Published on 10 June 2025
SECOND SECTION
Application no. 35930/21
Mahir DOĞANAY
against Türkiye
lodged on 6 July 2021
communicated on 19 May 2025
SUBJECT MATTER OF THE CASE
The application concerns, under Article 6 § 1 of the Convention, the alleged unfairness of criminal proceedings against the applicant due to a breach of the principle of immediacy on account of the frequent changes of judges in the composition of the court which had convicted him, by two votes to one, of two counts of murder.
The application further pertains to an alleged breach of Article 6 § 3 (d) of the Convention due to the applicant’s inability to examine certain witnesses (namely S.A.Ş., M.Ş. and L.M.) in person before the trial court.
The applicant complains under Article 6 § 1 of the Convention that during his trial, which took place from February 2015 to August 2016, eleven different judges had sat on the trial court’s three-judge panel, including one judge who had taken part only in the last hearing at which the judgment on the merits was delivered. In that regard, the applicant stressed that the change of judges had resulted in a concrete negative consequence in his case, as evidenced by the fact that the president of the trial court – the only judge to take part in all the hearings since the start of the trial– dissented from the conviction on the grounds that the evidence of certain witnesses had not been duly taken into account. The applicant further argues that the change of judges was a structural problem capable of prejudicing potentially all the criminal cases, since it was based on the legislation, which provided for the rotation of judges and public prosecutors at certain intervals and without their consent.
Lastly, relying on Article 6 § 3 (d) of the Convention, the applicant complains of his inability to examine certain witnesses before the trial court.
QUESTIONS TO THE PARTIES
1. Did the applicant have a fair hearing in the determination of the criminal charges against him, in accordance with Article 6 § 1 of the Convention? In particular, has there been a breach of the principle of immediacy on account of the changes in the composition of the trial court in the course of the proceedings (see, for the general principles, Orhan Şahin v. Türkiye, no. 48309/17, §§ 48-49, 12 March 2024)? Did the higher instance courts remedy this alleged procedural shortcoming?
2. Was the applicant able to examine the witnesses against him as required by Article 6 §§ 1 and 3 (d) of the Convention (see Al‑Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, §§ 118-47, ECHR 2011; Schatschaschwili v. Germany [GC], no. 9154/10, §§ 100‑31, ECHR 2015; and Faysal Pamuk v. Turkey, no. 430/13, §§ 44-50, 18 January 2022)?
The Government are requested to submit examples of case-law of the Regional Courts of Appeal and the Court of Cassation in which these courts quashed lower courts’ judgments, finding breaches of the principle of immediacy as a result of changes in the composition of the lower court panels. In that regard, the Government are further requested to submit, inter alia, the copies of the Plenary Constitutional Court’s judgment dated 15 February 2024 in Erdal Sonduk (individual application no. 2020/23093).