Communicated on 5 May 2017

SECOND SECTION

Application no. 32841/09 Ä°skender TUTAR against Turkey and 13 other applications (see list appended)

SUBJECT MATTER OF THE CASE

The applications concern the alleged unfairness of the criminal proceedings due to the systemic restriction imposed on the applicants ’ right of access to a lawyer during the pre-trial stage pursuant to Law no. 3842 and the subsequent use by the trial court of those statements taken in the absence of a lawyer and allegedly under duress (see Salduz v. Turkey [GC], no. 36391/02, ECHR 2008; Özcan Çolak v. Turkey , no. 30235/03, §§ 47-50, 6 October 2009 ; and İbrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3 others , ECHR 2016 ).

It further concerns the alleged lack of independence and impartiality of the trial court due to the presence of a military judge in its composition for the first six years of the trial (see Incal v. Turkey , 9 June 1998, Reports of Judgments and Decisions 1998 ‑ IV; and compare Ceylan v. Turkey ( dec. ), no. 68953/01, 30 August 2005 ) .

The cases raise issues similar to those in the case of Abdulgafur Batmaz v. Turkey (no. 44023/09, 24 May 2016).

QUESTIONS tO THE PARTIES

1. Did the applicants have a fair hearing in the determination of the cri minal charges against them , in accordance with Article 6 § 1 of the Convention? In particular, has there been a breach of Article 6 § 3 (c) of the Convention, as a result of the lack of legal assistance available to the applicant during the preliminary investigation (see Salduz v. Turkey [GC], no. 36391/02, ECHR 2008, and İbrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3 others , ECHR 2016 ) ?

2. Did the use of statements taken under alleged duress and in the absence of a lawyer violate the applicants ’ right to a fair hearing (see Özcan Çolak v. Turkey , no. 30235/03, §§ 47-50, 6 October 2009)?

3. Did the applicants receive a fair trial by an independent and impartial tribunal as required by Article 6 § 1 of the Convention (see Ä°ncal v. Turkey , 9 June 1998, Reports of Judgments and Decisions 1998 ‑ IV; and compare Ceylan v. Turkey ( dec. ), no. 68953/01, 30 August 2005)?

In respect of the applicant in application no. 35814/09:

4. Has the applicant exhausted the domestic remedies in respect of his complaint under Article 3 of the Convention? In particular, has the applicant filed an objection against the Diyarbakır public prosecutor ’ s decision of non-prosecution dated 24 October 1995?

The Government are invited to submit copies of all the relevant documents concerning the applicants ’ case, including but not limited to the minutes of all the hearings, documentary evidence against the applicants and the reasoned judgment of the trial court, the applicants ’ and their lawyers ’ written submissions both before the trial court and before the Court of Cassation.

The Government are further requested to submit the pre-trial statements of the applicant in application no. 35831/09.

No.

Application

no. and date of introduction

Applicant name

date of birth

place of residence

nationality

Represented by

Date of arrest

32841/09

18/05/2009

Ä°skender TUTAR

22/12/1975

Diyarbakır

Turkish

On 10 September 1994 the applicant was taken into police custody on suspicion of being a member of Hizbullah , an illegal organisation . The applicant ’ s statements before the police, the public prosecutor and the judge were taken in the absence of a lawyer.

35788/09

04/06/2009

Mehmet Ali ENEZE

04/02/1974

Şanlıurfa

Turkish

On 12 September 1994 the applicant was taken into police custody on suspicion of being a member of Hizbullah , an illegal organisation . The applicant ’ s statements before the police, the public prosecutor and the judge were taken in the absence of a lawyer.

35796/09

22/05/2009

Åžahin YAPICI

16/08/1975

Diyarbakır

Turkish

On 10 September 1994 the applicant was taken into police custody on suspicion of being a member of Hizbullah , an illegal organisation . The applicant ’ s statements before the police, the public prosecutor and the judge were taken in the absence of a lawyer.

35801/09

22/05/2009

Mehmet Zeki Ä°NAL

01/01/1974

Diyabakır

Turkish

On 12 September 1994 the applicant was taken into police custody on suspicion of being a member of Hizbullah , an illegal organisation . The applicant ’ s statements before the police, the public prosecutor and the judge were taken in the absence of a lawyer.

35808/09

21/05/2009

Sıdık KURT

01/01/1976

Diyarbakır

Turkish

On 13 September 1999 the applicant was taken into police custody on suspicion of being a member of Hizbullah , an illegal organisation . The applicant ’ s statements before the police, the public prosecutor and the judge were taken in the absence of a lawyer.

35814/09

20/05/2009

Sedat ÅžERAN

27/01/1974

Diyarbakir

Turkish

On 8 September 1994 the applicant was taken into police custody on suspicion of being a member of Hizbullah , an illegal organisation . The applicant ’ s statements before the police, the public prosecutor and the judge were taken in the absence of a lawyer.

35824/09

15/06/2009

Mustafa SEVÄ°M

01/05/1972

Diyarbakır

Turkish

On 12 September 1994 the applicant was taken into police custody on suspicion of being a member of Hizbullah , an illegal organisation . The applicant ’ s statements before the police, the public prosecutor and the judge were taken in the absence of a lawyer.

35831/09

15/06/2009

Kasım ERKAN

01/01/1974

Sivas

Turkish

On 9 September 1994 the applicant was taken into police custody on suspicion of being a member of Hizbullah , an illegal organisation . The applicant ’ s statements before the police, the public prosecutor and the judge were taken in the absence of a lawyer.

35839/09

29/05/2009

Mecit DAMAR

06/08/1974

Ankara

Turkish

On 31 July 2000 the applicant was taken into police custody on suspicion of being a member of Hizbullah , an illegal organisation . The applicant ’ s statements before the police, the public prosecutor and the judge were taken in the absence of a lawyer.

38749/09

01/07/2009

Mahsum NAZLI

01/03/1974

Diyarbakır

Turkish

On 11 September 1994 the applicant was taken into police custody on suspicion of being a member of Hizbullah , an illegal organisation . The applicant ’ s statements before the police, the public prosecutor and the judge were taken in the absence of a lawyer.

38756/09

26/06/2009

Mustafa DEMÄ°R

11/04/1973

Diyabakır

Turkish

On 6 December 1999 the applicant was taken into police custody on suspicion of being a member of Hizbullah , an illegal organisation . The applicant ’ s statements before the police, the public prosecutor and the judge were taken in the absence of a lawyer.

47700/09

24/08/2009

Tamer GEZER

01/08/1972

Adiyaman

Turkish

On 6 December 1999 the applicant was taken into police custody on suspicion of being a member of Hizbullah , an illegal organisation . The applicant ’ s statements before the police, the public prosecutor and the judge were taken in the absence of a lawyer.

49015/09

18/08/2009

Veysi ÃœLSEN

10/02/1968

Adana

Turkish

On 10 September 1994 the applicant was taken into police custody on suspicion of being a member of Hizbullah , an illegal organisation . The applicant ’ s statements before the police, the public prosecutor and the judge were taken in the absence of a lawyer.

49026/09

20/08/2009

Güro ADEM

01/01/1972

Şanlıurfa

Turkish

On 9 September 1994 the applicant was taken into police custody on suspicion of being a member of Hizbullah , an illegal organisation . The applicant ’ s statements before the police, the public prosecutor and the judge were taken in the absence of a lawyer.