KOHEN A OSTATNÍ proti Turecku

SECOND SECTION

DECISION

Application no. 66614/10
Cemil KOHEN against Türkiye
and 2 other applications
(see list appended)

The European Court of Human Rights (Second Section), sitting on 28 February 2023 as a Committee composed of:

Pauliine Koskelo, President,
Lorraine Schembri Orland,
Davor Derenčinović, judges,
and, Dorothee von Arnim, Deputy Section Registrar,

Having regard to:

the applications against the Republic of Türkiye lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by the applicants listed in the appended table (“the applicants”) on 20 October 2010;

the decision to give notice of several of the applicants’ complaints under Article 6 of the Convention concerning the fairness of the criminal proceedings against them to the Turkish Government (“the Government”), represented by their Agent, Mr Hacı Ali Açıkgül, Head of the Department of Human Rights of the Ministry of Justice of the Republic of Türkiye, and to declare inadmissible the remainder of the applications;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The applications concern the alleged unfairness of criminal proceedings against the applicants owing to (i) the admission by the trial court of statements made by certain co-defendants (Y.S.U., B.A., A.K., M.O.E., A.S., M.K., K.M.K., and E.Ö.) allegedly under duress and without a lawyer being present; (ii) the alleged breach of the principle of equality of arms in relation to the collection and examination of certain expert reports at the trial stage; and (iii) the trial court’s failure to specify the documents on the basis of which it asked the defendants to make additional defence submissions.

2. On 16 September 2009 the Ankara Assize Court found the applicants guilty of committing acts of forgery as part of the activities of a fraudulent and fictitious export scheme and sentenced them to various terms of imprisonment. In establishing the existence of a fictitious and fraudulent export scheme headed by the first applicant in the case of Kohen and Others v. Turkey (nos. 66616/10 and 3 others, 7 June 2022), the trial court relied in particular on the following elements:

(i) the various expert reports drawn up by tax auditors, tax inspectors, and the Ministry of Finance, attesting, in particular, to the following facts: (a) that manufacturing and sales of goods had not taken place, (b) that the importers who were indicated on the export invoices had either not existed or had denied that the transactions forming the basis of the exports had taken place, (c) that the payment of the fees for the exports had not been made, and (d) that the customs declarations attesting to the exit of goods through customs had not reflected the reality of the situation;

(ii) statements by N.S. to the effect that certain low-quality products had been used as exported goods, which had been kept in customs storage located in the destination countries and had then been “imported” to Türkiye;

(iii) written materials found during searches of premises belonging to the first applicant in the case of Kohen and Others (cited above), who was the brother of the first applicant in the present case.

3. As regards the involvements of the applicants in the present case in the above-mentioned fictitious and fraudulent scheme, the trial court found it established that the first and second applicants were board members of a customs brokerage company that was part of the scheme, entrusted with the task of undertaking customs-related procedures, and that the third applicant was the authorised signatory of a certain company, S., which was also part of the scheme. In doing so, the trial court also relied on the following evidence: (i) in respect of the first applicant: statements made by E.M.K., E.D., E.K., N.T. and B.A as well as the expert report finding it established that certain documents relating to the exports carried out by the S. company had contained his signatures; (ii) in respect of the second applicant: statements made by Ö.K., M.B., E.M.K., Y.S.U., U.U., E.D., E.K., N.T., Ş.P., H.Ö., H.Y., E.Ö. and Y.K., as well as expert reports indicating that numerous documents used by the companies within the fictitious and fraudulent export scheme contained his signature, and (iii) in respect of the third applicant: statements made by Ö.K., M.B., E.M.K., Y.S.U., U.U., E.D., E.K., N.T., M.D. and S.K.

4. On 21 April 2010 the Court of Cassation upheld the first-instance court’s judgment in so far as it concerned the applicants.

5. The Court has already examined almost identical complaints lodged by the applicants in Kohen and Others (cited above), who were tried and convicted in the same set of criminal proceedings as the applicants in the present case, and it either found no violation of Article 6 of the Convention (use by the trial court of the statements made in the absence of a lawyer) (ibid., §§ 59-64) or declared the complaints inadmissible as being manifestly ill-founded (in relation to the items (ii) and (iii) mentioned in paragraph 1 above) (ibid., §§ 65-77).

THE COURT’S ASSESSMENT

6. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.

7. Even though the first complaint as set out in the application forms submitted by the applicants concerned the statements made by co-defendants Y.S.U., B.A., A.K., M.O.E., A.S., M.K., K.M.K., and E.Ö. (the third applicant in the above-mentioned Kohen and others case), the applicants’ lawyer extended that complaint in his observations on the admissibility and merits of the case to cover the statements made by the remaining applicants in Kohen and Others (cited above), namely E.M.K., N.T. and H.Ö., and by a certain M.B. and Ö.K.

