Communicated on 15 October 2020 Published on 2 November 2020

SECOND SECTION

Application no. 48309/17 Orhan ÅžAHÄ°N against Turkey lodged on 10 May 2017

SUBJECT MATTER OF THE CASE

The application concerns the alleged unfairness of the criminal proceedings against the applicant owing to his alleged inability to examine witnesses A.Y. in person before the court which ultimately convicted him.

The subject matter of the criminal proceedings against the applicant concerned the question as to whether he had incited or threatened A.Y. to throw a handmade bomb at the police officers on 17 December 2011. On that basis, the applicant was tried for having committed the following offences: undermining the unity of the State and the territorial integrity (Article 302 of the Criminal Code); attempted killing of a public official by bombing (Article 82 § 1 (c) and (g) of the Criminal Code); membership of a terrorist organisation (Article 314 § 2 of the Criminal Code) and unlawful possession of hazardous materials (Article 174 of the said Code).

The first leg of his criminal trial was conducted before the Second Division of the Erzurum Assize Court, which had special jurisdiction to try a number of aggravated crimes enumerated in Article 250 § 1 of the Code of Criminal Procedure in force at the material time. That court examined A.Y. in person as he was also tried in the same proceedings as a co-defendant. By two votes to one, the trial court found the applicant guilty of membership to a terrorist organisation, but unanimously acquitted him in respect of the remaining offences.

On 31 October 2013 the Principal Public Prosecutor at the Court of Cassation submitted a written opinion and requested, inter alia , that the applicant ’ s conviction for membership of a terrorist organisation be quashed for lack of evidence.

On 7 March 2014 the Court of Cassation quashed the trial court ’ s judgment in respect of the applicant, considering that the applicant should be convicted of all the offences of which he stood accused. The Court of Cassation upheld the convictions of the other co-defendants.

Following the closure of the specially authorised assize courts, the applicant ’ s case file was allocated to the Doğubayazıt Assize Court, which had dismissed the applicant ’ s requests that A.Y. be examined in person.

On 4 December 2014 the Doğubayazıt Assize Court found the applicant guilty in respect of all the offences and sentenced him to life imprisonment and a further imprisonment for twenty years and ten months and a judicial fine. In sentencing him, however, the trial court did not convict the applicant separately of membership of a terrorist organisation, considering that it had formed one of the constituent elements of the offence prescribed by Article 302 of the Criminal Code.

On 3 February 2016 the Court of Cassation upheld the trial court ’ s judgment.

On 9 January 2017 the Constitutional Court examined, inter alia, the applicant ’ s complaint regarding his inability to examine A.Y. before the Doğubayazıt Assize Court and declared it inadmissible, finding that the trial court had relied on evidence other than A.Y. ’ s statements, such as the police report drawn up after the attempted bombing and the reports regarding DVD recordings of the incident. In the Constitutional Court ’ s view, the impugned complaint had concerned the outcome of the criminal proceedings against the applicant and in the absence of any arbitrariness, had to be considered as manifestly ill-founded.

QUESTIONS TO THE PARTIES

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? In that connection, has the principle of immediacy been breached on account of the trial court ’ s ( DoÄŸubayazıt Ağır Ceza Mahkemesi ) failure to examine A.Y. in person after the closure of the first trial court ( Erzurum 2. Ağır Ceza Mahkemesi ), which examined him in person and acquitted the applicant in respect of certain offences (see Chernika v. Ukraine , no. 53791/11 , §§ 47 ‑ 78, 12 March 2020, Svanidze v. Georgia , no. 37809/08, §§ 32 ‑ 38, 25 July 2019; and Famulyak v. Ukraine ( dec. ), no. 30180/11, §§ 40 ‑ 47, 2 May 2019)?

The Government is 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 judgments of the trial court; evidence against the applicant; documentary evidence against the applicant, and the written submissions of the applicant and his lawyer throughout the proceedings.