Last Updated on May 26, 2019 by LawEuro
Communicated on 28 March 2019
SECOND SECTION
Application no. 73552/11
Bayram KAYA
against Turkey
lodged on 11 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 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 concerns the use of the statements obtained from the co‑defendants in the absence of a lawyer and under alleged duress during the preliminary investigation stage (see Erkapic v. Croatia, no. 51198/08, 25 April 2013; Ömer Güner v. Turkey, no. 28338/07, 4 September 2018; and compare Dominka v. Slovakia, (dec.) no. 14630/12, §§ 28-36, 3 April 2018).
The Court has already found both a substantive and a procedural violation of Article 3 of the Convention in respect of the co-defendant Metin Dikme in Dikme v. Turkey (no. 20869/92, ECHR 2000‑VIII).
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 cases 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 that 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. Have the requirements of a fair trial within the meaning of Article 6 § 1 of the Convention been satisfied as regards the admission into evidence of the co-defendants’ (M.D. and Y.O.) statements taken in the absence of a lawyer and allegedly under duress (see Huseyn and Others v. Azerbaijan, nos. 35485/05 and 3 others, § 202 in fine, 26 July 2011; Erkapic v. Croatia, no. 51198/08, 25 April 2013; Ömer Güner v. Turkey, no. 28338/07, 4 September 2018; and compare Dominka v. Slovakia, (dec.) no. 14630/12, §§ 28-36, 3 April 2018)?
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