Communicated on 8 October 2018
SECOND SECTION
Application no. 51920/10
Şerafettin DENİZ against Turkey
and 5 other applications
(see list appended)
SUBJECT MATTER OF THE CASES
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 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, 13 September 2016).
Applications nos. 51920/10 and 61632/10 also concern the alleged lack of adequate and proper opportunity to challenge the documentary evidence against the applicants, and the alleged failure of the trial court to request the production of the original documents on which the trial court based its judgment when convicting the applicants (compare Georgios Papageorgiou v. Greece, no. 59506/00, ECHR 2003‑VI (extracts))
Application no. 40483/11 further concerns the alleged absence of the applicant’s lawyer during the investigative measures taken in the course of the preliminary criminal investigation.
Application no. 72446/11 further pertains to the applicant’s alleged inability to examine or have examined the evidence given by the witnesses within the context of another set of proceedings and the alleged lack of adequate and proper opportunity to challenge the documentary evidence against him (see Gökbulut v. Turkey, no. 7459/04, 29 March 2016; and compare, Dominka v. Slovakia, (dec.) no. 14630/12, §§ 28-36, 3 April 2018).
Finally, application no.78833/12 involves a complaint about the alleged unfairness of the criminal proceedings against the applicant on account of the absence of a hearing before the Court of Cassation (see, for instance, Hermi v. Italy [GC], no. 18114/02, §§ 58-67, ECHR 2006‑XII, and Tierce and Others v. San Marino, nos. 24954/94 and 2 others, §§ 92-102, ECHR 2000‑IX).
QUESTIONS tO THE PARTIES
COMMON QUESTION
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 Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3 others, 13 September 2016; and Salduz v. Turkey [GC], no. 36391/02, ECHR 2008)?
ADDITIONAL CASE-SPECIFIC ISSUES
In respect of the applicants in applications nos. 51920/10 and 61632/10
2. Were the applicants given an adequate and proper opportunity to challenge documentary evidence against them, in particular the documents which were relied on by the trial court to convict them? Did the trial court request the production of the original documents which constituted the basis for the applicants’ conviction or their certified copies (compare Georgios Papageorgiou v. Greece, no. 59506/00, ECHR 2003‑VI (extracts))?
In respect of the applicant in application no. 40483/11
3. 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 the investigative measures taken in the course of the preliminary criminal investigation, specifically the identification procedure that had been conducted by the police?
In respect of the applicant in application no. 72446/11
4. Was the applicant provided with an adequate opportunity to exercise his defence rights within the meaning of Article 6 § 3 (d) of the Convention in respect of the evidence given by R.K., N.G., F.G., N.G., M.K., K.K., M.G., B.Ö., A.D.? If not, has there been a breach of the applicant’s right to a fair trial provided for by Article 6 §§ 1 and 3 (d) of the Convention due to his inability to examine or have examined those witnesses (see, Gökbulut v. Turkey, no. 7459/04, 29 March 2016; and compare, Dominka v. Slovakia, (dec.) no. 14630/12, 3 April 2018)?
5. Was the applicant given an adequate and proper opportunity to challenge documentary evidence against him, in particular the document dated September 1996 which was allegedly relied on by the trial court to convict him?
In respect of the applicant in application no. 78833/12
6. Has there been a violation of Article 6 § 1 of the Convention on account of the absence of a hearing before the Court of Cassation (see, for instance, Hermi v. Italy [GC], no. 18114/02, §§ 58-67, ECHR 2006‑XII, and Tierce and Others v. San Marino, nos. 24954/94 and 2 others, §§ 92-102, ECHR 2000‑IX)?
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.
The Government are further requested to submit the pre-trial statements of the applicants in applications nos. 40483/11 and 72446/11.
Lıst of applıcatıons
No.
Application
no. and date of introduction
Applicant name
date of birth
place of residence
nationality
Represented by
51920/10
30/07/2010
Şerafettin DENİZ
11/05/1948
İzmir
Turkish
Mehmet Nur TERZİ
61632/10
30/07/2010
Halil MALAK
19/04/1956
İzmir
Turkish
Mehmet Nur TERZİ
40483/11
03/03/2011
Kamil YAMAN
01/06/1977
Mersin
Turkish
Filiz KILIÇGÜN YEŞİL
72446/11
25/10/2011
Abdulkadir TURAN
05/05/1970
Istanbul
Turkish
Yahya TURAN
72814/11
04/11/2011
Murat CERNİT
18/11/1965
Chisinau
Turkish
Mehmet Zahir KIZILAY
78833/12
18/09/2012
İhsan GEZENER
16/03/1977
Istanbul
Turkish
İnan AKMEŞE
Full & Egal Universal Law Academy