Communicated on 30 October 2017

SECOND SECTION

Application no. 30836/07 Bahaettin UZAN against Turkey lodged on 17 July 2007

SUBJECT MATTER OF THE CASE

The applicant was the vice-president of an IT company which provided services to a bank ( Imarbank ) owned by his brother. Following the State ’ s takeover of Imarbank , criminal proceedings were brought against a number of people, including the applicant, for forming a criminal organisation and embezzlement, pursuant to the former Banking Activities Act (Law no. 4389) and the Penal Code in force at the time (Law no. 765). The case, which received high media attention, was initially assigned to the 5 th Chamber of the Istanbul Assize Court. However, before that Chamber held a hearing, it was reassigned to the 8 th Chamber of the same court, established in line with certain amendments made to the Banking Activities Act which set forth that a new specialised chamber should deal with the matter. As a result of the proceedings, the applicant was found guilty as charged and sentenced to seventeen years ’ imprisonment.

The application concerns the objective independence and impartiality of the domestic court in view of the reassignment of the case to a new chamber of the Istanbul Assize Court which was established by a decision of the High Council of Judges and Prosecutors, an institution presided over by the Ministry of Justice. It also raises an issue with regard to both the subjective and objective impartiality of the court on account of the alleged personal bias on the part of its president, who had previously made remarks about the companies run by the applicant ’ s family in his book. The case finally pertains to the alleged failure of the domestic court to base its reasoning on objective arguments while preserving the rights of the defence.

The applicant complains of a violation of his rights under Articles 5, 6 and 7 of the Convention.

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?

( i ) Was the court, which dealt with the applicant ’ s case, independent and impartial, as required by Article 6 § 1 of the Convention? In particular, was the reassignment of the case to the 8 th Chamber of the Istanbul Assize Court, which was established by a decision of the High Council of Judges and Prosecutors, compatible with the requirement of objective independence and impartiality under Article 6 § 1 of the Convention? In that connection, taking account of the statements made by the Minister of Justice at the time, did Turkish criminal law provide the guarantees that would have been sufficient to exclude any objective doubt as to the absence of inappropriate pressure on judges in the performance of their duties (see Bochan v. Ukraine , no. 7577/02, 3 May 2007, and Moiseyev v. Russia , no. 62936/00, §§ 172-185, 9 October 2008)?

(ii) Taking account of both the objective and subjective tests in assessing the domestic court ’ s impartiality, could M.A., the president of the 8 th Chamber of the Istanbul Assize Court, be considered to have exercised maximum discretion with regard to the case with which he dealt in order to preserve his image as an impartial judge? In particular, did the expressions in his book on media, published before he presided over the court, imply that he had already formed an unfavourable view of the applicant ’ s case? In that connection, could the applicant ’ s doubts as to his impartiality be justified having regard to the Court of Cassation decision rendered in a separate set of proceedings brought against the managers of another bank, which noted that the defendants ’ request to have him removed from the bench must have been accepted (see Buscemi v. Italy , no. 29569/95, ECHR 1999 ‑ VI, and Kyprianou v. Cyprus [GC], no. 73797/01, ECHR 2005 ‑ XIII) ? Did the applicant bring this issue to the attention of the domestic authorities during the course of the proceedings?

(iii) Did the judgment of the Istanbul Assize Court adequately state the reasons on which it was based and address the arguments raised by the applicant (see Boldea v. Romania , no. 19997/02, 15 February 2007) ?

2. The Government are further invited to submit copies of all the relevant documents concerning the criminal proceedings against the applicant, including but not limited to the documents concerning the reassignment of the applicant ’ s case to another chamber of the Istanbul Assize Court, the indictment against the applicant, the minutes of all the hearings in so far as they concern the applicant, the reasoned judgment of the trial court, all the evidence against the applicant and the written submissions of the applicant and his lawyers throughout the proceedings.