CEDH · CASELAW;COMMUNICATEDCASES;ENG — 19 octobre 2018

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .sA36B60A1 { font-family:Arial; font-style:italic } .s9296A950 { margin-top:36pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s39A7D870 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s76CF415B { page-break-before:always; clear:both } .s75A32C27 { border-collapse:collapse } .sAC521AF { border:0.75pt solid #949494; padding:1.02pt 5.03pt; background-color:#dfdfdf } .s598389F8 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:11pt } .sEECE831 { font-family:Arial; font-weight:bold; color:#474747 } .sD8E76205 { border:0.75pt solid #949494; padding:1.02pt 5.03pt } .s6B505E72 { margin:0pt; padding-left:0pt } .sA7CAEB5D { text-align:center; font-family:Arial; font-size:11pt; list-style-position:inside } .s32563E28 { margin-top:0pt; margin-bottom:0pt }   Communicated on 19 October 2018   SECOND SECTION Application no. 53848/09 Veysel AKTAŞ and Murat TARI against Turkey and 7 other applications (see list appended) SUBJECT MATTER OF THE CASE The applications mainly 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 statements taken in the absence of a lawyer (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, 13   September 2016). Application no. 53848/09 also concerns the use of the evidence obtained under alleged duress during the preliminary investigation stage (see Özcan   Çolak v. Turke y, no. 30235/03, §§ 47-50, 6 October 2009). It further relates to the independence and impartiality of the trial court as required by Article   6 § 1 of the Convention (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). Application no. 36824/11 also concerns independence and impartiality of the trial court as required by Article 6 § 1 of the Convention (see Incal , cited above, and compare, Ceylan , cited above), and the applicant’s alleged inability to examine or have examined the complainant party, namely A.T., who took part in photo identification procedure during the preliminary investigation stage and identified the applicant (see Daştan v. Turkey , no.   37272/08, 10 October 2017). Application no. 60237/11 also concerns independence and impartiality of the trial court as required by Article 6 § 1 of the Convention, given the indictment filed by the Istanbul public prosecutor against the third applicant’s lawyer following the complaint lodged by the members of the trial court’s bench, and further pertains to the use of the evidence obtained under alleged duress during the preliminary investigation stage (see Özcan   Çolak , cited above, §§ 47-50). It also relates to the alleged absence of the applicants’ lawyer during the investigative measures, such as the reconstruction of the events ( yer gösterme ) and the identification procedure ( teşhis islemleri ) (see, mutatis mutandis , Hakan Duman v.   Turkey , no.   28439/03, 23 March 2010). Application no. 77243/11 also concerns the alleged absence of the applicant’s lawyer during the investigative measures taken in the course of the preliminary investigation stage (see, mutatis mutandis , Hakan Duman , cited above) and the use by the trial court of the other co ‑ defendants’ statements taken in the absence of a lawyer (see Ömer Güner v.   Turkey , no.   28338/07, §§ 37-41, 4 September 2018). It further concerns the applicant’s alleged inability to examine or have examined the complainant parties (see Daştan , cited above). Application no. 394/12 further pertains to the use of the applicant’s statements taken under alleged duress to convict him (see Özcan Çolak , cited above, §§ 47-50). Application no. 8407/12 also concerns the alleged absence of the applicants’ lawyer during the investigative measures taken in the course of the preliminary investigation stage (see Hakan Duman , cited above). QUESTIONS tO THE PARTIES COMMON QUESTION Did the applicants have a fair hearing in the determination of the criminal charges against themselves, 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 applicants 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)? ADDITIONAL CASE-SPECIFIC QUESTIONS A.     In respect of the applicants in application no. 53848/09 1.     Did the use of the evidence obtained under alleged duress during the preliminary investigation stage violate the applicants’ right to a fair hearing (see Özcan Çolak v. Turke y, no. 30235/03, §§ 47-50, 6 October 2009)?   