Communicated on 18 December 2019
SECOND SECTION
Application no. 7155/12
Hıdır YEŞIL
against Turkey
lodged on 12 January 2012
SUBJECT MATTER OF THE CASE
The application concerns the alleged unfairness of the criminal proceedings due to the systemic restriction imposed on the applicant’s right of access to a lawyer during the pre-trial stage pursuant to Law no. 3842 and the subsequent admission by the trial court into evidence of his statements taken in the absence of a lawyer (see Beuze v. Belgium [GC], no. 71409/10, 9 November 2018; Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3 others, ECHR 2016; and Salduz v. Turkey [GC], no. 36391/02, ECHR 2008).
The application further pertains to the alleged breach of the principle of equality of arms in relation to taking and examination of evidence, which were used by the trial court to convict the applicant. In particular, it concerns the alleged undue restriction of the applicant’s defence rights vis-à-vis the document number five entitled “activity report” (5 ile işaretli faaliyet raporu), which alleged to have been written by the applicant, owing, mainly to the trial court’s refusal to commission an alternative expert examination in respect of it (see Stoimenov v. the former Yugoslav Republic of Macedonia, no. 17995/02, 5 April 2007).
The Court has already found a violation of Articles 3 and 13 of the Convention finding it established that the applicant had been subjected to torture during his police custody between 9 September 1996 and 16 September 1996 (see Yeşil and Sevim v. Turkey, no. 34738/04, 5 June 2007).
The applicant complains that the national courts restricted his defence rights as they failed to take into account his submissions that he had not written the activity report, one of the three pieces of evidence listed by the trial court in the part of his judgment where evidence in respect of him was listed.
The applicant adamantly denied having written such a document starting from his statements to the public prosecutor on and asked the national courts to take his writing samples with a view to transmitting them to the Forensic Medicine Institute for a graphological examination. The trial court initially rejected this request referring to a police report dated 16 September 1996 in which it was concluded that the activity report had been written by the applicant. Nevertheless, at a certain stage of the proceedings the trial court changed its approach and decided to collect the applicant’s writing samples from his university and high school and from the prisons he had been in. After the collection of those documents, the trial court decided not to refer the matter to the Forensic Medicine Institute for a further examination once again referring to the police report dated 16 September 1996.
Subsequently, the applicant submitted that despite the fact that the national courts concluded that the activity report was found in the house search of E.K., the search record had not indicated the finding of the activity report and did not list it as one of the items found during the house search. Furthermore, the applicant also contested the veracity of the findings of the report questioning the methods employed by the police officers and asked the national courts to indicate on the basis of which writing samples it had been drawn up. In that connection, the applicant argued that he had either not given any samples or that the case file had contained no such samples at that time.
QUESTIONS tO THE PARTIES
1. Did the applicant have a fair hearing in the determination of the criminal charge against him, in accordance with 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 applicant’s 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 applicant 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. Was the applicant provided with a reasonable opportunity to present his case under conditions that do not place him at a substantial disadvantage vis-à-vis the prosecution? In particular, did the national courts’ refusal of the applicant’s repeated requests to order an alternative expert examination in respect of the expert report issued by the police officers on 16 September 1996 breach the principle of equality of arms (see Stoimenov v. the former Yugoslav Republic of Macedonia, no. 17995/02, 5 April 2007; and compare Emmanuello v. Italy, 35791/97, 31 August 1999)?
The Government are further requested to indicate whether the applicant gave handwriting samples to the police during his custody between 9 September 1996 and 16 September 1996, and if so, to indicate when and how those samples were taken. In the same vein, the Government are also requested to clarify on the basis of which handwriting samples of the applicant was the expert report dated 16 September 1996 prepared and to shed light upon the question where and how the activity report was found.
In that connection, the Government are invited to submit the copies of all the relevant documents concerning the applicant’s case, including but not limited to the search record of E.K.’s house, the handwriting samples given by the applicant during his police custody and the criminal proceedings, the document number five entitled “activity report” (5 ile işaretli faaliyet raporu), the expert report dated 16 September 1996 establishing that the activity report in question had been written by the applicant, the document number 40 (N.K.’nın eli ürünü olduğu anlaşılan 40 sayılı örgütsel belge), the minutes of all the hearings, the reasoned judgment of the trial court, the evidence listed therein, and the written submissions of the applicant and his lawyer throughout the proceedings.
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