Published on 2 June 2025
SECOND SECTION
Application no. 27231/20
Ayhan BAHAR
against Türkiye
lodged on 16 June 2020
communicated on 12 May 2025
SUBJECT MATTER OF THE CASE
The application concerns the alleged unfairness of criminal proceedings under which the applicant was convicted of being a member of an armed terrorist organisation, namely FETÖ/PDY (Fetullahist Terror Organisation/Parallel State Structure) and was sentenced to seven years and six months’ imprisonment pursuant to Article 314 § 2 of the Criminal Code. The conviction was based on the following evidence: (i) the use of the ByLock application, and (ii) a witness statement attesting that the applicant had taken part in organisational (sohbet) meetings. Throughout the proceedings, he was represented by an officially appointed defence lawyer (zorunlu müdafi).
On 7 December 2017 the applicant’s lawyer appealed the first instance court’s judgment to the Regional Court of Appeal without specifying any grounds of appeal. On 19 February 2018 the applicant filed his detailed appeal submissions to the Regional Court of Appeal, arguing, inter alia, that he had never been in contact with the officially appointed lawyer except during the hearings where she had been present, and he expressed doubts about her diligence in handling issues concerning his case. In particular, he argued that the officially appointed lawyer had never visited him while he had been in prison, and that his oral submissions had been interrupted when the lawyer received a warning from the trial court for being engaged with her mobile phone during the submissions, followed by the seizure and examination of the mobile phone. He therefore claimed that he was not able to deliver his submissions in an effective manner in these circumstances.
On 22 May 2018 the Samsun Regional Court of Appeal dismissed the applicant’s appeal without specifically addressing his concerns about the lawyer. The decision was subsequently notified only to the lawyer, who appealed the decision with a very brief text which contained no grounds of appeal.
On 12 March 2019 the Court of Cassation decided not to entertain the appeal due to the applicant’s officially appointed lawyer’s failure to indicate any appeal grounds, as required by the Code of Criminal Procedure.
On 12 June 2019 the applicant lodged an application with the Constitutional Court, alleging violations of, inter alia, Articles 6 §§ 1 and 3 (c) and 7 of the Convention. On 13 March 2020 the Constitutional Court found the complaint under Article 6 of the Convention inadmissible for non‑exhaustion of domestic remedies.
The applicant complains under Article 6 § 1 of the Convention that he was convicted on the basis of evidence unlawfully obtained by the National Intelligence Organisation (Milli İstihbarat Teşkilatı, “MİT”) without a court order, and that the allegedly unlawfully obtained evidence in question was not subjected to direct and independent examination by the domestic courts, in violation of the principle of equality of arms and adversarial proceedings.
Relying on Article 6 § 3 (c) of the Convention, the applicant also alleges that he was deprived of practical and effective legal assistance, because his officially appointed lawyer had shirked her duties and the relevant domestic authorities, including the courts, had remained silent to his complaints in that regard.
The applicant also complains under Article 7 of the Convention that he was convicted for acts which did not constitute a crime, due to an extensive and arbitrary interpretation of the relevant laws.
QUESTIONS TO THE PARTIES
1. Did the applicant exhaust the remedies available in domestic law in relation to his complaints under Article 6 § 1 of the Convention? If so, 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:
(i) Was the evidence concerning the applicant’s use of ByLock obtained lawfully, having particular regard to the manner in which it was procured by the National Intelligence Organisation (MİT) (see Yüksel Yalçınkaya v. Türkiye [GC], no. 15669/20, §§ 302-346, 26 September 2023)?
(ii) Was the data regarding the applicant’s use of ByLock, including that provided by the MİT, submitted to an independent expert examination, in order to determine the integrity, accuracy and consistency of the data obtained?
(iii) Did the applicant receive a practical and effective legal assistance as required by Article 6 §§ 1 and 3 (c) of the Convention (see Artico v. Italy, 13 May 1980, §§ 33-36, Series A no. 37, and Daud v. Portugal, 21 April 1998, § 38, Reports of Judgments and Decisions 1998-II)?
2. Did the applicant exhaust the remedies available in domestic law in relation to his complaints under Article 7 of the Convention? If so, was the applicant’s conviction for membership of a terrorist organisation compatible with the requirements of Article 7 of the Convention having regard to the acts on which his conviction was based (see Yüksel Yalçınkaya v. Türkiye [GC], no. 15669/20, §§ 214-272, 26 September 2023)?
The Government are requested to provide the Court with the relevant documents, including the prisoner visitor records held by the prison(s) in which the applicant was kept, with a view to shedding light on the applicant’s allegation that the officially appointed lawyer had never visited him while he had been in prison.
The Government are further requested to submit all the relevant documents concerning procedures, disciplinary, criminal or otherwise which may have initiated against the officially appointed lawyer by, inter alia, the Ministry of Justice and the Trabzon Bar Association, after the trial court had seized and searched her mobile telephone on the grounds that she had been playing with it while the applicant had been giving evidence at the hearing, as claimed by the applicant in his submissions before the domestic courts.
Lastly, and having regard to the Court of Cassation’s refusal to entertain the appeal lodged by the officially appointed lawyer on the grounds that it lacked any appeal grounds, the Government are also requested to submit all the written submissions filed by that lawyer in the course of the criminal proceedings against the applicant, including but not limited to the submissions before the trial court, the Regional Court of Appeal, the Court of Cassation and the Constitutional Court, if any.