Published on 20 June 2022

SECOND SECTION

Application no. 3772/17 Davut ABO against Turkey lodged on 5 December 2016 communicated on 30 May 2022

SUBJECT MATTER OF THE CASE

The application concerns the domestic courts’ refusal to reopen the criminal proceedings against the applicant, following the Court’s finding of a violation of Article 6 §§ 1 and 3 (c) of the Convention in relation to him in Davut Abo v. Turkey ([Committee], no. 22493/07, 26 November 2013) owing to the systemic restriction imposed on his right of having access to a lawyer. In refusing to grant the applicant’s request for reopening, the Diyarbakır 4th Assize Court held that issues giving rise to the Court’s finding of a violation could not be remedied through a new trial and that they had not affected the safety of his conviction, because the Court had declared inadmissible the complaints concerning the use of evidence obtained through ill-treatment. It further noted that the applicant had made his police statements voluntarily and had accepted them before the public prosecutor and the investigating judge, even though he had retracted them during the trial.

On 9 June 2016 the Constitutional Court declared the applicant’s application inadmissible as being of a fourth instance nature on the grounds that the domestic courts’ refusal to grant his application for reopening had not constituted “manifest arbitrariness”.

The applicant complains of a breach of his right to a fair trial, arguing that even though his application for reopening of the criminal proceedings against him was based on the Court’s finding of a violation of Article 6 of the Convention, the domestic courts rejected it without assessing his arguments.

Relying on Article 6 § 1 of the Convention, the applicant further complains that the proceedings relating to the determination of his application for a re ‑ trial had been excessive as they lasted for approximately two years.

QUESTIONS TO THE PARTIES

1. Does the Court have jurisdiction to consider the applicant’s complaint under Article 6 (see Moreira Ferreira v. Portugal (no. 2) [GC], no. 19867/12, 11 July 2017, §§ 46-75)? In particular, did the Diyarbakır 4th Assize Court’s judgment, dated 8 May 2015, rendered in the framework of the reopening proceedings raise a new issue within the jurisdiction of the Court (see Bochan v. Ukraine (no. 2) , no. 22251/08, ECHR 2015)?

2. If so, was the Diyarbakır 4th Assize Court’s judgment of 8 May 2015 in conformity with the requirements of the right to a fair trial as stipulated under Article 6 of the Convention?

3. Was the length of the proceedings concerning the reopening of the criminal proceedings against the applicant in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention?

The Government are invited to submit the Constitutional Court’s case-law concerning the compatibility with Article 6 of the Convention (right to a fair trial) of the domestic courts’ refusal of applications for the reopening of criminal proceedings based on the Court’s finding of a violation of that provision.