CEDH · CASELAW;COMMUNICATEDCASES;ENG — 23 mai 2019

.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 } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s76CF415B { page-break-before:always; clear:both }   Communicated on 23 May 2019   SECOND SECTION Application no. 59242/08 Recep YILMAZ against Turkey lodged on 27 November 2008 SUBJECT MATTER OF THE CASE The application concerns the independence and impartiality of the General Staff Court on account of the presence of the military officer on its bench (see Gürkan v. Turkey , no.   10987/10, 3 July 2012). In the same vein, it also concerns the question whether the applicant was a civilian tried by a court composed exclusively of military personnel (see Ergin v.   Turkey (no.   6) , no. 47533/99, ECHR 2006 ‑ VI (extracts), and Ahmet Doğan v.   Turkey , no. 37033/03, 10 March 2009). The application further pertains to the alleged unfairness of the criminal proceedings due to the disciplinary segregation (ihtilattan men) and the resulting denial of legal assistance flowing from Law no.353 while the applicant was in custody between 28 March 2003 and 27 June 2003 and the subsequent admission by the trial court into evidence of the statements he had made during that period (see Salduz v. Turkey [GC], no.   36391/02, ECHR 2008; Ibrahim and Others v. the United Kingdom [GC], nos.   50541/08 and 3 others, ECHR 2016; and Beuze v. Belgium [GC], no.   71409/10, 9 November 2018). In the same vein, it also concerns the alleged failure to inform the applicant of his basic rights and the nature of the accusations against him before giving statements to the public prosecutor. The applicant was tried and convicted in the same set of criminal proceedings as the applicant in the judgment in Ali Osman Özmen v.   Turkey (no. 42969/04, 5   July 2016). QUESTIONS tO THE PARTIES 1.     Did the applicant have a fair trial in the determination of the criminal charges against him within the meaning of Article 6 of the Convention? In particular,   (a)     Could the General Staff Court, which tried and convicted the applicant be considered as independent and impartial within the meaning of Article   6 § 1 of the Convention on account of the presence of the military officer in its bench (see Ibrahim Gürkan v. Turkey , no. 10987/10, 3   July 2012)?   (b)     Regard being had to the nature of the offences for which the applicant was tried and to his submissions that he retired from the military before his detention, could he be considered as a civilian tried by a court composed exclusively of military personnel (see Ahmet Doğan v.   Turkey , no.   37033/03, 10 March 2009)? In the affirmative, were there any compelling reasons on a clear and foreseeable legal basis, justifying such a situation (see Ergin v. Turkey (no. 6) , no. 47533/99, ECHR 2006 ‑ VI (extracts))? In any event, could the applicant’s fears as to the military courts lack of independence and impartiality be regarded as objectively justified?   (c)     Was the applicant informed of his basic rights such as the right to remain silent and the right to a lawyer when giving statements to the military public prosecutor during his custody ( Ibrahim and Others v.   the United Kingdom [GC], nos. 50541/08 and 3 others, 13 September 2016?   (d)     Has there been a breach of Article 6 § 3 (c) of the Convention, as a result of the disciplinary segregation ( ihtilattan men ) and the resulting denial of legal assistance flowing from Law no. 353 while the applicant was in custody between 28 March 2003 and 27 June 2003 and the subsequent admission by the trial court into evidence of the statements he had made during that period (see Salduz v. Turkey [GC], no. 36391/02, ECHR 2008; Ibrahim and Others , cited above; and Beuze v. Belgium [GC], no.   71409/10, 9   November 2018)?   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), 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?