Communicated on 19 October 2018
SECOND SECTION
Application no. 53848/09
Veysel AKTAŞ and Murat TARI against Turkey
and 7 other applications
(see list appended)
SUBJECT MATTER OF THE CASE
The applications mainly concern the alleged unfairness of the criminal proceedings due to the systemic restriction imposed on the applicants’ right of access to a lawyer during the pre-trial stage pursuant to Law no. 3842 and the subsequent use by the trial court of statements taken in the absence of a lawyer (see Salduz v. Turkey [GC], no. 36391/02, ECHR 2008, and Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3 others, 13 September 2016).
Application no. 53848/09 also concerns the use of the evidence obtained under alleged duress during the preliminary investigation stage (see Özcan Çolak v. Turkey, no. 30235/03, §§ 47-50, 6 October 2009). It further relates to the independence and impartiality of the trial court as required by Article 6 § 1 of the Convention (see Incal v. Turkey, 9 June 1998, Reports of Judgments and Decisions 1998 IV, and compare, Ceylan v. Turkey (dec.), no. 68953/01, 30 August 2005).
Application no. 36824/11 also concerns independence and impartiality of the trial court as required by Article 6 § 1 of the Convention (see Incal, cited above, and compare, Ceylan, cited above), and the applicant’s alleged inability to examine or have examined the complainant party, namely A.T., who took part in photo identification procedure during the preliminary investigation stage and identified the applicant (see Daştan v. Turkey, no. 37272/08, 10 October 2017).
Application no. 60237/11 also concerns independence and impartiality of the trial court as required by Article 6 § 1 of the Convention, given the indictment filed by the Istanbul public prosecutor against the third applicant’s lawyer following the complaint lodged by the members of the trial court’s bench, and further pertains to the use of the evidence obtained under alleged duress during the preliminary investigation stage (see Özcan Çolak, cited above, §§ 47-50). It also relates to the alleged absence of the applicants’ lawyer during the investigative measures, such as the reconstruction of the events (yer gösterme) and the identification procedure (teşhis islemleri) (see, mutatis mutandis, Hakan Duman v. Turkey, no. 28439/03, 23 March 2010).
Application no. 77243/11 also concerns the alleged absence of the applicant’s lawyer during the investigative measures taken in the course of the preliminary investigation stage (see, mutatis mutandis, Hakan Duman, cited above) and the use by the trial court of the other co‑defendants’ statements taken in the absence of a lawyer (see Ömer Güner v. Turkey, no. 28338/07, §§ 37-41, 4 September 2018). It further concerns the applicant’s alleged inability to examine or have examined the complainant parties (see Daştan, cited above).
Application no. 394/12 further pertains to the use of the applicant’s statements taken under alleged duress to convict him (see Özcan Çolak, cited above, §§ 47-50).
Application no. 8407/12 also concerns the alleged absence of the applicants’ lawyer during the investigative measures taken in the course of the preliminary investigation stage (see Hakan Duman, cited above).
QUESTIONS tO THE PARTIES
COMMON QUESTION
Did the applicants have a fair hearing in the determination of the criminal charges against themselves, in accordance with Article 6 § 1 of the Convention? In particular, has there been a breach of Article 6 § 3 (c) of the Convention, as a result of the lack of legal assistance available to the applicants during the preliminary investigation (see Salduz v. Turkey [GC], no. 36391/02, ECHR 2008, and Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3 others, ECHR 2016)?
ADDITIONAL CASE-SPECIFIC QUESTIONS
A. In respect of the applicants in application no. 53848/09
1. Did the use of the evidence obtained under alleged duress during the preliminary investigation stage violate the applicants’ right to a fair hearing (see Özcan Çolak v. Turkey, no. 30235/03, §§ 47-50, 6 October 2009)?
2. Did the applicant receive a fair trial by an independent and impartial tribunal as required by Article 6 § 1 of the Convention (see Incal v. Turkey, 9 June 1998, Reports of Judgments and Decisions 1998 IV, and compare, Ceylan v. Turkey (dec.), no. 68953/01, 30 August 2005)?
B. In respect of the applicant in application no. 36824/11
1. Did the applicant receive a fair trial by an independent and impartial tribunal as required by Article 6 § 1 of the Convention (see Incal, cited above, and compare, Ceylan, cited above)?
