Last Updated on May 26, 2019 by LawEuro
Communicated on 5 November 2018
SECOND SECTION
Applications nos. 24369/11 and 19452/12
Rasim ÖZTAŞ against Turkey
and Ali Ekber AKKAYA against Turkey
lodged on 1 March 2011 and 22 March 2012 respectively
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 evidence, including statements from the applicants and their co-defendants, allegedly obtained under duress and in the absence of a lawyer to convict them (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; Özcan Çolak v. Turkey, no. 30235/03, § 47-50, 6 October 2009; Erkapić v. Croatia, no. 51198/08, 25 April 2013; Dominka v. Slovakia, (dec.) no. 14630/12, 3 April 2018; Ömer Güner v. Turkey, no. 28338/07, 4 September 2018).
Application no. 24369/11 also concerns the applicant’s right to notification of the right to a lawyer and the right to remain silent and privilege against self-incrimination before his “preliminary interview”, the “photo identification procedure” and the “house search” conducted by the police during the preliminary investigation stage (see, mutatis mutandis, Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3 others, §§ 295‑311, 13 September 2016; Titarenko v. Ukraine, no. 31720/02, §§ 87-88, 20 September 2012; Navone and Others v. Monaco, nos. 62880/11 and 2 others, 24 October 2013; and compare Schmid-Laffer v. Switzerland, no. 41269/08, § 39, 16 June 2015).
Application no. 19452/12 further involves the applicant’s complaint that he was not informed of the right to remain silent and the right to a lawyer before his statements were taken by the public prosecutor and the investigating judge (Navone and Others, cited above).
QUESTIONS tO THE PARTIES
COMMMON Questions
1. 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, Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3 others, 13 September 2016)?
2. Have the requirements of a fair trial within the meaning of Article 6 §§ 1 and 3 (d) of the Convention been satisfied as regards the admission into evidence of the incriminating statements which other co-defendants had given to the police under alleged duress and in the absence of their lawyers (see Ömer Güner v. Turkey, no. 28338/07, 4 September 2018, Erkapić v. Croatia, no. 51198/08 and compare Dominka v. Slovakia, (dec.) no. 14630/12, §§ 28-36, 3 April 2018?
3. Did the use of evidence obtained under alleged duress during the preliminary investigation stage violate the applicants’ right to a fair hearing (see Özcan Çolak v. Turkey, no. 30235/03, § 47-50, 6 October 2009)?
ADDITIONAL CASE-SPECIFIC QUESTIONS
A. In respect of the applicant in application no. 24369/11
1. When did the guarantees of Article 6 of the Convention start applying to the applicant in the instant case? Was the applicant informed of his basic rights such as the right to remain silent and the right to a lawyer before his “preliminary interview”, the “photo identification procedure”, the “house search” and before his statements were taken by the public prosecutor and the investigating judge during the preliminary investigation stage (see, mutatis mutandis, Titarenko v. Ukraine, no. 31720/02, §§ 87‑88, 20 September 2012)?
2. Were there any procedural safeguards in relation to the above mentioned alleged procedural shortcomings? Was the evidence obtained therefrom used by the trial court to convict the applicant to an extent that prejudiced the overall fairness of the proceedings (see Ibrahim and Others cited above, §§ 295‑311; and Navone and Others v. Monaco, nos. 62880/11 and 2 others, 24 October 2013; compare Schmid-Laffer v. Switzerland, no. 41269/08, § 39, 16 June 2015)?
B. In respect of the applicant in application no. 19452/12
When did the guarantees of Article 6 of the Convention start applying to the applicant in the instant case? Was the applicant informed of his basic rights such as the right to remain silent and the right to a lawyer before his statements were taken by the public prosecutor and the investigating judge (see, mutatis mutandis, Titarenko, cited above, §§ 87-88; Navone and Others, cited above)?
The Government are invited to submit copies of all the relevant documents concerning the applicants’ cases, including but not limited to the pre-trial statements of the applicants, medical reports on their heath conditions drawn up during preliminary investigation, 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.
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