Last Updated on May 13, 2019 by LawEuro
Communicated on 25 March 2019
SECOND SECTION
Application no. 58089/11
Turgay ULU
against Turkey
lodged on 9 September 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 and the subsequent use by the trial court of the statements taken in the absence of a lawyer (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; and Beuze v. Belgium [GC], no. 71409/10, 9 November 2018)
It further pertains to the alleged unfairness of the criminal proceedings against the applicant on account of his alleged inability to examine certain witnesses, who had identified him from his photographs during the preliminary criminal proceedings, in person before the trial court (see, for general principles, Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, ECHR 2011 as refined in Schatschaschwili v. Germany [GC], no. 9154/10, §§ 107 and 118, ECHR 2015).
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 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 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. Was the applicant able to examine the witnesses that had identified him from his photographs during the preliminary criminal proceedings against him as required by Article 6 §3 (d) of the Convention? If not,
(a) What steps did the domestic courts take to secure the attendance of the witnesses against him?
(b) Was there a good reason for the non-attendance of the witnesses at the trial? Were the factual or legal grounds of such a reason reflected in the domestic courts’ judgments?
(c) Did the statements of the witnesses serve as the sole or decisive evidence for the applicant’s conviction?
d) Did the domestic courts’ judgments indicate that they had approached the statements given by the witnesses with any specific caution?
(e) Did the domestic courts provide the applicant with procedural safeguards aimed at compensating for the alleged lack of opportunity to directly examine the witnesses at the trial?
The Government are invited to submit copies of all the relevant documents concerning the applicant’s case, including but not limited to the minutes of all the hearings, the reasoned judgment of the trial court, documentary evidence against the applicant, and the written submissions of the applicant and his lawyer throughout the proceedings.
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