Published on 19 September 2022

SECOND SECTION

Application no. 16373/18 Şahin TİRYAKİ against Türkiye and 2 others – see appended list communicated on 29 August 2022

SUBJECT MATTER OF THE CASE

The applications mainly concern the alleged unfairness of criminal proceedings against the applicants on account of the domestic courts’ failure to give sufficient reasons for their convictions. In the same vein, the applications also concern the domestic courts’ alleged failure to substantiate their preference to attach more weight to witness statements which were later repudiated (see, mutatis mutandis, Huseyn and Others v. Azerbaijan , nos. 35485/05 and 3 others, § 211, 26 July 2011, and Makeyan and Others v. Armenia, no. 46435/09, § 40, 5 December 2019).

The application no. 16373/18 further pertains to the domestic courts’ failure to examine two witnesses (A.İ.Ö. and H.A.) in the presence of the applicant or his lawyer (see Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06 , §§ 118-147, ECHR 2011; Schatschaschwili v. Germany [GC], no. 9154/10 , §§ 100-131, ECHR 2015; and Ürek and Ürek v. Turkey , no. 74845/12, §§ 49-72, 30 July 2019).

On different dates the Constitutional Court declared the applicants’ applications inadmissible as being manifestly ill-founded.

In application no. 16373/18, the applicant complains of the domestic courts’ failure to examine the two witnesses (A.İ.Ö. and H.A.) in his presence or that of his lawyer’s and to indicate the grounds on which they had found him guilty and to explain why they attached more weight to the incriminatory statements that the witnesses had made during the pre-trial stage, despite the fact that these witnesses retracted their statements at a later stage of the proceedings.

In application no. 16537/18, the applicant complains that his right to a reasoned judgment was breached because the domestic courts found him guilty on the basis of evidence given by E.K. and Y.E. to the police, despite the fact that they had made incriminatory statements in respect of approximately 300 people and they had later retracted their statements in respect of the applicant. In that connection, the applicant submits that even though the trial court first acquitted him, that judgment was quashed by the Court of Cassation which considered that the impugned evidence had been sufficient for his conviction, resulting in the trial court’s decision to convict him on the basis of the same evidence without resolving the discrepancy contained therein.

In application no. 19664/18, the applicant complains under Article 6 of the Convention of the domestic courts’ alleged failure to give sufficient reasons in their judgments.

QUESTIONS TO THE PARTIES

COMMMON QUESTIONS

1. 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 that connection, did the domestic courts comply with their duty to provide sufficient reasoning for their decisions to convict the applicants (aiding and abetting an armed terrorist organisation under Article 314 § 2 of the Criminal Code on the basis of Article 220 § 7 of the same Code in applications nos. 16373/18 and 19664/18 and membership of an armed terrorist organisation in application no. 16537/18) and respond to the main arguments raised by the applicants?

In particular, did the trial courts indicate the reasons why they attached more weight to the pre-trial statements (made by A.İ.Ö. and H.A. in application no. 16373/18; E.K. and Y.E. in application no. 16537/18; and M.G. in application no. 16537/18) instead of the evidence given during their trial when they retracted their previous statements (see, mutatis mutandis , Huseyn and Others v. Azerbaijan , nos. 35485/05 and 3 others, § 211, 26 July 2011, and Makeyan and Others v. Armenia , no. 46435/09, § 40, 5 December 2019)?

ADDITIONAL CASE-SPECIFIC QUESTION IN RESPECT OF APPLICATION NO. 16373/18

1. Was the applicant able to question witnesses that had made statements incriminating him, namely A.İ.Ö. and H.A., as required by Article 6 §§ 1 and 3 (d) of the Convention (see Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06 , §§ 118-147, ECHR 2011, Schatschaschwili v. Germany [GC], no. 9154/10 , §§ 100-131, ECHR 2015, and Ürek and Ürek v. Turkey , no. 74845/12, §§ 49-72, 30 July 2019)?

The Government are invited to submit copies of all relevant documents concerning the applicants’ cases, including, but not limited to, the minutes of all the hearings, statements of the applicants, the evidence against them, and the written submissions submitted in respect of them throughout the proceedings. The Government are further invited to submit the translation of the relevant pages of the domestic courts’ reasoned judgments in each case.

APPENDIX

List of cases:

No.

Application no.

Case name

Lodged on

Applicant

Represented by

1.

16373/18

Tiryaki v. Turkey

20/03/2018

Åžahin TÄ°RYAKÄ°

Mahsuni KARAMAN

2.

16537/18

Cömert v. Turkey

02/04/2018

Hakan CÖMERT

Avni Güçlü SEVİMLİ

3.

19664/18

Saka v. Turkey

09/04/2018

Rifat SAKA

Mazlum DOÄžAN