Communicated on 11 May 2020 Published on 2 June 2020

SECOND SECTION

Application no. 19202/11 Mithat Y I LMAZ against Turkey lodged on 25 March 2011

SUBJECT MATTER OF THE CASE

The application concerns the alleged unfairness of the criminal proceedings against the applicant on account of the loss of the main folder and some other documents of the physical case-file at the appeals stage and the allegedly flawed appellate review carried out by the Court of Cassation in the absence of those documents, which contained, inter alia, the applicant ’ s defence submissions.

The applicant relies on Article 6 § 1, 6 § 2, Article 6 § 3 (a), (b), (c) of the Convention and Article 4 of Protocol No. 7 to the Convention.

The applicant complains of the unfairness of the criminal proceedings against him, particularly the appellate review, upon which he has been convicted for the charges of establishment and leadership of a criminal organization, threat, and unauthorized possession of fire arms.

The main grievance stemmed from the loss of the main folder and some other documents of the physical case-file. The applicant mainly complains that the Court of Cassation had ruled on his case, in the absence of the main case folder which included his defence statements.

In its final judgment, the Court of Cassation had made no mention of the loss of the case folder, thus had not shed light on how it had remedied the situation.

Subsequently, the applicant lodged an objection with the trial court, and challenged the manner with which the appellate review had been conducted. The trial court dismissed the applicant ’ s request on the grounds that the Court of Cassation had had the relevant documents at its disposal.

QUESTIONS TO THE PARTIES

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

In particular; did the appeals examination and the upholding of the applicant ’ s conviction allegedly in the absence of the main case folder and the original documents therein violated the applicant ’ s right to a fair trial within the meaning of Article 6 § 1 of the Convention ?

In that connection, the Government are asked to provide a list of documents which the Court of Cassation had at their disposal following the reconstruction of the lost case-file.

2. Have the Government taken all the measures to organise its judicial system in a way that would render the rights guaranteed by Article 6 § 1 of the Convention effective (see mutatis mutandis Khlebik v. Ukraine , no. 2945/16, §§ 70 – 71, 25 July 2017 , and Veeber v. Estonia ( dec. ), no. 45771/99, 03 May 2001)?

The Government are further asked to submit the relevant legislation or the applicable rules in cases of loss of case-files and the relevant domestic case-law on this subject.