Communicated on 11 July 2019

SECOND SECTION

Applications nos. 74536/10 and 75462/10 Sinan ÇETİ NKAYA against Turkey and Ağyar ÇETİ NKAYA against Turkey lodged on 7 December 2010 and 7 December 2010 respectively

SUBJECT MATTER OF THE CASE

The applications concern the criminal proceedings brought against the applicant brothers in connection with an allegedly unlawful procurement of a bank loan. The applicants, who are the debtors, were initially charged with aggravated fraud. During the course of the proceedings, the charges brought against them were reclassified by the domestic courts as aggravated embezzlement, and they were convicted on that charge.

The applicants complain under Article 6 of the unfairness of the criminal proceedings at issue, arguing in particular that they were not given sufficient opportunities to submit their defence arguments after the reclassification of the charge against them, that the domestic courts did not provide adequate reasoning to show on what legal and factual grounds their acts had been considered to amount to aggravated embezzlement, that their requests for the hearing of their witnesses were dismissed without providing any reason although the prosecution witnesses had been taken into consideration, and that no independent expert opinion was obtained despite the technical nature of the offence in question. They further argue that there was no legal basis for their conviction for embezzlement as principal offenders, in breach of the requirements of Article 7.

QUESTIONS TO THE PARTIES

1. Did the applicants exhaust all effective remedies in connection with their complaints under Articles 6 and 7 of the Convention, as required by Article 35 § 1 of the Convention ?

2. Did the applicants have a fair hearing in the determination of the criminal charges against them, in accordance with Article 6 § 1 of the Convention? In particular;

(a) Did the decisions of the domestic courts adequately state the reasons on which they were based (see, for instance, Moreira Ferreira v. Portugal (no. 2) [GC] , no. 19867/12, § 84, 11 July 2017 )?

(b) On what factual evidence did the domestic courts rely when reclassifying the charge against the applicants as one of aggravated embezzlement and establishing the objective and subjective elements of liability?

(c) Did the domestic courts rely on any expert reports in determining the charges against the applicants? If so;

( i ) Were the relevant reports prepared by individuals who were independent from the parties and who possessed relevant expertise on the subject matters at issue?

(ii) Were the applicants provided with a reasonable opportunity to challenge the findings of the experts and to introduce or obtain alternative reports, on the same terms as the prosecution (see, mutatis mutandis , Stoimenov v. the former Yugoslav Republic of Macedonia , no. 17995/02, § 38-43, 5 April 2007 )?

3. Were cases concerning embezzlement assigned to a particular division of the assize court under the relevant legal framework in force at the material time? If so, was the applicants ’ case decided by the designated division? If not, did the failure to refer the case to the designated division undermine the fair trial guarantees of Article 6 § 1 in any way?

4. Did the applicants have adequate time and facilities for the submission of their defence arguments, within the meaning of Article 6 § 3 (b) of the Convention and as required under Article 226 of the Code of Criminal Procedure (Law no. 5271), following the reclassification of the charge brought against them (see, for instance, Mattoccia v. Italy , no. 23969/94, § 61, ECHR 2000 ‑ IX; Penev v. Bulgaria , no. 20494/04, § 44, 7 January 2010; and Varela Geis v. Spain , no. 61005/09 , § 54, 5 March 2013 )?

5. ( a ) Were the applicants able to obtain the attendance of witnesses on their behalf under the same conditions as witnesses against them, as required by Article 6 § 3 (d) of the Convention (see, for instance, Murtazaliyeva v. Russia [GC], no. 36658/05, § 139-168, 18 December 2018 )? Did the domestic courts provide relevant reasons for dismissing their request to call witnesses (see, for instance, Topić v. Croatia , no. 51355/10, § 42, 10 October 2013 )?

(b) Were the applicants given an adequate and proper opportunity to challenge and question the witnesses against them, either when those witnesses made their statements or at a later stage of proceedings, as required under Article 6 § 3 (d) (see, for instance, Schatschaschwili v. Germany [GC], no. 9154/10, § 105, ECHR 2015 )?

6. (a) Was there a legal basis for the applicants ’ conviction of embezzlement, as required under Article 7 of the Convention (see, for instance, Rohlena v. the Czech Republic [GC], no. 59552/08, § 52, ECHR 2015 )? In particular, were the applicants convicted of embezzlement as the principal offenders under Article 247 of the Criminal Code (Law no. 5237), despite their lack of public official status?

(b) If the applicants were not convicted of embezzlement as the principal offenders, did the domestic courts set out clearly in what capacity the applicants had been involved in the commission of that offence (such as incitement or assistance, as indicated in Article 40 § 2 of the Criminal Code), as required under Articles 6 §§ 1 and 3 (a) of the Convention (see, mutatis mutandis, Penev , cited above, §§ 33 and 34)?

The Government are requested to provide a copy of the criminal case-file in question, including all appeal requests and petitions lodged with the domestic courts .