Published on 29 September 2025
SECOND SECTION
Application no. 38474/23
Coșkun EVGİN
against Türkiye
lodged on 3 October 2023
communicated on 11 September 2025
SUBJECT MATTER OF THE CASE
The application mainly concerns an alleged breach of the applicant’s right of access to a court due to the Constitutional Court’s rejection of the applicant’s individual application as being lodged out of the thirty-day time-limit for lodging individual applications.
On 13 April 2018 the Antalya Assize Court convicted the applicant to ten years and six months’ imprisonment on account of membership of an armed terrorist organisation, namely FETÖ/PDY (the “Fetullahist Terror Organisation/Parallel State Structure”), on the basis of, inter alia, the applicant’s alleged use of the encrypted messaging application “ByLock” and the information obtained from a Micro SD card submitted by the anonymous witness “Garson”. On 21 March 2019 the Ankara Regional Appeal Court dismissed the appeal. On 27 October 2021 his conviction was upheld by the Court of Cassation.
The applicant remained in pre-trial detention throughout the criminal proceedings and was represented by a defence lawyer assigned ex officio by the Antalya Bar Association. According to the applicant’s submissions, the decision of the Court of Cassation dated 27 October 2021 was notified to the applicant on 21 February 2022 through the prison administration upon his petition requesting the notification on the ground that he was unable to meet his lawyer.
On 15 March 2022 the applicant lodged an individual application with the Constitutional Court alleging violations of, inter alia, Articles 5, 6 §§ 1 and 3 (b) and (c), 7 and 8 of the Convention. On 7 June 2023 the Constitutional Court reclassified the complaints and examined them under the heads of (i) an alleged violation of the right to liberty and security in relation to his pre-trial detention and (ii) the right to a fair trial. The Constitutional Court, referring to its Hüseyin Aşkan judgment (no. 2017/15649, 21 July 2020), found the complaints regarding an alleged violation of the right to a fair trial inadmissible on account of the applicant’s failure to comply with the statutory thirty-day time-limit. The Constitutional Court held that the applicant should be deemed to have been apprised of the Court of Cassation’s decision (dated 27 October 2021) on 28 January 2022, on which date his lawyer assigned ex officio by the bar association had read that court’s judgment in the national judicial network system (“UYAP”).
Relying on Article 5 § 4 of the Convention, the applicant complains that his requests for release were not examined by the Regional Appeal Court and the Court of Cassation.
In his additional statements attached to the application form, the applicant complains that the rejection of his individual application by the Constitutional Court amounted to an infringement of his right to access to a court under Article 6 § 1 of the Convention. In his additional statements and in the factual statements part of his application form, the applicant alleges that the Constitutional Court’s decision was manifestly erroneous and arbitrary, as it had calculated the application period from the date on which the Court of Cassation’s decision had been read by his ex officio appointed lawyer on the UYAP rather than from the date of notification of this decision to himself. He argued that, as he had stated in his petitions submitted throughout the criminal proceedings, he could not meet with his lawyer due to his compulsory transfer to a prison in a different province. Moreover, he argued that his lawyer was under no obligation to notify him of the decision of the Court of Cassation as his duty ended with the finalization of the decision pursuant to Article 7 of the Regulation on the Procedures and Principles Regarding the Assignment of Defence Counsel and Attorneys and Payments to be Made Pursuant to the Criminal Procedure Law.
The applicant further complains under Article 6 § 1 of the Convention that he could not obtain a copy of the ByLock data, and that this data was not subjected to direct and independent examination by the domestic courts, in violation of the principle of equality of arms and adversarial proceedings.
Invoking Article 6 § 1 of the Convention, he further asserts that neither he himself nor his lawyer were provided with a copy of the digital raw data obtained from the Micro SD card handed over by the anonymous witness Garson, in violation of the principle of equality of arms.
The applicant also complains that the failure to forward the written opinion of the Principal Public Prosecutor at the Court of Cassation to him, despite his request, was contrary to the principle of equality of arms under Article 6 § 1 of the Convention.
He also complains under Article 6 § 3 (b) that he was unable to access the documents pertaining to his criminal trial as the prison administration had not allowed him to examine them.
Relying on Article 6 § 3 (c) of the Convention, the applicant also alleges that he was deprived of practical and effective legal assistance as he was unable to meet with his defence lawyer throughout the criminal proceedings due to his compulsory transfer to a prison in a different province.
The applicant also complains under Article 7 of the Convention that he was convicted for acts which did not constitute a crime at the time of the events.
Under Article 8 of the Convention, the applicant alleges that the retention of his telecommunication data by the Information and Communication Technology Authority (“Bilgi Teknolojileri ve İletişim Kurulu”, “BTK”) infringed his right to respect for private life.
He also complains under Article 8 of the Convention that the search of his home at night time and in the absence of two witnesses was unlawful and therefore was in breach of his right to respect for private and family life.
QUESTIONS TO THE PARTIES
1. Has the applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention, given that the Constitutional Court declared his individual application inadmissible for non-compliance with the statutory time-limit (see, for the general principles, Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 69-77, 25 March 2014)?
