Communicated on 28 March 2019<\/p>\n
SECOND SECTION<\/p>\n
Application no. 73552\/11
\nBayram KAYA
\nagainst Turkey
\nlodged on 11 November 2011<\/p>\n
SUBJECT MATTER OF THE CASE<\/strong><\/p>\n The application concerns the alleged unfairness of the criminal proceedings due to the systemic restriction imposed on the applicant\u2019s 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\u00a0others, 13\u00a0September 2016; and Beuze v. Belgium [GC], no. 71409\/10<\/a>, 9\u00a0November 2018).<\/p>\n It further concerns the use of the statements obtained from the co\u2011defendants in the absence of a lawyer and under alleged duress during the preliminary investigation stage (see Erkapic v. Croatia, no.\u00a051198\/08, 25\u00a0April 2013; \u00d6mer G\u00fcner v. Turkey, no. 28338\/07<\/a>, 4 September 2018; and compare Dominka v. Slovakia, (dec.) no. 14630\/12, \u00a7\u00a7 28-36, 3\u00a0April 2018).<\/p>\n 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\u00a02000\u2011VIII).<\/p>\n QUESTIONS tO THE PARTIES<\/strong><\/p>\n 1.\u00a0\u00a0Did the applicant have a fair trial within the meaning of Article 6 \u00a7\u00a01 of the Convention? In particular, having regard to the principles adopted by the Grand Chamber in the cases of Ibrahim and Others v.\u00a0the\u00a0United Kingdom ([GC], nos. 50541\/08 and 3 others, 13\u00a0September 2016) and Beuze v. Belgium ([GC], no. 71409\/10<\/a>, 9 November 2018), has there been a breach of Article 6 \u00a7\u00a7 1 and 3 (c) of the Convention?<\/p>\n In that connection, were there any compelling reasons to restrict the applicant\u2019s 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?<\/p>\n \u2013\u00a0\u00a0If answered in the affirmative, could the criminal proceedings as a whole against the applicant be considered as fair within the meaning of Article\u00a06 \u00a7 1 of the Convention? In particular, which of the relevant procedural safeguards (some of which listed non-exhaustively in \u00a7 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?<\/p>\n \u2013\u00a0\u00a0If 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\u2019s police custody had not caused irretrievable prejudice to the overall fairness of the trial?<\/p>\n 2.\u00a0\u00a0Have the requirements of a fair trial within the meaning of Article\u00a06 \u00a7\u00a01 of the Convention been satisfied as regards the admission into evidence of the co-defendants\u2019 (M.D. and Y.O.) statements taken in the absence of a lawyer and allegedly under duress (see Huseyn and Others v.\u00a0Azerbaijan, nos. 35485\/05 and 3 others, \u00a7 202 in fine, 26 July 2011; Erkapic v. Croatia, no.\u00a051198\/08, 25\u00a0April 2013; \u00d6mer G\u00fcner v. Turkey, no.\u00a028338\/07<\/a>, 4\u00a0September 2018; and compare Dominka v. Slovakia, (dec.) no.\u00a014630\/12, \u00a7\u00a7\u00a028-36, 3 April 2018)?<\/p>\n