Communicated on 11 May 2020
Published on 2 June 2020
SECOND SECTION
Applications nos. 58829/10 and 24484/15
Alican KERİMOĞLU against Turkey
and Abdullah Sabri KOCAMAN against Turkey
lodged on 16 August 2010 and 7 May 2015 respectively
SUBJECT MATTER OF THE CASE
The applications concern the alleged unfairness of the criminal proceedings against the applicants due to lack of sufficient reasons provided by the domestic courts in their judgments, by which the applicants were convicted and sentenced to different terms of imprisonment (see Vetrenko v. Moldova, no. 36552/02, § 55, 18 May 2010; Ajdarić v. Croatia, no. 20883/09, § 51, 13 December 2011; and Rostomashvili v. Georgia, no. 13185/07, § 59, 8 November 2018).
The application no. 58829/10 further concerns the alleged unfairness of the criminal proceedings against the applicant on account of his alleged inability to examine the witnesses (İ.Ö. and the gendarmerie officer M.A.), the victim (Y.A.) and the video recordings before the trial court (see for general principles Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, ECHR 2011 as refined in Schatschaschwili v. Germany [GC], no. 9154/10, §§ 107 and 118, ECHR 2015; see also Murtazaliyeva v. Russia [GC], no. 3665/05, §§ 139 and 168 and Ünel v Turkey, no. 35686/02, §§ 39-47, 27 May 2008 in respect of defence witnesses).
In both applications, the applicants, who were detained in the course of their trial, were found guilty by the domestic courts and their convictions became final when the Court of Cassation upheld them. Subsequently, the applicants lodged their applications with the Court and while these applications were pending, they informed the Court that their convictions had been quashed following the applications lodged by the Principal Public Prosecutor at the Court of Cassation to have the Court of Cassation’s decision set aside, an extraordinary remedy provided for by Article 308 of the Code Criminal Procedure.
Consequently, the criminal proceedings in application no. 58829/10 are now pending before the trial court whereas the criminal proceedings in application no. 24484/15 have come to an end when the acquittal decision delivered in respect of the applicant following a new trial become final in the absence of an appeal.
It appears that that the applicant in application no. 58829/10 served part of his sentence until the application of the above-mentioned extraordinary remedy under Article 308 of the Code of Criminal Procedure whereas the applicant in application no. 24484/15 had been detained between 9 February 2012 and 23 March 2012 prior to his conviction by the trial court on 30 May 2012.
Relying on Article 6 § 1 of the Convention, the applicants complain that the trial courts failed to give sufficient reasons in their judgment when convicting them and the higher courts failed to respond their arguments in this context after their convictions. Furthermore the applicant Alican Kerimoğlu alleged under Article 6 § 3 (d) that the domestic courts failed to provide him the opportunity to examine a certain defence witness and the victim in person.
QUESTIONS TO THE PARTIES
COMMON QUESTIONS
1. May the applicants still claim to be victims of a violation of Article 6 of the Convention within the meaning of Article 34 thereof? In particular, did the reopening of the criminal proceedings and their subsequent acquittal afford them adequate redress (see in particular Sakhnovskiy v. Russia [GC], no. 21272/03, §§ 66 and 84, ECHR 2010; Pisano v. Italy [GC], no. 36732/97, §§ 33 and 39, ECHR 2002; Üstün v. Turkey, no. 37685/02, §§ 18‑25, 10 May 2007; and Koç and Tambaş v. Turkey (dec.), no. 46947/99, 24 February 2005)?
2. In that connection, did the applicants have at their disposal an effective remedy in the Turkish legal system for the periods during which they were kept in prison either as a detainee (tutuklu) or as a convict (hükümlü) (see Arat v. Turkey, no. 10309/03, §§ 46-8, 10 November 2009)?
3. Would it be possible to conclude that the matter has been resolved within the meaning of Article 37 § 1 (b) of the Convention following the applicants’ retrial and their subsequent acquittal by the domestic courts (see Pisano, cited above),
4. Did the applicants have a fair hearing in the determination of the criminal charges against them, in accordance with Article 6 § 1 of the Convention? In particular, were sufficient reasons given by the domestic courts for the applicants’ convictions (see Vetrenko v. Moldova, no. 36552/02, § 55, 18 May 2010; Ajdarić v. Croatia, no. 20883/09, § 51, 13 December 2011; and Rostomashvili v. Georgia, no. 13185/07, § 59, 8 November 2018)?
ADDITIONAL CASE-SPECIFIC QUESTION IN RESPECT OF APPLICATION NO.58829/10
1.a. Was the applicant able to examine the witness İ.Ö. and the victim Y. as required by Article 6 § 3 (d) of the Convention? What steps did the domestic courts take to secure the attendance of the witnesses before the trial court?
b. Was there a good reason for the non-attendance of those witnesses at the trial? Were the factual or legal grounds of such a reason reflected in the domestic courts’ judgments?
c. Did the statements of those witnesses serve as the sole or decisive evidence for the applicant’s conviction?
d. Did the domestic courts’ judgments indicate that they had approached the statements given by the witnesses with any specific caution?
e. Did the domestic courts provide the applicant with procedural safeguards aimed at compensating for the alleged lack of opportunity to directly examine the witnesses before the trial court?
2. Was the principle of equality of arms respected in relation to the collection and examination of evidence that was allegedly capable of influencing the outcome of the proceedings in favour of the applicant? In that connection, did the trial court examine and provide reasons in respect of the applicant’s petition dated 25 June 2008 in which he asked the trial court to conduct an additional investigation (soruşturmanın genişletilmesi) in the case by examining further evidence and summoning the gendarmerie officer as a witness (see, mutatis mutandis, Murtazaliyeva v. Russia [GC], no. 36658/05, §§ 139-168, 18 December 2018, and Mirilashvili v. Russia, no. 6293/04, 11 December 2008)?
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