GUNGU AND OTHERS v. TURKEY and 1 other application (European Court of Human Rights)

Communicated on 5 November 2018

SECOND SECTION

Applications nos.8019/12 and 10688/12
KemalGÜNGÜ and Others against Turkey
and Hasan SEVİM against Turkey
lodged on 16 December 2011 and 6 January 2012 respectively

SUBJECT MATTER OF the CASE

The applications 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 statements taken in the absence of a lawyer (see Salduz v. Turkey [GC], no. 36391/02, ECHR 2008; and Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3 others, 13 September 2016).

The applications also concern the use of the applicants’ police statements allegedly obtained under ill-treatment to convict them and the alleged absence of the applicants’ lawyer during the investigative measures taken in the course of the preliminary investigation stage (see Gäfgen v. Germany [GC], no. 22978/05, §§ 165-166, ECHR 2010, and Göçmen v. Turkey, no. 72000/01, §§ 73-74, 17 October 2006 and see, mutatis mutandis, HakanDuman v. Turkey, no. 28439/03, 23 March 2010).

Application no. 10688/12 also concerns the use by the trial court of the other co-defendants’ statements takenunder alleged duress and in the absence of a lawyer (see Erkapić v. Croatia, no. 51198/08, 25 April 2013; ÖmerGüner v. Turkey, no. 28338/07, 4 September 2018; and compare Dominka v. Slovakia, (dec.) no. 14630/12, §§ 28-36, 3 April 2018). It further pertains tothe alleged unfairness of the criminal proceedings against the applicant on account of the absence of a hearing before the Court of Cassation (see, for instance, Hermi v. Italy [GC], no. 18114/02, §§ 58-67, ECHR 2006‑XII, andTierce and Others v. San Marino, nos. 24954/94 and 2 others, §§ 92-102, ECHR 2000‑IX).

The Court has already found a violation of Article 3 of the Convention in respect of the applicant in application no.10688/12 in Yeşil and Sevim v. Turkey, (no. 34738/04, 5 June 2007). Furthermore, the applicants and the Government reached friendly settlements concerning the applicant’s complaints under Article 3 of the Convention inDoğan v. Turkey (no. 24939/94, 10 July 2001), Güngü v. Turkey (no. 24945/94, 18 December 2001), and Kalın and Others v. Turkey (no. 24849/94 and 2 others, 28 October 2003.

COMMON 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; and Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3 others, 13 September 2016)?

2.  Has there been a breach of Article 6 § 3 (c) of the Convention, as a result of the absence of the applicants’ lawyers during the investigative measures taken in the course of the preliminary investigation (see, mutatis mutandis, HakanDuman v. Turkey, no. 28439/03, 23 March 2010)?

ADDITIONAL CASE – SPECIFIC QUESTIONS

In respect of the applicants in application no. 8019/12

Having regard to the friendly settlements concerning the applicants’ complaints under Article 3 of the Convention in Doğan v. Turkey (no. 24939/94, 10 July 2001), Güngü v. Turkey (no. 24945/94, 18 December 2001), and Kalın and Others v. Turkey (no. 24849/94 and 2 others, 28 October 2003) judgments, did the applicants have a fair trial within the meaning of Article 6 § 1 of the Convention? In particular, did the Istanbul Assize Court use the police statements taken from the applicants under ill‑treatment? Has there been a violation of Article 6 § 1 of the Convention in this respect (see Gäfgen v. Germany [GC], no. 22978/05, §§ 165-166, ECHR 2010, and Göçmen v. Turkey, no. 72000/01, §§ 73-74, 17 October 2006)?

In respect of the applicant in application no. 10688/12

1.  Having regard to the Court’s conclusion under Article 3 of the Convention in respect of the same applicant in Yeşil and Sevim v. Turkey, (no. 34738/04, 5 June 2007) judgment, did the applicant have a fair trial within the meaning of Article 6 § 1 of the Convention? In particular, did the Istanbul Assize Court use the evidence obtained from the applicant under ill-treatment? Has there been a violation of Article 6 § 1 of the Convention in this respect (see Gäfgen v. Germany [GC], no. 22978/05, §§ 165-166, ECHR 2010, and Göçmen v. Turkey, no. 72000/01, §§ 73-74, 17 October 2006).

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 (seeErkapić v. Croatia, no. 51198/08, 25 April 2013; ÖmerGüner v. Turkey, no. 28338/07, 4 September 2018; and compare Dominka v. Slovakia, (dec.) no. 14630/12, §§ 28-36, 3 April 2018?

3.  Has there been a violation of Article 6 § 1 of the Convention on account of the absence of a hearing before the Court of Cassation (see, for instance, Hermi v. Italy [GC], no. 18114/02, §§ 58-67, ECHR 2006‑XII, andTierce and Others v. San Marino, nos. 24954/94 and 2 others, §§ 92-102, ECHR 2000‑IX)?

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 and of their co-defendants, minutes of all the hearings, documentary evidence against the applicants and the reasoned judgment(s) of the trial courts, the applicants’ and their lawyers’ written submissions both before the trial courts and before the Court of Cassation.

LIST OF APPLICATionS

 

No.

Application

no. and date of introduction

Applicant name

date of birth

place of residence

nationality

Represented by
1.  

8019/12

16/12/2011

 

 

Kemal GÜNGÜ

20/05/1973

Kığı

Turkish

 

Metin DOĞAN

01/01/1969

Çat

Turkish

 

Talip KALIN

02/01/1967

Tutak

Turkish

 

Hacer ÇEKİÇ GÜNDÜZ

2.  

10688/12

06/01/2012

 

Hasan SEVİM

05/09/1954

Tunceli

Turkish

Faruk Nafiz ERTEKİN

 

Keleş ÖZTÜRK

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