Published on 9 May 2022

SECOND SECTION

Application no. 43637/18 Zelal ERDEM against Turkey lodged on 31 August 2018 communicated on 22 April 2022

SUBJECT MATTER OF THE CASE

The application concerns the alleged unfairness of criminal proceedings against the applicant under which she was convicted of committing an offence on behalf of an armed terrorist organisation without being a member (Article 220 § 6 and Article 314 § 2 of the Criminal Code), on the basis of witness statements of two police officers who arrested her, attesting that she had thrown stones at the police during a demonstration held on 30 October 2012.

The applicant complains under Article 6 of the Convention that in convicting her the domestic courts (i) adopted an overly broad interpretation of Article 220 § 6 and Article 314 § 2 of the Criminal Code, which has already been regarded as unforeseeable by the Court in its case-law; (ii) failed to question the two police officers who testified against her and to deliver a reasoned judgment, and (iii) did not provide her with the assistance of a lawyer.

QUESTIONS TO THE PARTIES

1. Did the applicant have a fair hearing in the determination of the criminal charges against her, in accordance with Article 6 of the Convention?

(a) Having regard to the Court’s finding that Article 220 § 6 of the Criminal Code was not foreseeable in its application (see, albeit in the context of Article 11 of the Convention, Işıkırık v. Turkey no. 41226/09, 14 November 2017), has there been a breach of the applicant’s right to a reasoned judgment owing to the domestic courts’ alleged failure to discharge their duty to state the grounds on which they convicted the applicant under that provision?

(b) Given that the only evidence against the applicant came from the police officers who had played an active role in her arrest, did the domestic courts exhaust every reasonable possibility of scrutinising their incriminating statements? In particular, did the domestic courts explain why the statements made by the two police officers carry more weight than the statements of the applicant?

(c) Did the applicant waive her right to legal assistance during the trial stage (see Simeonovi v. Bulgaria [GC], no. 21980/04, §§ 110-120, 12 May 2017)? If so, on what legal basis did the applicant waive that right? In particular, did the trial court remind her of her right to a lawyer? If so, what was the applicant’s reply? In any event, did the interests of justice require that the applicant be represented by a defence counsel, given that the sentence to which she was liable to carried a minimum term of imprisonment of more than five years owing to the public prosecutor’s request that Article 314 § 2 of the Criminal Code be applied in combination with section 5 § 1 of Prevention of Terrorism Act, which provided for a one half increase in the sentence (see Galstyan v. Armenia , no. 26986/03, § 91, 15 November 2007)?

(d) Was the applicant able to question witnesses against her, namely the police officers Me. Ak. and Mu. Ba., as required by Article 6 §§ 1 and 3 (d) of the Convention (see Schatschaschwili v. Germany [GC], no. 9154/10, §§ 100 ‑ 131, ECHR 2015)?

The Government are invited to submit copies of all the relevant documents concerning the applicant’s case, including but not limited to the minutes of all the hearings, documentary evidence against the applicant, and the written submissions of the applicant and his lawyer throughout the proceedings.