8. In the Court’s view, the new complaints which the applicants raised after notice of the case had been given to the Government are not an elaboration on their original complaint to the Court as they concern previously unmentioned issues with respect to the fairness of the proceedings (see Andersena v. Latvia, no. 79441/17, § 80, 19 September 2019). It follows that this part of the applications was lodged out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

9. The general principles with regard to the first complaint about the use, in convicting the applicants, of statements made by certain co-defendants allegedly under duress and without a lawyer being present, may be found in Beuze v. Belgium ([GC], no. 71409/10, §§ 119-50, 9 November 2018), Stephens v. Malta (no. 3) (no. 35989/14, §§ 64-67, 14 January 2020) and Erkapić v. Croatia (no. 51198/08, §§ 72-73, 25 April 2013).

10. The Court has already examined an almost identical complaint in respect of the same criminal proceedings in Kohen and Others (cited above, §§ 59‑64, and in particular § 61) and held that the use of the statements in question, made inter alia by certain co-defendants without a lawyer being present, was not such as to irretrievably prejudice the overall fairness of the criminal proceedings against the applicants in that case. In doing so, the Court had regard in particular to the steps taken by the trial court to carefully scrutinise the reliability and accuracy of the statements that had been made in particular by co-defendants Ö.K., Y.S.U., B.A., M.K., M.B., K.M.K. and E.Ö. (see Kohen and others, cited above, § 27), as well as the abundant evidence relating to the accusations levelled against the applicants which had been collected prior to and independently of the statements made without a lawyer being present.

11. Indeed, the Court held that the criminal investigation in respect of the applicants in the above-mentioned Kohen and Others case had not commenced with, or as a result of, the statements that they had made without legal assistance. Prior to the statements given by the co-accused, numerous expert reports had already been obtained in which the fictitious and fraudulent export scheme, the companies which operated it or cooperated with it, its modus operandi, the accuracy of the statements of financial transactions and customs activities, and the information concerning the alleged import companies were set out in comprehensive detail. Additionally, a large number of other people also made statements on various dates explaining the roles played by certain persons in the scheme. These considerations may also be transposed to the present case, given that the parties’ submissions did not include any element capable of calling into question the validity of those findings.

12. Furthermore, when assessing the situation of each applicant in a separate section of its judgment, the trial court also relied on, in addition to the various expert reports, statements made by other individuals in respect of whom the applicants had not lodged a valid complaint. For example, when convicting the first applicant, the trial court also relied on statements made by E.M.K., E.D., E.K. and N.T. as well as the expert report finding it established that certain documents relating to the exports carried out by the S. company had contained his signatures. In respect of the second applicant, the trial court relied on statements made by Ö.K., M.B., E.M.K., U.U., E.D., E.K., N.T., Ş.P., H.Ö., H.Y., E.Ö. and Y.K., as well as expert reports indicating that numerous documents used by the companies within the fictitious and fraudulent export scheme contained his signature. Regarding the third applicant, the trial court considered the statements made by Ö.K., M.B., E.M.K., U.U., E.D., E.K., N.T., M.D. and S.K. (see paragraph 3 above).

13. Lastly, the Court discerns nothing that could found an arguable duress claim in respect of the co-defendants Y.S.U., B.A., A.K., M.O.E., A.S., M.K., K.M.K., and E.Ö. (compare paragraph 1 above) and it rejects the applicants’ complaint that those people had made their statements under duress.

14. In view of the above, and having regard to the minor role played by the statements of the said co-defendants Y.S.U., B.A., A.K., M.O.E., A.S., M.K., K.M.K., and E.Ö. in the applicants’ conviction, the Court concludes that the use of the statements made by those co-defendants without a lawyer being present did not irretrievably prejudice the overall fairness of the criminal proceedings against the applicants. This part of the application is therefore manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

15. The Court considers that, having regard to its findings in Kohen and Others (cited above, §§ 65-77) which concerned identical complaints lodged by different applicants regarding the same criminal proceedings, the remaining complaints as set out under items (ii) and (iii) (see paragraph 1 above) are also manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention (see Kohen and Others, cited above, §§ 65‑77).

16. It follows that the applications must be rejected in accordance with Article 35 § 4 of the Convention.

For these reasons, the Court, unanimously,

Decides to join the applications;

Declares the applications inadmissible.

Done in English and notified in writing on 23 March 2023.

Dorothee von Arnim Pauliine Koskelo
Deputy Registrar President

Appendix

List of cases: