Communicated on 28 August 2017
SECOND SECTION
Application no. 12398/10
Şahin TÜCER
against Turkey
lodged on 23 February 2010
SUBJECT MATTER OF THE CASE
The application concerns 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 (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). It further concerns the admissibility and the use by the trial court of the police statements given by the applicant and the accomplices allegedly in the absence of a lawyer and under duress to convict the former. Moreover, it also concerns the applicant’s lawyer’s absence in the last hearing before the trial court (see Hanževački v. Croatia, no. 17182/07, 16 April 2009).
Last but not least, it relates to the applicant’s inability to question certain witnesses against him (see Schatschaschwili v. Germany [GC], no. 9154/10, ECHR 2015, and Gökbulut v. Turkey, no. 7459/04, 29 March 2016).
The application further relates to the lawfulness of the search of the house in which the applicant was staying as a guest (see, mutatis mutandis, Işıldak v. Turkey, no. 12863/02, 30 September 2008) and the use of evidence obtained thereby to convict him (see, mutatis mutandis, Kaletsch v. Germany (dec.), no. 31890/06, 23 June 2009).
It also pertains to the applicant’s freedom of expression on account of his trial for submitting a petition to his university in which he had requested that Kurdish language classes be introduced as an optional module (see Döner and Others v. Turkey, no. 29994/02, 7 March 2017).
Lastly, it concerns the applicant’s freedom of assembly given his conviction on the basis of his participation to a protest that took place on 6 November 2001 (see, among others, Akgöl and Göl v. Turkey, nos. 28495/06 and 28516/06, 17 May 2011).
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? In particular:
a) 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)?
b) Was the applicant able to defend himself through legal assistance of his own choosing, as required by Article 6 § 3 (c) of the Convention? Did the applicant’s lawyer’s absence as a result of his wife giving birth on the day of the last hearing prejudice the applicant’s defence rights to a degree incompatible with the requirements of a fair trial (see Hanževački v. Croatia, no. 17182/07, 16 April 2009)?
c) Has the trial court examined the admissibility of the statements of the applicant, Y.P., A.K., and Ö.O. which were allegedly taken in the absence of a lawyer and under duress when relying on these statements to convict the applicant?
d) Was the applicant able to examine the witnesses, namely Y.P., A.K., and Ö.O. against him as required by Article 6 § 3 (d) of the Convention? If not, has there been a breach of the applicant’s right to a fair trial provided for by Article 6 §§ 1 and 3 (d) of the Convention due to his inability to confront those witnesses (see Schatschaschwili v. Germany [GC], no. 9154/10, ECHR 2015, and Gökbulut v. Turkey, no. 7459/04, 29 March 2016)?
e) Did the admission as evidence of the results of the search of the home in which the applicant was staying as a guest impair the fairness of the proceedings in question (see, mutatis mutandis, Kaletsch v. Germany (dec.), no. 31890/06, 23 June 2009)?
2. Did the search carried out at the house in which the applicant had been staying as a guest interfere with his rights under Article 8 of the Convention? If so, has there been a violation of Article 8 of the Convention (see, mutatis mutandis, Işıldak v. Turkey, no. 12863/02, 30 September 2008)?
3. Was there a violation of Article 10 of the Convention on account of the applicant’s criminal prosecution for having petitioned the university authorities to provide optional Kurdish language courses (see Döner and Others v. Turkey, no. 29994/02, 7 March 2017)? Did the domestic courts adduce relevant and sufficient reasons for that decision?
4. Was there a violation of Article 11 of the Convention on account of the applicant’s conviction for participation in a protest on 6 November 2001 (see Akgöl and Göl v. Turkey, nos. 28495/06 and 28516/06, 17 May 2011)? Did the domestic courts adduce relevant and sufficient reasons for that decision?
- The Government are invited to submit a copy of the following:
a) All the relevant documents concerning the criminal proceedings against the applicant, including but not limited to the minutes of all the hearings, all the documents relating to the search carried out at “Bahçelievler, Cumhuriyet Mahallesi, Keklik Sok. No: 21/7, Istanbul” on 28 May 2002, and the protest of 6 November 2002 in respect of which the applicant was convicted.
b) The statements of Y.P., A.K., and Ö.O. before the police, the public prosecutor, the investigating judge and during the criminal proceedings before the Thirteenth Division of the Istanbul Assize Court (former Third Division of the Istanbul State Security Court, the file number 2001/333 E.).
c) Fatih Public Prosecutor’s investigation file (2002/14152 Hazırlık no) concerning the ill-treatment allegations of the applicant,
d) Fatih Public Prosecutor’s investigation files (2001/29166 Hazırlık no and 2002/2562 Hazırlık no) concerning the ill-treatment allegations of Y.P., A.K. and, Ö.O..
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