Communicated on 26 November 2020 Published on 14 January 2021

SECOND SECTION

Application no. 84212/17 Osman Nuri OCAKLI against Turkey lodged on 27 November 2017

SUBJECT MATTER OF THE CASE

The application concerns the alleged unfairness of the proceedings on account of the restriction placed on the applicant ’ s right to a lawyer pursuant to Law no. 3842 (see Beuze v. Belgium [GC], no. 71409/10, § § 119-195, 9 November 2018, and Mehmet Zeki Çelebi v. Turkey , no. 27582/07, § § 52-73, 28 January 2020) and the subsequent use of his statements taken without a lawyer to secure his conviction.

It further concerns the use by the trial court of the evidence given by his co-defendants under alleged duress and in the absence of a lawyer to convict the applicant (see, among many others, Gäfgen v. Germany [GC], no. 22978/05, § 165-6, ECHR 2010, Ömer Güner v. Turkey , no. 28338/07 , § § 37-41, 4 September 2018; Kaçiu and Kotorri v. Albania , nos. 33192/07 and 33194/07, §§ 122-130, 25 June 2013; and Huseyn and Others v. Azerbaijan , nos. 35485/05 and 3 others, § 202, 26 July 2011).

It further pertains to the applicant ’ s allegation that the Constitutional Court failed to examine his complaint regarding his inability to benefit from a lawyer when making statements to the police and the subsequent of those statements by the trial court to convict him (see, mutatis mutandis , Dulaurans v. France , no. 34553/97, 21 March 2000, and Carmel Saliba v. Malta , no. 24221/13, § 65, 29 November 2016).

The Court has also found both a substantive and a procedural violation of Article 3 of the Convention in respect of one of the co-accused, namely S.G. whose evidence was allegedly used by the trial court to convict the applicant (see Serdar Güzel v. Turkey , no. 39414/06, §§ 31-46, 15 March 2011).

QUESTION TO THE PARTIES

1. Did the applicant exhaust all domestic remedies in respect of his complaint regarding the denial of legal assistance and the use of his statements allegedly obtained in the absence of a lawyer to convict him, as required by Article 35 § 1 of the Convention?

In particular, could he be considered to have raised the substance of that complaint before the Constitutional Court?

2. Did the applicant have a fair trial within the meaning of Article 6 § 1 of the Convention?

(a) Having regard to the principles adopted by the Grand Chamber in the case of Ibrahim and Others v. the United Kingdom ([GC], nos. 50541/08 and 3 others, 13 September 2016) and Beuze v. Belgium ([GC], no. 71409/10, 9 November 2018 ), has there been a breach of Article 6 §§ 1 and 3 (c) of the Convention?

In that connection, were there any compelling reasons to restrict the applicant ’ s 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?

– If answered in the affirmative, could the criminal proceedings as a whole against the applicant be considered as fair within the meaning of Article 6 § 1 of the Convention? In particular, which of the relevant procedural safeguards (some of which listed non-exhaustively in § 274 of Ibrahim and Others ) were taken into account by the domestic courts in order to assess the impact of the alleged procedural shortcomings at the pre-trial stage on the overall fairness of the criminal proceedings?

– If answered in the negative, were there any exceptional circumstances in the present case, to demonstrate whether the absence of access to legal advice during the applicant ’ s police custody had not caused irretrievable prejudice to the overall fairness of the trial?

(b) D id the Constitutional Court duly examine the complaint regarding the denial of legal assistance and the use of the applicant ’ s statements allegedly obtained in the absence of a lawyer to convict him (see, mutatis mutandis, Dulaurans v. France , no. 34553/97, 21 March 2000, and Carmel Saliba v. Malta , no. 24221/13, § 65, 29 November 2016) ?

3. Has there been a violation of the applicant ’ s right to a fair trial on account of the alleged use by the trial court of the evidence obtained from the co-defendants under alleged duress and in the absence of a lawyer to convict him (see, among many others, Gäfgen v. Germany [GC], no. 22978/05, § 165-6, ECHR 2010, Ömer Güner v. Turkey , no. 28338/07 , § § 37-41, 4 September 2018; Kaçiu and Kotorri v. Albania , nos. 33192/07 and 33194/07, §§ 122-130, 25 June 2013; and Huseyn and Others v. Azerbaijan , nos. 35485/05 and 3 others, § 202, 26 July 2011)?

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, the reasoned judgment of the trial court, the judgment of the Court Cassation, documentary evidence against the applicant, and the written submissions of the applicant and his lawyer throughout the proceedings.

Moreover, the applicant is invited to submit a duly signed authority form capable of showing clearly that the applicant ’ s lawyer had been authorised to lodge the present application at the time of its lodging with the Court .