2. Has the applicant’s objection to his post-conviction detention been examined by the domestic courts as required by Article 5 § 4 of the Convention (see, for example, Stollenwerk v. Germany, no. 8844/12, § 36, 7 September 2017; Filat v. the Republic of Moldova, no. 11657/16, §§ 23-36, 7 December 2021; and Yılmaz Aydemir v. Türkiye, no. 61808/19, §§ 36-37, 23 May 2023)?
3. Can the applicant’s allegation of a breach of his right of access to a court in his additional statements attached to the application form concerning the rejection by the Constitutional Court of his individual application be considered as a complaint regarding access to a court?
If so, has there been a breach of the applicant’s right of access to a court under Article 6 of the Convention on account of the dismissal of his application by the Constitutional Court due to his alleged non-compliance with the thirty-day time-limit for lodging an individual application (see, mutatis mutandis, Üçdağ v. Turkey, no. 23314/19, §§ 37‑40, 31 August 2021)?
4. Did the applicant have a fair hearing in the determination of the criminal charge against him, in accordance with Article 6 § 1 of the Convention? In particular:
(a) (i) Was the data regarding the applicant’s use of ByLock, including that provided by the National Intelligence Organisation (MİT), submitted to an independent expert examination, in order to determine the integrity, the accuracy and the consistency of the data obtained?
(ii) In view of the applicant’s allegation that he could not obtain a copy of the ByLock data, was the applicant provided with a real and effective opportunity (i) to have knowledge of and comment on all digital evidence adduced or observations filed by the prosecution in that respect with the domestic courts; (ii) to review all material evidence in the possession of the prosecution for or against him; and (iii) to challenge the authenticity and reliability of the digital evidence used against him and to oppose its use as required by the principles of equality of arms and adversarial proceedings (see Yüksel Yalçınkaya v. Türkiye [GC], no. 15669/20, §§ 300-356, 26 September 2023)?
(b) In view of the applicant’s allegation that he could not obtain a copy of the data submitted by the anonymous witness Garson, was the applicant provided with a real and effective opportunity to challenge the authenticity and reliability of the digital evidence used against him and to oppose its use as required by the principles of equality of arms and adversarial proceedings (see Yüksel Yalçınkaya, cited above, §§ 324-341)?
(c) Has there been a breach of the principles of adversarial proceedings and equality of arms on account of the non‑communication of the written opinion of the Principal Public Prosecutor at the Court of Cassation to the applicant, despite the applicant’s explicit request in his petition dated 21 October 2019 (see Günana and Others v. Turkey, nos. 70934/10 and 4 others, §§ 84-85, 20 November 2018; Bosak and Others v. Croatia, nos. 40429/14 and 3 others, §§ 91-101, 6 June 2019)?
(d) Was the applicant’s inability to examine the documents pertaining to his criminal trial, due to his transfer to another prison, hinged on his right to having adequate time and facilities in preparation of his defence as required by Article 6 §§ 1 and 3 (c) of the Convention (see Moiseyev v. Russia, no. 62936/00, §§ 213-18, 9 October 2008; Rasmussen v. Poland, no. 38886/05, § 49, 28 April 2009)?
(e) Did the applicant receive practical and effective legal assistance as required by Article 6 §§ 1 and 3 (c) of the Convention, given his inability to meet with his defence lawyer as a result of his compulsory transfer to a prison in a different province (see Artico v. Italy, 13 May 1980, §§ 33‑36, Series A no. 37, and Daud v. Portugal, 21 April 1998, § 38, Reports of Judgments and Decisions 1998-II)?
5. Was the applicant’s conviction for membership of a terrorist organisation compatible with the requirements of Article 7 of the Convention having regard to the acts on which his conviction was based (see, in particular, mutatis mutandis, Yüksel Yalçınkaya, cited above, §§ 214‑72)?
6. Does the retention by the Communication and Information Technology Authority ("BTK") and/or internet service providers of information relating to data related to the applicant’s Internet traffic and its communication in the course of the criminal proceedings initiated against him, constitute an interference with his right to respect for private life, within the meaning of Article 8 § 1 of the Convention? If so, was this interference provided for by law and necessary within the meaning of Article 8 § 2 of the Convention (Benedik v. Slovenia, no. 62357/14, §§ 100-06, 117-118, and 120 ss., 24 April 2018)?
7. Has there been an interference with the applicant’s right to respect for his private and family life and his home, within the meaning of Article 8 § 1 of the Convention, on account of the search conducted in his home?
If so, was the interference in accordance with the law and necessary in terms of Article 8 § 2 (see, mutatis mutandis, Budak v. Turkey, no. 69762/12, §§ 51-59, 16 February 2021)?
In particular, was the search conducted at the applicant’s home at night time compatible with the requirements of Article 118 § 2 of the Code of Criminal Procedure?
Also, did the police officers ensure the presence of the public prosecutor or of two attesting witnesses during the search, as was required by Article 119 § 4 of the Code of Criminal Procedure (see Budak, cited above, §§ 53-59)?