2.     Did the applicant receive a fair trial by an independent and impartial tribunal as required by Article 6 § 1 of the Convention (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)? B.     In respect of the applicant in application no. 36824/11 1.     Did the applicant receive a fair trial by an independent and impartial tribunal as required by Article 6 § 1 of the Convention (see Incal , cited above, and compare, Ceylan , cited above)?   2.     Has there been a breach of the applicant’s right to a fair trial provided by Article 6 §§ 1 and 3 (d) of the Convention due to his inability to examine or have examined the complainant party, namely A.T., who took part in photo identification procedure during the preliminary investigation stage and identified the applicant (see Daştan v. Turkey , no. 37272/08, 10   October 2017)? C.     In respect of the applicant in application no. 60237/11 1.     Did the applicants receive a fair trial by an independent and impartial tribunal as required by Article 6 § 1 of the Convention, given the indictment filed by the Istanbul public prosecutor against the third applicant’s lawyer following the complaint lodged by the members of the trial court’s bench?   2.     Did the use of the evidence obtained under alleged duress during the preliminary investigation stage violate the applicants’ right to a fair hearing (see Özcan Çolak , cited above §§ 47-50)?   3.     Has there been a breach of Article 6 §§ 1 and 3 (c) of the Convention, as a result of the absence of the applicants’ lawyers during the investigative measures, such as the reconstruction of the events ( yer gösterme ) and the identification procedure ( teşhis islemleri ) (see, mutatis mutandis , Hakan   Duman v.   Turkey , no. 28439/03, 23 March 2010)? D.     In respect of the applicant in application no. 77243/11 1.     Has there been a breach of Article 6 §§ 1 and 3 (c) of the Convention, as a result of the applicant’s lawyer’s absence during the investigative measures taken in the course of the preliminary investigation stage (see mutatis mutandis , Hakan Duman , cited above)?   2.     Has there been a breach of Article 6 §§ 1 and 3 (c) of the Convention on account of the use by the trial court of the co-defendants’ statements taken in the absence of a lawyer (see Ömer Güner v. Turkey , no.   28338/07, §§   37-41, 4 September 2018)?   3.     Was the applicant able to examine the complainant parties, namely H.Ö., E.B., A.S., M. I., R.Y. in the proceedings brought against him, as required by Article 6 § 3 (d) of the Convention (see Daştan , cited above)? E.     In respect of the applicants in application no. and 394/12 Did the use of the applicant’s statements taken under alleged duress violate his right to a fair hearing (see Özcan Çolak , cited above, §§ 47 ‑ 50, 6   October 2009)? F.     In respect of the applicant in application no. 8407/12 Has there been a breach of Article 6 §§ 1 and 3 (c) of the Convention, as a result of the absence of the applicants’ lawyer during the investigative measures taken in the course of the preliminary investigation stage, in particular the reconstruction of the events ( yer gösterme ) (see, mutatis mutandis , Hakan Duman , cited above)?   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, 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 applicants in applications nos. 53848/09, 62977/11, 74553/11, and   77243/11.   APPENDIX   No. Application no. Lodged on Applicant Date of birth Place of residence Represented by   53848/09 18/09/2009 Veysel AKTAŞ 01/01/1973 İstanbul   Murat TARI 01/01/1973 Giresun   Gülizar TUNCER   36824/11 26/04/2011 Yüksel BEYSÜLEN 05/01/1978 İstanbul   Nuran KURTULUŞ ATAHAN   60237/11 21/07/2011 Tamer TUNCER 25/10/1971 Kocaeli   Mete TUNCER 17/06/1969 İstanbul   Nuri AKALIN 29/08/1977 Kandıra   Gülizar TUNCER   62977/11 26/07/2011 Mehmet Zeki DENİZ 01/01/1963 İstanbul   Abdulhamit ÇAKAN   74553/11 14/10/2011 Fırat PERVANE 10/07/1979 Diyarbakır   Mehmet ERBIL   77243/11 28/11/2011 Kadir AYDIN 26/07/1981 Tekirdağ Nuran KURTULUŞ ATAHAN   394/12 15/12/2011 Hasan SAYAN 01/01/1968 İstanbul   Cesim TUSUN   8407/12 30/12/2011 Efendi YALDIZ 01/01/1971 İstanbul   Erkan YALDIZ 01/04/1977 İstanbul   Kızıl ÖMÜR 28/08/1978 İstanbul   Several BALLIKAYA ÇELİK