Last Updated on May 13, 2019 by LawEuro
Communicated on 11 March 2019
SECOND SECTION
Application no. 74345/11
Mehmet SARAR
against Turkey
lodged on 18 November 2011
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, the subsequent use by the trial court of evidence obtained in the absence of a lawyer and allegedly under duress to convict him (see Salduz v. Turkey [GC], no. 36391/02, ECHR 2008; Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3 others, 13 September 2016; Beuze v. Belgium [GC], no. 71409/10, 9 November 2018; and Özcan Çolak v. Turkey, no. 30235/03, 6 October 2009).
It further pertains to the principle of equality of arms in so far as it concerns the collection and examination of evidence during the trial (see, mutatis mutandis, Murtazaliyeva v. Russia [GC], no. 36658/05, §§ 139‑168, 18 December 2018, and Mirilashvili v Russia, no. 6293/04, 11 December 2008).
QUESTIONS tO THE PARTIES
1. Did the applicant have a fair trial within the meaning of 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], nos. 50541/08, 50571/08, 50573/08 and 40351/09, 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 case?
– 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 whether the absence of access to legal advice during the applicant’s police custody had not caused irretrievable prejudice to the overall fairness of the trial?
2. Did the use of evidence taken under alleged duress and in the absence of a lawyer violate the applicant’s right to a fair hearing guaranteed by Article 6 § 1 of the Convention (see Özcan Çolak v. Turkey, no. 30235/03, §§ 47‑50, 6 October 2009)?
3. Was the principle of equality of arms respected in relation to the collection and examination of evidence that was allegedly capable of influencing the outcome of the proceedings in favour of the applicant? In that connection, did the trial court examine and provide reasons in respect of the applicant’s petition dated 4 February 2008 by which he asked the trial court to conduct an additional investigation (soruşturmanın genişletilmesi) in the case by collecting evidence, summoning witnesses in his favour and carrying out certain investigative steps (see, mutatis mutandis, Murtazaliyeva v. Russia [GC], no. 36658/05, §§ 139-168, 18 December 2018, and Mirilashvili v. Russia, no. 6293/04, 11 December 2008)?
The Government are further requested to submit a full copy of the investigation file regarding the applicant’s ill-treatment complaints, in particular the medical reports prepared during his police custody.
The Government are further invited to submit copies of all the relevant documents concerning the criminal proceedings against the applicant, including but not limited to the minutes of all the hearings, the reasoned judgments of the trial court, evidence against the applicant and the written submissions of the applicant and his lawyer throughout the proceedings.
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