Published on 5 December 2022
SECOND SECTION
Application no. 52002/18
Gürcan AL
against Türkiye
lodged on 23 October 2018
communicated on 15 November 2022
SUBJECT MATTER OF THE CASE
The application concerns the alleged unfairness of criminal proceedings against the applicant on account of the trial court’s failure to take necessary steps to duly notify him or his lawyer of the time and date of the final hearing, at which he was convicted.
It further pertains under Article 6 § 3 (b) of the Convention to the alleged impairment of the applicant’s inability to have adequate time and facilities for the preparation of his defence against an expert report and the public prosecutor’s opinion on the merits of the case –both of which were submitted to the trial court at the final hearing.
The applicant asserts that even though his lawyer provided an excuse for his inability to attend the penultimate hearing and specifically requested that he be notified of the date and time of the final hearing, the trial court accepted the excuse, but fell short of properly notifying him of the proceedings. The defect in question purportedly stemmed from the trial court’s decision that the lawyer should consult the UYAP (the National Judiciary Informatics System) system to apprise himself of the information concerning the final hearing.
The applicant complains that the trial court’s above-mentioned approach had no legal basis in domestic law and effectively deprived his lawyer of the possibility to have knowledge of and comment on crucial pieces of evidence, namely the expert report and the public prosecutor’s opinion on the merits of the case, which formed the basis of his conviction.
QUESTIONS TO THE PARTIES
1. Did the applicant have a fair hearing in the determination of the criminal charge against him, in accordance with Article 6 § 1 of the Convention? In particular;
(a) Given that neither the applicant nor his lawyer were present at the last hearing held on 9 June 2014, was the applicant able to effectively participate in the criminal proceedings against him? Did the absence of the applicant and his legal representative from the final hearing undermine the fair trial guarantees under Article 6 § 1 (see Colozza v. Italy, 12 February 1985, § 27, Series A no. 89)?
(b) Was the applicant duly notified of the date and time of the final hearing at which he was convicted? Could the applicant be said to have expressly or through his own conduct waived his right to participate in that hearing? In that connection, what was the legal basis for the trial court’s direction that the applicant’s lawyer consult the National Judiciary Informatics System (UYAP) to learn the date and time of the last hearing? Having regard to the Notifications Act and the Code of Criminal Procedure, could the trial court dispense with the requirement to duly notify the applicant and/or his lawyer of the information concerning the last hearing?
2. Was the applicant afforded adequate time and facilities to prepare his defence, as required by Article 6 § 3 (b) of the Convention? In particular, was the applicant provided with an opportunity to take cognisance of and to challenge the expert report or the public prosecutor’s opinion on the merits of the case, which were submitted to the trial court at the final hearing, which was held in his absence (see Gregačević v. Croatia, no. 58331/09, § 51, 10 July 2012)? In any event, could the alleged procedural defect be regarded as having been redressed by the Court of Cassation (see Yakovlev v. Russia, no. 72701/01, § 22 in fine, 15 March 2005)?
The Government are invited to submit relevant domestic legal provisions and the case-law of the domestic courts concerning the rules and modalities of notifications effected to an accused and/or his or lawyer in the context of criminal proceedings. In that connection, the Government are further requested to shed light on the legal basis for and provide case-law examples concerning the trial court’s approach of holding that the applicant’s lawyer should consult the UYAP system in order to learn the date and time of a hearing.
The Government are also invited to submit copies of all the relevant documents concerning the applicant’s case, including but not limited to the minutes of all the hearings, the reasoned judgment of the trial court, documentary evidence against the applicant, and the written submissions of the applicant and his lawyer throughout the proceedings.