Published on 12 May 2025
SECOND SECTION
Application no. 5283/23
Tayfun AKTAŞ
against Türkiye
lodged on 19 January 2023
communicated on 22 April 2025
SUBJECT MATTER OF THE CASE
The application concerns the alleged unfairness of criminal proceedings against the applicant in which the domestic courts found him guilty of threat, but decided to suspend the pronouncement of the judgment against him on the condition that he did not commit another intentional offence for five years (hükmün açıklanmasının geri bırakılması). In particular, the case raises issues concerning the right of access to a court, the principle of immediacy, the right to a reasoned judgment, the right to be tried within a reasonable time, and the effectiveness of the remedy of “objection” against decisions to suspend the pronouncement of the judgment.
The application further pertains to an alleged breach of Article 4 of Protocol No. 7 to the Convention based on the applicant’s contention that while he was being tried for the offence of threat underlying his present application, the authorities initiated another set of criminal proceedings based on the same factual allegation and placed him in pre-trial detention, resulting in his being simultaneously tried twice for the same offence.
The applicant alleges that he did not have a fair trial in that the two members of the panel which convicted him, by two votes to one, had not heard any of the witnesses who had previously given evidence, and the domestic courts failed to comply with their duty to respect the requirements of the right to a reasoned judgment, because they failed to indicate, let alone assess, the evidence, such as experts reports and witness statements which were in his favour. In the same vein, the applicant further complains that the decision to dismiss his objection to the trial court’s decision to suspend the pronouncement of the judgment also lacked concrete reasons, thereby violating his right to a fair trial and his right to have an effective remedy.
The applicant further argues that he had not consented to the suspension of the pronouncement of the judgment and that the Constitutional Court’s decision to declare his application inadmissible on that basis was a breach of his rights under Article 6 of the Convention. Moreover, the applicant submits that the remedy of objection against a decision to suspend the pronouncement of the judgment was not effective in view of the Constitutional Court’s findings to that effect in its decision to annul Article 231 § 12 of the Code of Criminal Procedure which dealt with that matter. Lastly, the applicant complains of a violation of Article 6 § 1 of the Convention due to the unduly long duration of the proceedings before the domestic courts.
Finally, the applicant complains, under Article 4 of Protocol No. 7 to the Convention, that while the criminal proceedings against him for the offence of threat were pending, the prosecuting authorities initiated another set of criminal proceedings against him for being a member of an armed terrorist organisation and placed him in pre-trial detention based on the same acts forming the basis of the first proceedings.
QUESTIONS TO THE PARTIES
1. Did the applicant have a fair hearing in the determination of the criminal charges against him, in accordance with Article 6 § 1 of the Convention?
2. In particular, has there been a breach of the applicant’s right of access to a court guaranteed by Article 6 of the Convention owing to the way in which his consent to a possible decision to suspend the pronouncement of the judgment (hükmün açıklanmasının geri bırakılması) was obtained, which procedure was found to be incompatible with the fair trial guarantees by the Constitutional Court in its Atilla Yazar ve diğerleri decision dated 5 July 2022: In such circumstances, could the applicant be said to have waived his right of access to a court? In any event, could the Constitutional Court’s decision to declare the applicant’s individual application inadmissible be considered in conformity with the right of access to a court, given the applicant’s argument that the Court had already found, two months prior to its decision in his case, unconstitutional the provisions regarding the suspension of the pronouncement of the judgment (see, for general principles, Vegotex International S.A. v. Belgium [GC], no. 49812/09, § 133, 3 November 2022, and Zubac v. Croatia [GC], no. 40160/12, §§ 76-79, 5 April 2018)?
3. Has there been a breach of the principle of immediacy under Article 6 of the Convention on account of the changes in the composition of the trial court in the course of the proceedings (see, for the general principles, Orhan Şahin v. Türkiye, no. 48309/17, §§ 48-49, 12 March 2024)? Did the higher instance courts remedy the alleged procedural shortcoming?
4. Was the applicant’s right to a reasoned judgment under Article 6 of the Convention respected by the domestic courts (see Moreira Ferreira v. Portugal (no. 2) [GC], no. 19867/12, § 84, 11 July 2017)? In particular, having regard to the Constitutional Court’s findings that the remedy of objection against decisions to suspend the pronouncement of the judgment was ineffective in practice, could the applicant be said to have had at his disposal an effective remedy for the complaint in question?
5. Was the length of the domestic proceedings in the present case in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention (see Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II)?
6. Has the applicant been tried and punished twice for the same offence in the territory of the respondent State, as prohibited by Article 4 § 1 of Protocol No. 7 to the Convention (see, for general principles, Sergey Zolotukhin v. Russia [GC], no. 14939/03, §§ 47 ss., ECHR 2009, and A and B v. Norway [GC], nos. 24130/11 and 29758/11, §§ 101-134, 15 November 2016)?
The Government are requested to submit the relevant case-law of the Constitutional Court on decisions to suspend the pronouncement of the judgment (hükmün açıklanmasının geri bırakılması), including but not limited to copies of
(i) its judgment dated 5 July 2022 in Atilla Yazar ve diğerleri (individual application no. 2016/1635),
(ii) the Constitutional Court’s judgment dated 20 July 2022 (docket number 2021/121, decision number 2022/88) and
(iii) the Constitutional Court’s judgment dated 1 June 2023 (docket number 2022/120, decision number 2023/107).