2. Has there been a breach of the applicant’s right to a fair trial provided by Article 6 §§ 1 and 3 (d) of the Convention due to his inability to examine or have examined the complainant party, namely A.T., who took part in photo identification procedure during the preliminary investigation stage and identified the applicant (see Daştan v. Turkey, no. 37272/08, 10 October 2017)?
C. In respect of the applicant in application no. 60237/11
1. Did the applicants receive a fair trial by an independent and impartial tribunal as required by Article 6 § 1 of the Convention, given the indictment filed by the Istanbul public prosecutor against the third applicant’s lawyer following the complaint lodged by the members of the trial court’s bench?
2. Did the use of the evidence obtained under alleged duress during the preliminary investigation stage violate the applicants’ right to a fair hearing (see Özcan Çolak, cited above §§ 47-50)?
3. Has there been a breach of Article 6 §§ 1 and 3 (c) of the Convention, as a result of the absence of the applicants’ lawyers during the investigative measures, such as the reconstruction of the events (yer gösterme) and the identification procedure (teşhis islemleri) (see, mutatis mutandis, Hakan Duman v. Turkey, no. 28439/03, 23 March 2010)?
D. In respect of the applicant in application no. 77243/11
1. Has there been a breach of Article 6 §§ 1 and 3 (c) of the Convention, as a result of the applicant’s lawyer’s absence during the investigative measures taken in the course of the preliminary investigation stage (see mutatis mutandis, Hakan Duman, cited above)?
2. Has there been a breach of Article 6 §§ 1 and 3 (c) of the Convention on account of the use by the trial court of the co-defendants’ statements taken in the absence of a lawyer (see Ömer Güner v. Turkey, no. 28338/07, §§ 37-41, 4 September 2018)?
3. Was the applicant able to examine the complainant parties, namely H.Ö., E.B., A.S., M. I., R.Y. in the proceedings brought against him, as required by Article 6 § 3 (d) of the Convention (see Daştan, cited above)?
E. In respect of the applicants in application no. and 394/12
Did the use of the applicant’s statements taken under alleged duress violate his right to a fair hearing (see Özcan Çolak, cited above, §§ 47‑50, 6 October 2009)?
F. In respect of the applicant in application no. 8407/12
Has there been a breach of Article 6 §§ 1 and 3 (c) of the Convention, as a result of the absence of the applicants’ lawyer during the investigative measures taken in the course of the preliminary investigation stage, in particular the reconstruction of the events (yer gösterme) (see, mutatis mutandis, Hakan Duman, cited above)?
The Government are invited to submit copies of all the relevant documents concerning the applicants’ cases, including but not limited to the minutes of all the hearings, documentary evidence against the applicants and the reasoned judgment of the trial court, the applicants’ and their lawyers’ written submissions both before the trial court and before the Court of Cassation.
The Government are further requested to submit the pre-trial statements of the applicants in applications nos. 53848/09, 62977/11, 74553/11, and 77243/11.
APPENDIX
No.
Application no.
Lodged on
Applicant
Date of birth
Place of residence
Represented by
53848/09
18/09/2009
Veysel AKTAŞ
01/01/1973
İstanbul
Murat TARI
01/01/1973
Giresun
Gülizar TUNCER
36824/11
26/04/2011
Yüksel BEYSÜLEN
05/01/1978
İstanbul
Nuran KURTULUŞ ATAHAN
60237/11
21/07/2011
Tamer TUNCER
25/10/1971
Kocaeli
Mete TUNCER
17/06/1969
İstanbul
Nuri AKALIN
29/08/1977
Kandıra
Gülizar TUNCER
62977/11
26/07/2011
Mehmet Zeki DENİZ
01/01/1963
İstanbul
Abdulhamit ÇAKAN
74553/11
14/10/2011
Fırat PERVANE
10/07/1979
Diyarbakır
Mehmet ERBIL
77243/11
28/11/2011
Kadir AYDIN
26/07/1981
Tekirdağ
Nuran KURTULUŞ ATAHAN
394/12
15/12/2011
Hasan SAYAN
01/01/1968
İstanbul
Cesim TUSUN
8407/12
30/12/2011
Efendi YALDIZ
01/01/1971
İstanbul
Erkan YALDIZ
01/04/1977
İstanbul
Kızıl ÖMÜR
28/08/1978
İstanbul
Several BALLIKAYA ÇELİK
Full & Egal Universal Law Academy