In judgment no. 45779/2018, the European Court of Human Rights examined the alleged violation of Article 6 § 1 of the European Convention on Human Rights by the Turkish courts in the context of criminal proceedings concerning terrorism-related offences.

The applicant, Serferaz Demirer, had been convicted on the charge of membership of an armed terrorist organisation. Her conviction followed her arrest while she was illegally crossing the Turkish–Syrian border together with another individual who had admitted membership of the organisation. Moreover, Demirer had used a false identity and had made a number of contradictory statements during her questioning, circumstances which, according to the domestic courts, revealed her affiliation with the terrorist organisation. Demirer maintained that she had travelled to Syria for family-related reasons and denied any link with the organisation, arguing that the national courts had failed to provide adequate reasoning for their decisions and had not specifically addressed her defence submissions. In addition, she alleged a breach of the principles of equality of arms and adversarial proceedings, contending that the Turkish courts had accepted the prosecution’s allegations without properly verifying their factual basis, thereby placing her at a procedural disadvantage by effectively imposing on her the burden of proving her innocence.

At the outset, the Strasbourg Court examined the criteria developed in domestic case-law in relation to offences connected with terrorist activities, including, inter alia, the duration of an individual’s involvement with the organisation and the use of a code name.

Secondly, the Court reiterated that it is incumbent upon domestic courts to provide sufficient and intelligible reasons for their decisions, enabling both the parties and third parties to understand the decision-making criteria applied, whose logic and coherence must be readily apparent. This obligation varies depending on the context, the court seised, the specific circumstances of the case, and the nature of the decision adopted; accordingly, a detailed and explicit response to every defence argument cannot be regarded as invariably necessary. In certain cases—such as that of the applicant—it is sufficient for the court to address the salient points of the reasoning and to explain the rationale underpinning its decision. A domestic judicial decision cannot be regarded as arbitrary to the extent of undermining the fairness of the proceedings unless it is wholly devoid of reasoning or is based on a manifest error of fact or law.

In the present case, the Convention Court found that the domestic court had carried out a comprehensive assessment of the evidentiary material and of the defence submissions, and that it had set out in a clear and exhaustive manner the reasons underpinning the conviction. In particular, the impugned judgment contained specific references to the applicant’s conduct capable of satisfying the constituent elements of the relevant criminal offence, such as the use of a false identity and other factors indicative of an organic link with the terrorist organisation.

In the light of these considerations, the European Court of Human Rights found no violation of Article 6 § 1 of the Convention, holding that the Turkish court had complied with its duty to provide reasoned decisions as required by the Convention. Consequently, the Court afforded full deference to the decisional discretion of the respondent State, concluding that the domestic judgment was neither unreasonable nor arbitrary.

The decision was not adopted unanimously by the Strasbourg Court. Two judges appended a dissenting opinion, in which they emphasised that the Turkish court had failed to properly apply the legal criteria previously established for identifying an organic link with a terrorist organisation and for determining the nature of the activities required to substantiate membership thereof. According to the dissenting judges, irrespective of the applicant’s guilt or innocence, a violation of Article 6 § 1 had occurred insofar as the Turkish court had neglected to apply the settled legal criteria developed in the case-law when assessing the offence with which the applicant was charged.

 

(Comment by Martina Palazzo)