Communicated on 5 November 2018<\/p>\n
SECOND SECTION<\/p>\n
Applications nos.8019\/12 and 10688\/12
\nKemalG\u00dcNG\u00dc and Others against Turkey
\nand Hasan SEV\u0130M against Turkey
\nlodged on 16 December 2011 and 6 January 2012 respectively<\/p>\n
SUBJECT MATTER OF the CASE<\/strong><\/p>\n The applications concern the alleged unfairness of the criminal proceedings due to the systemic restriction imposed on the applicants\u2019 right of access to a lawyer during the pre-trial stage pursuant to Law no.\u00a03842 and the subsequent use by the trial court of statements taken in the absence of a lawyer (see Salduz v. Turkey [GC], no.\u00a036391\/02, ECHR 2008; and Ibrahim and Others v. the United Kingdom [GC], nos.\u00a050541\/08 and 3\u00a0others, 13\u00a0September 2016).<\/p>\n The applications also concern the use of the applicants\u2019 police statements allegedly obtained under ill-treatment to convict them and the alleged absence of the applicants\u2019 lawyer during the investigative measures taken in the course of the preliminary investigation stage (see G\u00e4fgen v.\u00a0Germany [GC], no. 22978\/05, \u00a7\u00a7 165-166, ECHR 2010, and G\u00f6\u00e7men v.\u00a0Turkey, no.\u00a072000\/01, \u00a7\u00a7 73-74, 17 October 2006 and see, mutatis mutandis, HakanDuman v. Turkey, no. 28439\/03, 23 March 2010).<\/p>\n Application no. 10688\/12 also concerns the use by the trial court of the other co-defendants\u2019 statements takenunder alleged duress and in the absence of a lawyer (see Erkapi\u0107 v. Croatia, no. 51198\/08, 25 April 2013; \u00d6merG\u00fcner v. Turkey, no. 28338\/07<\/a>, 4 September 2018; and compare Dominka v. Slovakia, (dec.) no.\u00a014630\/12, \u00a7\u00a7 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, \u00a7\u00a7 58-67, ECHR 2006\u2011XII, andTierce and Others v. San Marino, nos. 24954\/94 and 2 others, \u00a7\u00a7 92-102, ECHR 2000\u2011IX).<\/p>\n The Court has already found a violation of Article 3 of the Convention in respect of the applicant in application no.10688\/12 in Ye\u015fil and Sevim v.\u00a0Turkey, (no. 34738\/04, 5 June 2007). Furthermore, the applicants and the Government reached friendly settlements concerning the applicant\u2019s complaints under Article 3 of the Convention inDo\u011fan v. Turkey (no.\u00a024939\/94, 10\u00a0July 2001), G\u00fcng\u00fc v. Turkey (no. 24945\/94, 18 December 2001), and Kal\u0131n and Others v. Turkey (no. 24849\/94 and 2 others, 28\u00a0October 2003.<\/p>\n COMMON QUESTIONS<\/strong><\/p>\n 1.\u00a0\u00a0Did the applicants have a fair hearing in the determination of the criminal charges against themselves, in accordance with Article 6 \u00a7 1 of the Convention? In particular, has there been a breach of Article 6 \u00a7 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.\u00a036391\/02, ECHR 2008; and Ibrahim and Others v. the United Kingdom [GC], nos.\u00a050541\/08 and 3\u00a0others, 13\u00a0September 2016)?<\/p>\n 2.\u00a0\u00a0Has there been a breach of Article 6 \u00a7 3 (c) of the Convention, as a result of the absence of the applicants\u2019 lawyers during the investigative measures taken in the course of the preliminary investigation (see, mutatis mutandis, HakanDuman v. Turkey, no.\u00a028439\/03, 23 March 2010)?<\/p>\n ADDITIONAL CASE – SPECIFIC QUESTIONS<\/strong><\/p>\n In respect of the applicants in application no. 8019\/12<\/p>\n Having regard to the friendly settlements concerning the applicants\u2019 complaints under Article 3 of the Convention in Do\u011fan v. Turkey (no.