Communicated on 5 May 2017
SECOND SECTION
Application no. 32841/09
İskender TUTAR against Turkey
and 13 other applications
(see list appended)
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 those statements taken in the absence of a lawyer and allegedly under duress (see Salduz v. Turkey [GC], no. 36391/02, ECHR 2008; Özcan Çolak v. Turkey, no. 30235/03, §§ 47-50, 6 October 2009; and İbrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3 others, ECHR 2016).
It further concerns the alleged lack of independence and impartiality of the trial court due to the presence of a military judge in its composition for the first six years of the trial (see Incal v. Turkey, 9 June 1998, Reports of Judgments and Decisions 1998‑IV; and compare Ceylan v. Turkey (dec.), no. 68953/01, 30 August 2005).
The cases raise issues similar to those in the case of Abdulgafur Batmaz v. Turkey (no. 44023/09, 24 May 2016).
QUESTIONS tO THE PARTIES
1. 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, 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 İbrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3 others, ECHR 2016)?
2. Did the use of statements taken under alleged duress and in the absence of a lawyer violate the applicants’ right to a fair hearing (see Özcan Çolak v. Turkey, no. 30235/03, §§ 47-50, 6 October 2009)?
3. Did the applicants receive a fair trial by an independent and impartial tribunal as required by Article 6 § 1 of the Convention (see İncal v. Turkey, 9 June 1998, Reports of Judgments and Decisions 1998‑IV; and compare Ceylan v. Turkey (dec.), no. 68953/01, 30 August 2005)?
In respect of the applicant in application no. 35814/09:
4. Has the applicant exhausted the domestic remedies in respect of his complaint under Article 3 of the Convention? In particular, has the applicant filed an objection against the Diyarbakır public prosecutor’s decision of non-prosecution dated 24 October 1995?
The Government are invited to submit copies of all the relevant documents concerning the applicants’ case, including but not limited to the minutes of all the hearings, documentary evidence against the applicants and the reasoned judgment of the trial court, the applicants’ and their lawyers’ written submissions both before the trial court and before the Court of Cassation.
The Government are further requested to submit the pre-trial statements of the applicant in application no. 35831/09.
No.
Application
no. and date of introduction
Applicant name
date of birth
place of residence
nationality
Represented by
Date of arrest
32841/09
18/05/2009
İskender TUTAR
22/12/1975
Diyarbakır
Turkish
On 10 September 1994 the applicant was taken into police custody on suspicion of being a member of Hizbullah, an illegal organisation. The applicant’s statements before the police, the public prosecutor and the judge were taken in the absence of a lawyer.
35788/09
04/06/2009
Mehmet Ali ENEZE
04/02/1974
Şanlıurfa
Turkish
On 12 September 1994 the applicant was taken into police custody on suspicion of being a member of Hizbullah, an illegal organisation. The applicant’s statements before the police, the public prosecutor and the judge were taken in the absence of a lawyer.
35796/09
22/05/2009
Şahin YAPICI
16/08/1975
Diyarbakır
Turkish
On 10 September 1994 the applicant was taken into police custody on suspicion of being a member of Hizbullah, an illegal organisation. The applicant’s statements before the police, the public prosecutor and the judge were taken in the absence of a lawyer.
35801/09
22/05/2009
Mehmet Zeki İNAL
01/01/1974
Diyabakır
Turkish
On 12 September 1994 the applicant was taken into police custody on suspicion of being a member of Hizbullah, an illegal organisation. The applicant’s statements before the police, the public prosecutor and the judge were taken in the absence of a lawyer.
35808/09
21/05/2009
Sıdık KURT
01/01/1976
Diyarbakır
Turkish
On 13 September 1999 the applicant was taken into police custody on suspicion of being a member of Hizbullah, an illegal organisation. The applicant’s statements before the police, the public prosecutor and the judge were taken in the absence of a lawyer.
35814/09
20/05/2009
Sedat ŞERAN
27/01/1974
Diyarbakir
Turkish
On 8 September 1994 the applicant was taken into police custody on suspicion of being a member of Hizbullah, an illegal organisation. The applicant’s statements before the police, the public prosecutor and the judge were taken in the absence of a lawyer.
35824/09
15/06/2009
Mustafa SEVİM
01/05/1972
Diyarbakır
Turkish
On 12 September 1994 the applicant was taken into police custody on suspicion of being a member of Hizbullah, an illegal organisation. The applicant’s statements before the police, the public prosecutor and the judge were taken in the absence of a lawyer.
35831/09
15/06/2009
Kasım ERKAN
01/01/1974
Sivas
Turkish
On 9 September 1994 the applicant was taken into police custody on suspicion of being a member of Hizbullah, an illegal organisation. The applicant’s statements before the police, the public prosecutor and the judge were taken in the absence of a lawyer.
35839/09
29/05/2009
Mecit DAMAR
06/08/1974
Ankara
Turkish
On 31 July 2000 the applicant was taken into police custody on suspicion of being a member of Hizbullah, an illegal organisation. The applicant’s statements before the police, the public prosecutor and the judge were taken in the absence of a lawyer.
38749/09
01/07/2009
Mahsum NAZLI
01/03/1974
Diyarbakır
Turkish
On 11 September 1994 the applicant was taken into police custody on suspicion of being a member of Hizbullah, an illegal organisation. The applicant’s statements before the police, the public prosecutor and the judge were taken in the absence of a lawyer.
38756/09
26/06/2009
Mustafa DEMİR
11/04/1973
Diyabakır
Turkish
On 6 December 1999 the applicant was taken into police custody on suspicion of being a member of Hizbullah, an illegal organisation. The applicant’s statements before the police, the public prosecutor and the judge were taken in the absence of a lawyer.
47700/09
24/08/2009
Tamer GEZER
01/08/1972
Adiyaman
Turkish
On 6 December 1999 the applicant was taken into police custody on suspicion of being a member of Hizbullah, an illegal organisation. The applicant’s statements before the police, the public prosecutor and the judge were taken in the absence of a lawyer.
49015/09
18/08/2009
Veysi ÜLSEN
10/02/1968
Adana
Turkish
On 10 September 1994 the applicant was taken into police custody on suspicion of being a member of Hizbullah, an illegal organisation. The applicant’s statements before the police, the public prosecutor and the judge were taken in the absence of a lawyer.
49026/09
20/08/2009
Güro ADEM
01/01/1972
Şanlıurfa
Turkish
On 9 September 1994 the applicant was taken into police custody on suspicion of being a member of Hizbullah, an illegal organisation. The applicant’s statements before the police, the public prosecutor and the judge were taken in the absence of a lawyer.
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