Last Updated on May 26, 2019 by LawEuro
Communicated on 8 January 2019
SECOND SECTION
Application no.58080/11
Barış İNAN
against Turkey
lodged on 12 August 2011
SUBJECT MATTER OF THE CASE
The application mainly 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 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 application also concerns the use of the evidence obtained from the applicant and the co-defendants under alleged duress during the preliminary investigation stage (see, HakanDuman v. Turkey, no. 28439/03, 23 March 2010 and in respect of the co-defendants Erkapic v. Croatia, no. 51198/08, 25 April 2013; ÖmerGüner v. Turkey, no. 28338/07, 4 September 2018; Mehmet Duman v. Turkey, no. 38740/09, 23 October 2018; and compare Dominka v. Slovakia, (dec.) no. 14630/12, §§ 28-36, 3 April 2018).
It further pertains to the applicant’s alleged inability to examine or have examined the witnesses against him (see,Schatschaschwili v. Germany [GC], no. 9154/10, §§ 100-131, ECHR 2015; Huseyn and Others v. Azerbaijan, nos. 35485/05 and 3 others, 26 July 2011, and compare Gökbulut v. Turkey, no. 7459/04, 29 March 2016).
Finally, it also concerns the alleged unfairness of the criminal proceedings against the applicant on account of the dismissal of the applicant’s lawyer’s request for adjournment of the hearing before the Court of Cassation on 16 February 2011 (see,Hanževački v. Croatia, no. 17182/07, §§18-29, 16 April 2009).
QUESTIONS tO THE PARTIES
1. Did the applicant have a fair hearing in the determination of the criminal charges against himself, 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 applicant 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; Beuze v. Belgium [GC], no. 71409/10, 9 November 2018)?
2. Did the use of evidence allegedly obtained from the applicant and the co-defendants under duress and in the absence of a lawyer violate the applicant’s right to a fair hearing (see, HakanDuman v. Turkey, no. 28439/03, 23 March 2010 and in respect of the co-defendants Erkapic v. Croatia, no. 51198/08, 25 April 2013; ÖmerGüner v. Turkey, no. 28338/07, 4 September 2018; Mehmet Duman v. Turkey, no. 38740/09, 23 October 2018; and compare Dominka v. Slovakia, (dec.) no. 14630/12, §§ 28-36, 3 April 2018)?
3. Was the applicant provided with an adequate opportunity to exercise his defence rights within the meaning of Article 6 § 3 (d) of the Convention, in particular in respect of the evidence given by Y.P., S.E., Y.D., S.K., M.D., E.T., D.I., K.B., H.M., Y.A., A.H.P., I.Ç., K.B., within the context of another set of proceedings? If not, has there been a breach of the applicant’s right to a fair trial provided for by Article 6 §§ 1 and 3 (d) of the Convention due to his inability to examine or have examined those witnesses (see, Schatschaschwili v. Germany [GC], no. 9154/10, §§ 100-131, ECHR 2015, and compare Gökbulut v. Turkey, no. 7459/04, 29 March 2016)?
4. Has there been a violation of Article 6 § 1 of the Convention on account of dismissal of the applicant’s lawyer’s request for adjournment of the hearing of 16 February 2011 (see Hanževački v. Croatia, no. 17182/07, §§18-29, 16 April 2009)?
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, documentary evidence against the applicant and the reasoned judgment of the trial court, the applicant’s and his lawyer’s written submissions both before the trial court and before the Court of Cassation.
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