Communicated on 3 April 2019
SECOND SECTION
Application no. 66616/10
Erol Maks KOHEN against Turkey
and 3 other applications
(see list appended)
SUBJECT MATTER OF THE CASES
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 the evidence taken in the absence of a lawyer (see Ibrahim and Others v. the United Kingdom [GC], no. 50541/08 and 3 others, 13 September 2016; Beuze v. Belgium [GC], no. 71409/10, 9 November 2018; Erkapic 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).
They further pertain to the principle of equality of arms as regards the taking and examining of expert reports at the trial stage (see Mirilashvili v. Russia, no. 6293/04, §§161-6, 11 December 2008).
Lastly, they also concern the complaint under Article 6 §§1 and 3 (b) of the Convention concerning the trial court’s alleged failure to specify the documents on the basis of which it asked the applicants to make additional defence submissions considering that they might be convicted of certain offences on multiple counts.
QUESTIONS tO THE PARTIES
1. Did the applicants have a fair trial within the meaning of Article 6 § 1 of the Convention?
In particular, having regard to the principles adopted by the Grand Chamber in the case of Ibrahim and Others v. the United Kingdom ([GC], no. 50541/08 and 3 others, 13 September 2016) and Beuze (v. Belgium [GC], no. 71409/10, 9 November 2018), has there been a breach of Article 6 §§ 1 and 3 (c) of the Convention?
In that connection, were there any compelling reasons to restrict the applicants’ right of access to a lawyer? If so, had they been temporary and based on an individual assessment of the particular circumstances of the cases?
– If answered in the affirmative, could the criminal proceedings as a whole against the applicants be considered as fair within the meaning of Article 6 § 1 of the Convention? In particular, which of the relevant procedural safeguards (some of which listed non-exhaustively in § 274 of Ibrahim and Others) were taken into account by the domestic courts in order to assess the impact of procedural shortcomings at the pre-trial stage on the overall fairness of the criminal proceedings?
– If answered in the negative, were there any exceptional circumstances in the present case, to demonstrate that the absence of access to legal advice during the applicants’ police custody had not caused irretrievable prejudice to the overall fairness of the trial?
2. Have the requirements of a fair trial within the meaning of Article 6 § 1 of the Convention been satisfied as regards the admission into evidence of the incriminating statements which certain other co-defendants had given to the police in the absence of a lawyer (see Erkapic 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. Was the principle of equality of arms respected in relation to the taking and examining of expert reports at the trial stage (see Mirilashvili v. Russia, no. 6293/04, §§161-6, 11 December 2008)?
4. Were the applicants given sufficient time and necessary facilities to prepare their defence submissions in the light of the alleged failure of the trial court to specify the documents on the basis of which it asked the defendants to make additional defence submissions towards the end of the trial?
The Government are invited to submit copies of all the relevant documents concerning the applicants’ cases, including but not limited to the minutes of all the hearings, the reasoned judgments of the trial courts, the evidence listed therein, and the written submissions of the applicants and their lawyer throughout the proceedings.
APPENDIX
No.
Application no.
Lodged on
Applicant
Date of birth
Place of residence
Represented by
1.
66616/10
19/10/2010
Erol Maks KOHEN
11/08/1959
Istanbul
İsmail Deniz GÖKKILIÇ
2.
66625/10
19/10/2010
Nail TAHSİLDAROĞLU
01/01/1948
Istanbul
İsmail Deniz GÖKKILIÇ
3.
66646/10
20/10/2010
Ezra ÖREN
30/04/1961
Istanbul
İsmail Deniz GÖKKILIÇ
4.
66650/10
20/10/2010
Hüseyin ÖZÇALLI
01/03/1944
Istanbul
İsmail Deniz GÖKKILIÇ
Full & Egal Universal Law Academy