Published on 28 June 2021

SECOND SECTION

Application no. 60138/15 Kasım İL İM OĞLU against Turkey lodged on 20 November 2015 communicated on 10 June 2021

SUBJECT MATTER OF THE CASE

The application concerns the alleged unfairness of the criminal proceedings against the applicant, a public prosecutor, owing to the alleged breaches of the principles of legal certainty and equality of arms as well as the insufficiency of the reasons provided by the Court of Cassation for his conviction.

In particular, the applicant complains that the quashing of the final decision not to prosecute him by dint of an extraordinary remedy used by the Ministry of Justice and his resulting conviction gave rise to a breach of the principle of legal certainty under Article 6 § 1 of the Convention. In the same vein, the fact that the Ministry of Justice initiated the criminal proceedings against him and later used an extraordinary remedy to reverse the criminal courts ’ decision in his favour was problematic from the perspective of the principle of equality of arms, also protected under the same provision.

Furthermore, the applicant argues that in convicting him for neglect of duty on the basis of the number of cases he had processed and the judicial acts he had carried out during the period under examination, the Court of Cassation compared his performance with that of the other public prosecutors who had worked in the same court as him, without indicating the concrete figures of the performance of those prosecutors.

QUESTIONS TO THE PARTIES

1. Did the applicant have a fair hearing in the determination of the criminal charges against him, in accordance with Article 6 § 1 of the Convention?

a) Has there been a breach of the principle of legal certainty owing to the reversal of the decision not to prosecute the applicant, which had acquired the force of res judicata , by way of an extraordinary remedy, namely an “appeal in the interest of the law” laid down in Article 309 of the Code of Criminal Procedure (see Ryabykh v. Russia , no. 52854/99, §§ 51-59, ECHR 2003 ‑ IX)?

b) Was the use by the Ministry of Justice, which had set in motion the criminal proceedings against the applicant, of the extraordinary remedy under Article 309 of the Code of Criminal Procedure in compliance with the principle of equality of arms as protected under Article 6 § 1 of the Convention?

c) Did the domestic courts give sufficient reasons for the applicant ’ s conviction (see Vetrenko v. Moldova , no. 36552/02, § 55, 18 May 2010; Ajdarić v. Croatia , no. 20883/09, § 51, 13 December 2011; and Rostomashvili v. Georgia , no. 13185/07, § 59, 8 November 2018)?