Communicated on 5 November 2018
SECOND SECTION
Applications nos. 8019/12 and 10688/12
Kemal GÜNGÜ and Others against Turkey
and Hasan SEVİM against Turkey
lodged on 16 December 2011 and 6 January 2012 respectively
SUBJECT MATTER OF the CASE
The applications 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 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).
The applications also concern the use of the applicants’ police statements allegedly obtained under ill-treatment to convict them and the alleged absence of the applicants’ lawyer during the investigative measures taken in the course of the preliminary investigation stage (see Gäfgen v. Germany [GC], no. 22978/05, §§ 165-166, ECHR 2010, and Göçmen v. Turkey, no. 72000/01, §§ 73-74, 17 October 2006 and see, mutatis mutandis, Hakan Duman v. Turkey, no. 28439/03, 23 March 2010).
Application no. 10688/12 also concerns the use by the trial court of the other co-defendants’ statements taken under alleged duress and in the absence of a lawyer (see Erkapić v. Croatia, no. 51198/08, 25 April 2013; Ömer Güner v. Turkey, no. 28338/07, 4 September 2018; and compare Dominka v. Slovakia, (dec.) no. 14630/12, §§ 28-36, 3 April 2018). It further pertains to 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).
The Court has already found a violation of Article 3 of the Convention in respect of the applicant in application no. 10688/12 in Yeşil and Sevim v. Turkey, (no. 34738/04, 5 June 2007). Furthermore, the applicants and the Government reached friendly settlements concerning the applicant’s complaints under Article 3 of the Convention in Doğan v. Turkey (no. 24939/94, 10 July 2001), Güngü v. Turkey (no. 24945/94, 18 December 2001), and Kalın and Others v. Turkey (no. 24849/94 and 2 others, 28 October 2003.
COMMON QUESTIONS
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 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)?
2. Has there been a breach of Article 6 § 3 (c) of the Convention, as a result of the absence of the applicants’ lawyers during the investigative measures taken in the course of the preliminary investigation (see, mutatis mutandis, Hakan Duman v. Turkey, no. 28439/03, 23 March 2010)?
ADDITIONAL CASE - SPECIFIC QUESTIONS
In respect of the applicants in application no. 8019/12
Having regard to the friendly settlements concerning the applicants’ complaints under Article 3 of the Convention in Doğan v. Turkey (no. 24939/94, 10 July 2001), Güngü v. Turkey (no. 24945/94, 18 December 2001), and Kalın and Others v. Turkey (no. 24849/94 and 2 others, 28 October 2003) judgments, did the applicants have a fair trial within the meaning of Article 6 § 1 of the Convention? In particular, did the Istanbul Assize Court use the police statements taken from the applicants under ill‑treatment? Has there been a violation of Article 6 § 1 of the Convention in this respect (see Gäfgen v. Germany [GC], no. 22978/05, §§ 165-166, ECHR 2010, and Göçmen v. Turkey, no. 72000/01, §§ 73-74, 17 October 2006)?
In respect of the applicant in application no. 10688/12
1. Having regard to the Court’s conclusion under Article 3 of the Convention in respect of the same applicant in Yeşil and Sevim v. Turkey, (no. 34738/04, 5 June 2007) judgment, did the applicant have a fair trial within the meaning of Article 6 § 1 of the Convention? In particular, did the Istanbul Assize Court use the evidence obtained from the applicant under ill-treatment? Has there been a violation of Article 6 § 1 of the Convention in this respect (see Gäfgen v. Germany [GC], no. 22978/05, §§ 165-166, ECHR 2010, and Göçmen v. Turkey, no. 72000/01, §§ 73-74, 17 October 2006).
2. Have the requirements of a fair trial within the meaning of Article 6 §§ 1 and 3 (d) of the Convention been satisfied as regards the admission into evidence of the incriminating statements which other co-defendants had given to the police under alleged duress and in the absence of their lawyers (see Erkapić v. Croatia, no. 51198/08, 25 April 2013; Ömer Güner v. Turkey, no. 28338/07, 4 September 2018; and compare Dominka v. Slovakia, (dec.) no. 14630/12, §§ 28-36, 3 April 2018?
3. 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 pre-trial statements of the applicants and of their co-defendants, minutes of all the hearings, documentary evidence against the applicants and the reasoned judgment(s) of the trial courts, the applicants’ and their lawyers’ written submissions both before the trial courts and before the Court of Cassation.
LIST OF APPLICATionS
No.
Application
no. and date of introduction
Applicant name
date of birth
place of residence
nationality
Represented by
8019/12
16/12/2011
Kemal GÜNGÜ
20/05/1973
Kığı
Turkish
Metin DOĞAN
01/01/1969
Çat
Turkish
Talip KALIN
02/01/1967
Tutak
Turkish
Hacer ÇEKİÇ GÜNDÜZ
10688/12
06/01/2012
Hasan SEVİM
05/09/1954
Tunceli
Turkish
Faruk Nafiz ERTEKİN
Keleş ÖZTÜRK
Full & Egal Universal Law Academy