Communicated on 8 March 2018
SECOND SECTION
Application no. 12278/09
Sadun ÇİĞDEM against Turkey
and 2 other applications
(see list appended)
SUBJECT MATTER OF THE CASES
The applications 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 those 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, ECHR 2016). One of the applications also concerns the subsequent use by the trial court of those statements taken under alleged duress (seeÖzcan Çolak v. Turkey, no. 30235/03, §§ 47‑50, 6 October 2009).
The applications further concern the alleged lack of independence and impartiality of the trial court due to the presence of a military judge in its composition at the initial stage of the trial (see Incal v. Turkey, 9 June 1998, Reports of Judgments and Decisions 1998‑IV; and compare Ceylan v. Turkey (dec.), no. 68953/01, 30 August 2005.
Finally, one of the applications pertains to the applicant’s inability to examine or have examined the witnesses during the criminal proceedings (see Schatschaschwili v. Germany [GC], no.. 9154/10, §§ 100‑131, ECHR 2015), and his inabilityto challenge the documentary evidence (see, mutatis mutandis, Mirilashvili v. Russia, no. 6293/04, § 156-166, 11 December 2008).
QUESTIONS tO THE PARTIES
1. 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 Salduz v. Turkey [GC], no. 36391/02, ECHR 2008, and İbrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3 others, ECHR 2016)?
2. Did the applicants receive a fair trial by an independent and impartial tribunal as required by Article 6 § 1 of the Convention (see İncal v. Turkey, 9 June 1998, Reports of Judgments and Decisions 1998‑IV; and compare Ceylan v. Turkey (dec.), no. 68953/01, 30 August 2005)?
In respect of the applicant in application no. 32897/09;
3. Did the use of statements taken under alleged duress and in the absence of a lawyer violate the applicant’s right to a fair hearing (see Özcan Çolak v. Turkey, no. 30235/03, §§ 47-50, 6 October 2009)?
4. Has there been a breach of Article 6 § 3 (c) of the Convention, as a result of the absence of the applicant’s lawyer during most, if not all, investigative measures taken in the course of the preliminary criminal investigation, and the alleged failure to inform the applicant of his basic rights prior to those investigative measures (see, mutatis mutandis, Hakan Duman v. Turkey, no. 28439/03, 23 March 2010)?
5. Was the applicant able to examine the witnesses against him and have examined those on his behalf as required by Article 6 § 3 (d) of the Convention? If not, has there been a breach of the applicant’s right to a fair trial provided by Article 6 §§ 1 and 3 (d) of the Convention due to his inability to examine or have examined the witnesses (see Schatschaschwili v. Germany [GC], no. 9154/10, §§ 100-131, ECHR 2015)?
6. Was the applicant given an adequate and proper opportunity to challenge electronic evidence against him, specifically the evidence that had been presented by the police based on seized computers and CDs, in accordance with Article 6 § 3 (d) of the Convention (see mutatis mutandis Mirilashvili v. Russia, no. 6293/04, § 156-166, 11 December 2008)?
The Government are invited to submit copies of all the relevant documents concerning the applicants’ case, including but not limited to the minutes of all the hearings, documentary evidence against the applicants and the reasoned judgment of the Diyarbakır Assize Court of 29 June 2007, the applicants’ and their lawyers’ written submissions both before the trial court and before the Court of Cassation.
APPENDIX
No.
Application no.
Lodged on
Applicant
Date of birth
Place of residence
Represented by
12278/09
26/01/2009
Sadun ÇİĞDEM
08/06/1971
Şanlıurfa
32897/09
25/05/2009
Bilal SOYTAŞ
20/01/1974
Diyarbakir
44728/09
22/07/2009
Bekir BAZ
01/01/1971
Diyarbakir
Full & Egal Universal Law Academy