Published on 19 May 2025
SECOND SECTION
Application no. 63928/19
Senem ALGERİ
against Türkiye
lodged on 29 November 2019
communicated on 2 May 2025
SUBJECT MATTER OF THE CASE
The application concerns the alleged unfairness of criminal proceedings due to the domestic courts’ failure to observe the applicant’s various rights under Article 6 §§ 1 and 3 (c) of the Convention, including the following: (i) her right to be present and to effectively participate in the proceedings, (ii) her right to have an effective legal assistance, (iii) her right to equality of arms and an adversarial trial, and (iv) her right to a reasoned judgment.
The applicant, in her capacity as the controlling shareholder of a company, was convicted of two counts of tax fraud under Article 359 of the Tax Procedure Act for using forged invoices and was sentenced to a total term of imprisonment of six years, eleven months and thirty-five days.
QUESTIONS TO THE PARTIES
1. Did the applicant have a fair hearing in the determination of the “criminal charge” against her, in accordance with Article 6 of the Convention? In that connection, and having regard to the applicant’s above-mentioned allegations,
(a) Did the trial court take the necessary steps to enable the applicant to participate effectively in the trial? In that regard, did it inform her of the relevant provisions of the Code of Criminal Procedure concerning her right and duty to participate in the trial? If so, did it dispense the applicant from the obligation to attend hearings (vareste tutmak) in line with the said Code? If not, and given the absence of the applicant and her lawyer from the hearings after she gave evidence, what steps did the trial court take to secure her presence and to enable her to exercise her defence rights, including but not limited to her right to present her closing arguments (see, for the general principles, Sejdovic v. Italy [GC], no. 56581/00, §§ 86‑88, ECHR 2006-II)?
(b) What steps did the trial court take to ensure that the principles of equality of arms and adversarial proceedings were respected? In that connection, did the trial court communicate to the applicant and/or her lawyer the expert report dated 27 November 2017, which it had commissioned and later relied on to convict her (see, for the general principles, Alexandru-Radu Luca v. Romania, no. 20837/18, § 58, 14 June 2022, with further references)?
(c) Did the trial court, as the guardian of the fairness of the proceedings, ensure that the applicant had adequate time and facilities to prepare her defence? In that regard, was the trial court required to take any steps to ensure that the applicant received effective legal assistance in view of the absence of her lawyer from the hearings (see Kahraman v. Turkey, no. 42104/02, §§ 35-36, 26 April 2007)?
(d) Did the Antalya Regional Court of Appeal discharge its duty to give a reasoned judgment (see Moreira Ferreira v. Portugal (no. 2) [GC], no. 19867/12, § 84, 11 July 2017, and Ayetullah Ay v. Turkey, nos. 29084/07 and 1191/08, § 128, 27 October 2020)? In that regard, did it properly examine, specifically address and respond to the appeal grounds raised by the applicant, including but not limited to:
(i) the trial court’s failure to communicate to her the expert report on which it based its decision to convict her,
(ii) the alleged absence of the mental element of the offence of which she was convicted, given that her role as the controlling shareholder of the company had not reflected the actual situation, as she had given a proxy to her husband who had controlled and run the business, and the specialist opinion she had obtained on the case?
The parties are requested to submit the case-law of the Court of Cassation and the Supreme Administrative Court concerning the non-communication of expert reports obtained in proceedings concerning tax offences and tax surcharges.
The parties are further requested to submit, within the same time‑limit, the documents concerning the tax proceedings before the Antalya Tax Court in case number 2016/216 concerning the tax surcharge imposed on the company of which the applicant was the controlling shareholder.