Communicated on 19 September 2017
SECOND SECTION
Application no. 20458/17
Yaşar ERİŞ
against Turkey
lodged on 22 February 2017
SUBJECT MATTER OF THE CASE
The application concerns the alleged improper examination by the Constitutional Court of the applicant’s complaints concerning the denial of legal assistance during the investigation stage and the use of evidence allegedly obtained in the absence of a lawyer and under duress by the trial court to convict him (see, mutatis mutandis, Dulaurans v. France, no. 34553/97, 21 March 2000).
It further concerns the alleged unfairness of the criminal proceedings due to the systemic restriction imposed on the applicant’s 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 the evidence allegedly obtained in the absence of a lawyer and under duress to convict him (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). The applicant complains of a violation of Article 6 §§ 1 and 3 (c) of the Convention.
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?
(a) In relation to the applicant’s complaints regarding the denial of legal assistance and the use of evidence allegedly obtained in the absence of a lawyer and under duress to convict him, did the Constitutional Court discharge its duty to conduct a proper examination of his submissions and arguments before declaring those complaints inadmissible for non‑exhaustion of domestic remedies (see, mutatis mutandis, Dulaurans v. France, no. 34553/97, 21 March 2000)?
In particular, did the Constitutional Court examine the applicant’s appeal dated 20 November 2013, which explicitly contained the above-mentioned complaints, before concluding that he had failed to raise them before the Court of Cassation?
(b) Given that the applicant’s right of access to a lawyer was restricted during his police custody, pursuant to section 31 of Law no. 3842 and taking into account the Court’s well established case-law according to which complaints of systemic restriction on the right to legal assistance would be devoid of any prospect of success (see, among many others, Taşçıgil v. Turkey, no. 16943/03, § 32, 3 March 2009), was the applicant required to raise this matter before the Court of Cassation?
(c) 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 applicant during the preliminary investigation (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)?
(d) Were there any procedural safeguards in place with regard to the alleged procedural failings at the pre-trial stage? Did the trial court examine the admissibility of the evidence before going on to examine the merits of the case? To what extent did the national courts respect Article 148 of the Code of Criminal Procedure which provides for a prohibition to use the police statements taken in the absence of a lawyer in case they have not been confirmed before a judge or a court?
- The Government are invited to submit copies of all the relevant documents related to the criminal proceedings against the applicant.
Full & Egal Universal Law Academy