\u00a024939\/94, 10 July 2001), G\u00fcng\u00fc v. Turkey (no. 24945\/94, 18 December 2001), and Kal\u0131n and Others v. Turkey (no. 24849\/94 and 2 others, 28\u00a0October 2003) judgments, did the applicants have a fair trial within the meaning of Article 6 \u00a7 1 of the Convention? In particular, did the Istanbul Assize Court use the police statements taken from the applicants under ill\u2011treatment? Has there been a violation of Article 6 \u00a7 1 of the Convention in this respect (see G\u00e4fgen v. Germany [GC], no. 22978\/05, \u00a7\u00a7 165-166, ECHR 2010, and G\u00f6\u00e7men v. Turkey, no. 72000\/01, \u00a7\u00a7 73-74, 17 October 2006)?<\/p>\n In respect of the applicant in application no. 10688\/12<\/p>\n 1.\u00a0\u00a0Having regard to the Court\u2019s conclusion under Article 3 of the Convention in respect of the same applicant in Ye\u015fil and Sevim v. Turkey, (no. 34738\/04, 5 June 2007) judgment, did the applicant have a fair trial within the meaning of Article 6 \u00a7 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 \u00a7 1 of the Convention in this respect (see G\u00e4fgen v. Germany [GC], no. 22978\/05, \u00a7\u00a7 165-166, ECHR 2010, and G\u00f6\u00e7men v. Turkey, no. 72000\/01, \u00a7\u00a7 73-74, 17 October 2006).<\/p>\n 2.\u00a0\u00a0Have the requirements of a fair trial within the meaning of Article 6 \u00a7\u00a7 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 (seeErkapi\u0107 v. Croatia, no. 51198\/08, 25 April 2013; \u00d6merG\u00fcner v.\u00a0Turkey, no. 28338\/07<\/a>, 4 September 2018; and compare Dominka v.\u00a0Slovakia, (dec.) no.\u00a014630\/12, \u00a7\u00a7 28-36, 3 April 2018?<\/p>\n 3.\u00a0\u00a0Has there been a violation of Article 6 \u00a7 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, \u00a7\u00a7 58-67, ECHR 2006\u2011XII, andTierce and Others v. San Marino, nos. 24954\/94 and 2 others, \u00a7\u00a7 92-102, ECHR 2000\u2011IX)?<\/p>\n The Government are invited to submit copies of all the relevant documents concerning the applicants\u2019 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\u2019 and their lawyers\u2019 written submissions both before the trial courts and before the Court of Cassation.<\/p>\n LIST OF APPLICATionS<\/strong><\/p>\n No.<\/strong><\/td>\n no. and date of introduction<\/strong><\/td>\n date of birth<\/strong><\/p>\n place of residence<\/strong><\/p>\n nationality<\/strong><\/td>\n 8019\/12<\/p>\n 16\/12\/2011<\/p>\n <\/td>\n Kemal G\u00dcNG\u00dc<\/strong><\/p>\n 20\/05\/1973<\/p>\n K\u0131\u011f\u0131<\/p>\n Turkish<\/p>\n \u00a0<\/strong><\/p>\n Metin DO\u011eAN<\/strong><\/p>\n 01\/01\/1969<\/p>\n \u00c7at<\/p>\n Turkish<\/p>\n \u00a0<\/strong><\/p>\n Talip KALIN<\/strong><\/p>\n 02\/01\/1967<\/p>\n Tutak<\/p>\n Turkish<\/td>\n Hacer \u00c7EK\u0130\u00c7 G\u00dcND\u00dcZ<\/td>\n<\/tr>\n 10688\/12<\/p>\n 06\/01\/2012<\/p>\n <\/td>\n 05\/09\/1954<\/p>\n Tunceli<\/p>\n Turkish<\/td>\n <\/p>\n Kele\u015f \u00d6ZT\u00dcRK<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n\n\n
\n \u00a0<\/strong><\/p>\n Application<\/strong><\/p>\n Applicant name<\/strong><\/p>\n Represented by<\/strong><\/td>\n<\/tr>\n<\/thead>\n\n \n 1.<\/td>\n <\/p>\n \u00a0<\/strong><\/p>\n <\/p>\n \n 2.<\/td>\n <\/p>\n Hasan SEV\u0130M<\/strong><\/p>\n Faruk Nafiz ERTEK\u0130N<\/p>\n