sufficiently to examine the facts. It had, in particular, failed to make sufficient efforts to enquire C.’s whereabouts; furthermore, it had failed to make further enquiries into the identity of the reception clerk who had been on duty at the relevant time.

He further complained that his criminal conviction had been based on the text of the Kleve Regional Court’s judgment issued against K., even though this judgment had never been read out during the main hearing against the applicant. It followed that the applicant had been deprived of the possibility to comment on this evidence.

On 23 December 2007 the Federal Constitutional Court refused to accept the applicant’s complaint for adjudication. The court considered that the applicant’s complaint was inadmissible insofar as he complained about a violation of his right to a fair hearing, as the assessment of the facts in the criminal proceedings was not based on the text of the criminal conviction of the witness K., but on the custom officers’ statements.

The remainder of the constitutional complaint was unfounded.
The Federal Constitutional Court observed that the specific circumstances of the case necessitated that the assessment of evidence had to be particularly cautious. It noted, in particular, that the Regional Court had not gained an own impression of the witness K.’s previous statements, as these had been made in separate proceedings. However, the custom officers’ statements, together with the other corroborative evidence, could still be considered as a sufficient basis for the applicant’s conviction.
The assessment that the previous submissions reflected the truth was corroborated by the fact hat the applicant’s first name was registered on K.’s mobile phone and that K. had spontaneously identified the applicant on two photographs. The court further based its assessment on the impression that K. had made during the hearing, on K.’s statement, which the court considered to be contradictory and not credible, and on the applicant’s own statements. In particular, the fact that K. had stated during the hearing that he had not seen the applicant for ten years, taken together with the fact that K., according to the custom officers’ statement, had not only recognised the applicant on two outdated photographs, but had further remarked that the applicant had changed his hairstyle, allowed the court to draw the conclusion that K., contrary to his submissions, had had recent contact with the applicant at the time he had been shown the pictures.

The documents submitted by the Istanbul hotel were not capable of proving that the applicant had been present at the hotel at the relevant time. Furthermore, the criminal court had undertaken certain efforts in order to allow C. to be summoned as a witness. The criminal court had not been obliged to hear hotel staff as witnesses, as it could reasonably assume that these persons’ statements could only have marginal importance for the determination of the truth, having regard to the fact that the events dated back a considerable time and that it was not apparent that they were characterised by any memorable peculiarities.

Article 244 § 2 of the German Code of Criminal Procedure provides that, in order to establish the truth, the court shall, ex officio, extend the taking of evidence to all facts and means of proof relevant to the decision. Pursuant to Article 244 § 3, an application to adduce evidence may be rejected only under the conditions set out in that Article. It may be dismissed, inter alia, if the evidence is unobtainable (unerreichbar).

An application to take evidence by examining a witness who would have to be summoned from abroad may be rejected if the court, in the exercise of its proper discretion, deems the hearing of the witness not to be necessary for establishing the truth (Article 244 § 5).

Article 261 provides that the court shall decide on the result of the evidence taken according to its free conviction gained from the hearing as a whole. Documents serving as evidence, in particular previous criminal judgments, shall be read out during the main hearing (Article 249 § 1).

Under Article 31 of the Narcotics Act (Betäubungsmittelgesetz), the court can mitigate the sentence if the perpetrator deliberately discloses information which allows the investigating authorities to further uncover the punishable act as a whole.

The applicant complained under Article 6 § 3 (a) and (b) of the Convention that the Kleve Regional Court had failed to summon certain witnesses and that the court had based his criminal conviction on evidence which had not been properly introduced into the proceedings.

The applicant complained that the criminal proceedings against him had been unfair because the criminal court had failed to make sufficient efforts to summon the witnesses named by the defence and because his conviction was to a decisive extent based on written evidence which had not been read out during the main hearing. He was thus prevented from submitting comments on this evidence. As the requirements of Article 6 § 3 are to be seen as particular aspects of the right to a fair trial guaranteed by Article 6 § 1, the Court will examine the complaints under those two provisions taken together (see, among many other authorities, Windisch v. Austria,
27 September 1990, § 23, Series A no. 186; Lüdi v. Switzerland,
15 June 1992, § 43, Series A no. 238 and Dzelili v. Germany (dec.),
no. 15056/05, 29 September 2009) which, in so far as relevant, provide:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...

(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

(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;

The applicant complained that the Kleve Regional Court had rejected his request to hear witnesses for the defence even though there had been sufficient indications that the applicant had not been present at the crime scene at the relevant time. The efforts made by the Kleve Regional Court in order to obtain C.’s address had been insufficient. Furthermore, the court had failed to enquire the name of the reception clerk on duty at the Istanbul hotel at the relevant day.

The Court reiterates that, as a general rule, it is for the national courts to assess the evidence before them, as well as the relevance of the evidence which the defendant seeks to adduce. More specifically, Article 6 § 3 (d) leaves it to them, in principle, to assess whether it is appropriate to call certain witnesses. It does not require the attendance and examination of every witness on behalf of the accused. However, it is the task of the Court to ascertain whether the taking and assessment of evidence violated the principle of a full “equality of arms”, rendering the proceedings as a whole unfair (see, inter alia, Vidal v. Belgium, judgment of 22 April 1992, Series A no. 235, pp. 32-33, § 33 and Jorgic v. Germany, no. 74613/01, § 82, ECHR 2007 IX (extracts)).

