Communicated on 15 October 2020
Published on 2 November 2020
SECOND SECTION
Application no. 16682/15
Hamza EKİZ
against Turkey
lodged on 24 March 2015
SUBJECT MATTER OF THE CASE
The application concerns the alleged unfairness of the criminal proceedings against the applicant owing to the domestic courts’ alleged failure to respect his right to be represented by a lawyer of his own choosing (see Dvorski v. Croatia [GC], no. 25703/11, §§ 83-113, ECHR 2015; Croissant v. Germany, 25 September 1992, §§ 27-32, Series A no. 237‑B) and the ineffective legal assistance provided to him during the trial (see Huseynli and Others v. Azerbaijan, nos. 67360/11 and 2 others, 11 February 2016; Ananyev v. Russia, no. 20292/04, §§ 48-56, 30 July 2009, and in contrast, Mađer v. Croatia, no. 56185/07, §§ 162-9, 21 June 2011).
The applicant was tried and subsequently convicted for his involvement in the murder of a certain F.K. on 29 June 1994.
On 6 November 1998 the applicant appointed two lawyers, namely Mr. C.Ö. and Mr U.A. to represent him before the criminal proceedings in the Kastamonu Assize Court.
At a hearing held on 23 December 1999 the applicant asked the trial court to be exempted from the obligation to participate in the hearings, arguing that it would be difficult for him to attend the trial in the Kastamonu Assize Court given that he was working as a public official in another city, namely Ordu.
Mr C.Ö. passed away before the commencement of the trial and while the criminal proceedings against the applicant were pending Mr U.A. withdrew from practice by his own volition and his membership in the Ordu Bar Association was terminated on 9 March 2007. According to the applicant’s submissions, the hearing held on 23 December 1999 was the last hearing to which lawyer U.A. attended. At a hearing held on 19 January 2011, the trial court noted that the Kastamonu Bar Association had assigned a new lawyer, namely Ü.Y.Y. to represent the applicant. Nevertheless, Ü.Y.Y. did not attend that hearing as he had sent a fax to the trial court in which he had provided an excuse for his inability to attend the trial.
On 23 March 2011 the Kastamonu Assize Court held the last hearing during which the public prosecutor submitted its opinion on the merits of the case and the defence lawyers presented their closing arguments. Thereupon, Ü.Y.Y. showed up and the trial court asked him to make his defence submissions and read out the public prosecutor’s opinion, the other documentary evidence and the procedural steps taken in his absence. Ü.Y.Y. stated that he had not accepted the points against the applicant and asked the trial court to acquit him in the absence of any indisputable and credible evidence. At the end of the hearing, the trial court sentenced the applicant to life imprisonment, finding it established that he had introduced the inciter and the hitman to kill the victim.
The applicant claims that he was informed of the trial court’s judgment by SMS, as a result of which he hired his own lawyer and lodged an appeal against his conviction wherein he complained, inter alia, of the trial court’s decision to appoint him a lawyer without informing him and of the insufficient steps taken by Ü.Y.Y.
On 6 November 2012 the Court of Cassation upheld the trial court’s judgment without specifically addressing the applicant’s above complaints.
On 30 June 2014 the Constitutional Court declared the application inadmissible, finding that neither the applicant nor his lawyer had showed the necessary due diligence to follow the criminal proceedings.
QUESTIONS TO THE PARTIES
1. Was the applicant able to defend himself through legal assistance of his own choosing, as required by Article 6 § 3 (c) of the Convention (see Dvorski v. Croatia [GC], no. 25703/11, §§ 83-113, ECHR 2015; Croissant v. Germany, 25 September 1992, §§ 27-32, Series A no. 237‑B)?
2. Did the applicant receive effective legal representation in accordance with Article 6 §§ 1 and 3 (c) of the Convention (see Huseynli and Others v. Azerbaijan, nos. 67360/11 and 2 others, 11 February 2016; Ananyev v. Russia, no. 20292/04, §§ 48-56, 30 July 2009, and in contrast, Mađer v. Croatia, no. 56185/07, §§ 162-9, 21 June 2011)?
- In particular, was he informed of the officially assigned lawyer’s appointment (Ü.Y.Y.)? If so, when and how was the applicant informed of such appointment?
- Did the applicant have any communication and/or discussion with Ü.Y.Y. prior to the hearing on 19 September 2006 (see Ananyev v. Russia, no. 20292/04, § 54, 30 July 2009)?
- Did Ü.Y.Y. submit any defence submissions prior to the hearing held on 23 March 2011 (compare Kahraman v. Turkey, no.42104/02, § 36, 26 April 2007)?
The Government is invited to submit copies of all the relevant documents concerning the applicant’s case, including but not limited to the minutes of all the hearings, documentary evidence against the applicant, and the written submissions of the applicant and his lawyer throughout the proceedings.
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