Communicated on 15 October 2020 Published on 2 November 2020

SECOND SECTION

Application no. 11669/20 Özgür ARIKAN against Turkey lodged on 17 February 2020

SUBJECT MATTER OF THE CASE

The application concerns the alleged unfairness of the criminal proceedings under which the applicant, who was a lawyer at the material time, was convicted of the offence of insult in the absence of the victim ( gıyapta hakaret ) for making the following statement during a hearing in a separate set of proceedings: “ The Court of Cassation ’ s situation is evident. Everyday there are news reports in the press regarding the corruption [allegations] about the Court of Cassation, its president is being tried for corruption too ”. As a consequence of his conviction, the applicant was disbarred.

Article 125 § 1 in fine of the Criminal Code prescribes that insult in the absence of the victim is punishable only where the uttering of the words alleged to have constituted the “insult” is witnessed ( ihtilat ) by three persons. In the applicant ’ s case, the following individuals were present in the hearing room: the presiding judge, the applicant, the clerk, the bailiff and the lawyer of the respondent (the complainant in the criminal case against the applicant). Whilst the judge and the lawyer of the respondent stated that they had heard the applicant utter the abovementioned phrases, the clerk and the bailiff submitted that they had not heard them. The trial court referred to two judgments of the 15 th Chamber of the Court of Cassation when convicting the applicant.

The applicant complains that the statutory requirement that an insult must be witnessed by at least three individuals has not been met in his case given that only two witnesses heard the impugned phrases. In that connection, the applicant complains of the trial court ’ s failure to give reasons to explain that point.

The applicant further complains of a violation of the principle of legal certainty owing to the allegedly divergent case-law among the different chambers of the Court of Cassation as to the requirement that the insult must be “witnessed ( ihtilat )” by three persons. He argues that according to the 4th and 18th Chambers of the Court of Cassation ’ s consistent case-law, that signifies the actual hearing of the words as opposed to the possibility that they may be heard, which he contends was the approach adopted by the 15th Chamber of the Court of Cassation in the two judgments relied on by the trial court to convict him.

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) In that connection, did the national courts give sufficient reasons for the applicant ’ s conviction under Article 125 of the Criminal Code for the offence of “insult in the absence of the victim ( gıyapta hakaret )”?

(b) In particular, did the national courts give reasons for the existence of the statutory requirement that the insult in the absence of the victim must be witnessed ( ihtilat ) by at least three persons?

2. What is the case-law of the Court of Cassation on the statutory requirement that the insult in the absence of the victim must be witnessed ( ihtilat ) by at least three persons? In particular, was the concept of “witnessing” interpreted as requiring that the relevant individuals hear and understand the insult? Was the actual hearing of the insult an important factor in deciding whether an individual witnessed an insult in the absence of the victim?

Has there been a divergence of case-law on this point between the 4 th and 18 th Chambers of the Court of Cassation on the one hand and its 15 th Chamber on the other hand? If so, did it give rise to a violation of the principle of legal certainty, guaranteed by Article 6 § 1 of the Convention in the present case? ( see , mutatis mutandis , Hayati Çelebi and Others v Turkey , no. 582/05, §§ 53-67, 9 February 2016, which concerned civil proceedings)?

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, documentary evidence against the applicant and the written submissions of the applicant and his lawyer throughout the proceedings. In particular, the Government is further invited to submit the translation of the fourth and the fifth pages of the trial court ’ s reasoned judgment dated 7 March 2014 and a summary translation of the two judgments relied on by the trial court to convict the applicant ( Yargıtay 15. Ceza Dairesi ’ nin 30 Eylül 2013 tarih , 2013/12076-14310 E-K sayılı kararı ve Yargıtay 15. Ceza Dairesi ’ nin 19 Eylül 2013 tarih , 2013/11485-13636 E-K sayılı kararı ).