Communicated on 11 October 2018
SECOND SECTION
Applications nos. 75297/11 and 81535/12
Bekir ÇADİRCİ and Müdet KÖMÜRCÜ against Turkey
and Nurettin KILIÇASLAN and Cemal SOĞUKPINAR against Turkey
lodged on 8 September 2011 and 23 November 2012 respectively
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. 75297/11 also concerns the use of the applicants’ police statements allegedly obtained under ill-treatment to convict them and the alleged absence of the applicants’ lawyer during the investigative measures taken in the course of the preliminary investigation stage (see Gäfgen v. Germany [GC], no. 22978/05, §§ 165-166, ECHR 2010, and Göçmen v. Turkey, no. 72000/01, §§ 73-74, 17 October 2006 and see, mutatis mutandis, Hakan Duman v. Turkey, no. 28439/03, 23 March 2010).
The Court has already found both substantive and procedural violations of Article 3 of the Convention in respect of the applicants in Müdet Kömürcü v. Turkey (no. 40160/05, 21 July 2009) and Karagöz and Others v. Turkey (nos. 14352/05 and 2 others, 13 July 2010).
Application no. 81535/12 also involves a complaint about the use by the trial court of the evidence given by the first applicant under alleged ill‑treatment while in police custody (see Gäfgen v. Germany [GC], no. 22978/05, §§ 165-166, ECHR 2010, and Göçmen v. Turkey, no. 72000/01, §§ 73-74, 17 October 2006).
The Court has also found a substantive violation of Article 3 of the Convention in respect of the first applicant in Durmuş Kurt and Others v. Turkey, (no. 12101/03, 31 May 2007).
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 Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3 others, ECHR 2016; and Salduz v. Turkey [GC], no. 36391/02, ECHR 2008)?
ADDITIONAL CASE-SPECIFIC QUESTIONS
In respect of the applicants in application no. 75297/11
1. Having regard to the Court’s conclusions under Article 3 of the Convention in respect of the same applicants in Karagöz and others v. Turkey (nos. 14352/05, 38484/05 and 38513/05, 13 July 2010) and Müdet Kömürcü v. Turkey (no. 40160/05, 21 July 2009) judgments, did the applicants have a fair trial within the meaning of Article 6 § 1 of the Convention? In particular, did the Istanbul Assize Court use the police statements taken from the applicants under ill-treatment? Has there been a violation of Article 6 § 1 of the Convention in this respect (see Gäfgen v. Germany [GC], no. 22978/05, §§ 165-166, ECHR 2010, and Göçmen v. Turkey, no. 72000/01, §§ 73-74, 17 October 2006)?
2. 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 (see, mutatis mutandis, Hakan Duman v. Turkey, no. 28439/03, 23 March 2010)?
In respect of the first applicant in application no. 81535/12
Having regard to the Court’s conclusions under Article 3 of the Convention in respect of the first applicant in Durmuş Kurt and Others v. Turkey, (no. 12101/03, 31 May 2007) judgment, did the first applicant have a fair trial within the meaning of Article 6 § 1 of the Convention? Did the Istanbul Assize Court use the evidence given by the first applicant under alleged ill-treatment while in police custody (see Gäfgen v. Germany [GC],
no. 22978/05, §§ 165-166, ECHR 2010, and Göçmen v. Turkey, no. 72000/01, §§ 73-74, 17 October 2006)?
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.
No.
Application
no. and date of introduction
Applicant name
date of birth
place of residence
nationality
Represented by
75297/11
08/09/2011
Bekir ÇADİRCİ
01/02/1974
Istanbul
Turkish
Müdet KÖMÜRCÜ
21/05/1972
Ardahan
Turkish
Mehmet Ali KIRDÖK
Mihriban
KIRDÖK
Meral
HANBAYAT
YEŞİL
81535/12
23/11/2012
Nurettin KILIÇASLAN
15/11/1972
Tunceli
Turkish
Cemal SOĞUKPINAR
26/07/1967
Istanbul
Turkish
Mehmet Ali KIRDÖK
Meral HANBAYAT YEŞİL
Ümit SİSLİGUN
APPENDIX
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Full & Egal Universal Law Academy