The Court therefore has to determine whether the domestic courts’ refusal to call certain witnesses of the defence rendered the proceedings as a whole unfair. The Court notes, at the outset, that the provisions of the German Code of Criminal Procedure on the admissibility of evidence by witnesses apply to the prosecution and to the defence alike. There is thus no indication that their application unilaterally favoured applications to take evidence brought by the prosecution (compare Jorgic, cited above, § 85). Furthermore, the Court has already had the occasion to observe that a
pre-assessment of evidence such as proscribed in Article 244 § 5 of the German Code of Criminal Procedure does not necessarily entail a violation of the accused’s procedural rights (see Jorgic, cited above, §§ 84-86).

Turning to the circumstances of the instant case, the Court observes that the Kleve Regional Court rejected the applicant’s request to summon C. as a witness on the ground that the witness had been unobtainable. The Court notes that the criminal court had undertaken certain efforts during the main hearing to obtain the witness’ address, in particular by contacting the Turkish consulate and by trying to obtain the address of the Ankara registry official.

As regards the request to summon the Istanbul hotel manager and reception clerk on duty at the relevant time, the criminal court considered that the examination of these witnesses had not been necessary to establish the truth. The court had particular regard to the fact that the names of these persons were unknown and that there was, furthermore, no indication that they should remember the alleged check-in in the absence of any noteworthy details, in the absence of a photocopy of the applicant’s identity card and after a considerable period of time had elapsed.

The Court concludes that the Regional Court has given relevant reasons for rejecting the applicant’s requests to summon witnesses for the defence. Therefore, the Court cannot find that the criminal courts had acted arbitrarily or in violation of the principle of equality of arms. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

The applicant further complained that the Regional Court had based its judgment to a considerable degree on the judgment against the witness K. and on the protocol of K.’s previous statements during police investigations. However, these documents had never been introduced to the proceedings against the applicant, as they had not been read out during the main hearing. It followed that the applicant had been deprived of the possibility to take note of this evidence and to prepare his defence against it.

The Court reiterates that all evidence must normally be produced in the presence of the accused at a public hearing with a view to adversarial argument. Possible exceptions to this principle must not infringe the rights of the defence (see, amongst others, Lucà v. Italy, no. 33354/96, § 39, ECHR 2001 II). As a rule, these rights require that the accused should be given an adequate and proper opportunity to challenge and question a witness against him, either when he makes his statement or at a later stage of the proceedings (see, amongst others, Lüdi, cited above, § 49; Dzelili, cited above and Van Mechelen and Others v. the Netherlands,
23 April 1997, § 51, Reports of Judgments and Decisions 1997 III).

Turning to the circumstances of the instant case, the Court observes that the Kleve Regional Court, when convicting the applicant, did not primarily rely on the judgment issued in the proceedings against K. or on the minutes of K.’s earlier statements. The statements made by K. during earlier investigations had been introduced into the criminal proceedings through the testimony of the customs officials who had interrogated K. following his arrest in April 2004. Furthermore, K. had confirmed the content of his previous statements when heard by the Kleve Regional Court. It follows that the applicant, who was represented by counsel, had the possibility to obtain full knowledge of K.’s previous statements. Under these circumstances, the Court does not consider that the rights of the defence were considerably impaired by the fact that neither the judgment against K. nor the minutes of K.’s former interrogations had been formally read out during the main hearing.

The Court further observes that K. was heard as a witness during the main hearing against the applicant. There is no indication that the applicant was in any way prevented from challenging and questioning the witness.
In this respect, this case must be distinguished from the category of cases adjudicated by the Court in which the criminal courts relied on testimonies given by absent or anonymous witnesses (compare for example
Dzelili and Windisch, both cited above; Pacula v. Latvia, no. 65014/01,
15 September 2009).

The Court further notes that the Kleve Regional Court did not attach credibility to the statements made by K. during the proceedings against the applicant, but relied on K.’s earlier statements during his own proceedings. The Court reiterates, at the outset, that the assessment of evidence falls into the primary competence of the domestic courts. The Court notes that the Kleve Regional Court and the Federal Constitutional Court had been aware of the fact that the specific circumstances of the case, in particular the fact that the witness K. had revoked his previous statements, necessitated a particularly cautious assessment of the evidence. The Regional Court thoroughly examined the testimony given by K. during the main hearing, thereby taking into accounts the court’s own impression of the witness. They also considered the option that K.’s original statement might have been motivated by the possibility to obtain a mitigation of sentence under the Narcotics Act. Furthermore, the criminal court gave relevant reasons as to why it attached more credibility to K.’s previous testimony, in particular the fact that the witness had recognised the applicant on two outdated photographs and had been able correctly to describe his hairstyle, that the applicant’s first name had been registered in K.’s mobile phone and the contradictions between K.’s and the applicant’s statements as to how they had met. Under these circumstances, the Court does not consider that the assessment of evidence in the applicant’s case had been in any way arbitrary.

The Court concludes that the applicant’s procedural rights have been sufficiently safeguarded during the criminal proceedings and that the proceedings as a whole cannot be considered to have been unfair. It follows that the applicant’s complaint under Article 6 of the Convention is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

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You are here: BAILII >> Databases >> European Court of Human Rights >> Bora KOKTAS v Germany - 23674/08 [2011] ECHR 1475 (13 September 2011) URL: http://www.bailii.org/eu/cases/ECHR/2011/1475.html Cite as: [2011] ECHR 1475