Published on 28 August 2023

SECOND SECTION

Application no. 2095/15 Fettah ALAY and Others against Türkiye lodged on 17 December 2014 communicated on 10 July 2023

SUBJECT MATTER OF THE CASE

The application concerns the alleged unfairness of criminal proceedings against the applicants in which they had been convicted of being a member of Hizbullah, owing to their alleged inability to effectively challenge the quality of the main, if not the only, piece of evidence, namely print-outs regarding “background information” on them derived from floppy disks found and seized in 2000 in the context of another set of criminal proceedings against Hizbullah.

The applicants submit that the floppy disks forming the basis of their conviction either did not exist or were lost; thus, they contested the authenticity of the print-outs of the information allegedly contained therein, which furthermore lacked any signature from any officials. The applicants further argue that they were denied a copy of the floppy disks, which deprived them of the possibility to have them examined by experts with a view to verifying whether the disks had been altered or otherwise manipulated.

QUESTIONS TO THE PARTIES

Did the applicants have a fair hearing in the determination of the criminal charge against them, in accordance with Article 6 § 1 of the Convention?

a. Did the domestic courts discharge their duty to exhaust every reasonable possibility to satisfy themselves of the admissibility, quality, authenticity, veracity, integrity and accuracy of the evidence, including, in particular, the floppy disks and the information derived therefrom, namely the documents containing the “background information” on the applicants (see, mutatis mutandis , Budak v. Turkey , no. 69762/12, § 83, 16 February 2021; Navalnyy and Yashin v. Russia , no. 76204/11, § 83, 4 December 2014, and Kasparov and Others v. Russia , no. 21613/07, § 64, 3 October 2013)? In that connection:

(i) What was the legal framework governing the collection and use of the floppy disks and was it complied with?

(ii) Did the floppy disks form part of the criminal case file against the applicants? If so, were the applicants able to effectively challenge them by being able to access and review those disks and any other material that might relate to the admissibility, reliability and completeness of the former?

(iii) Were the floppy disks produced in the hearings before the trial court pursuant to the requirements of adversarial proceedings under Article 6 § 1 of the Convention?

(iv) Did the trial court examine the originals of the floppy disks from which the background information on the applicants derived? If so, when did such an examination take place and were the applicants informed of it in due time in order to exercise their rights of defence?

(v) What were the steps taken by the domestic courts to ensure that the floppy disks and the print-outs of the background information on the applicants were authentic and reliable? Did the domestic courts subject the floppy disks and the print-outs to a careful scrutiny given that the latter had, according to the applicants’ allegations, contained neither the names of officials who had compiled them nor their signatures? In that connection, did they verify who had extracted them from the floppy disks?

(vi) Were the applicants able to subject the originals of the floppy disks to an independent expert examination?

b. Did the domestic courts carry out an examination of the evidence in a manner compliant with the requirements of the right to a fair trial, including, in particular, the principles of equality of arms and adversarial proceedings and provided reasoned replies in respect of the applicants’ specific, pertinent, and important submissions in relation thereto?

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, the reasoned judgment of the trial court, documentary evidence against the applicants, and the written submissions of the applicants and their lawyers throughout the proceedings.

The Government are further requested to submit a translation of the Constitutional Court’s judgment in the case of Murat Polat and Sebahattin Ünlü (application no. 2014/13254, 7 November 2019).

ANNEX

No.

Applicant’s Name

Year of birth

Nationality

1.Fettah ALAY

1968Turkish

2.Åžeyhmus COÅžKUN

1972Turkish

3.Abdulaziz ÖNEN

1967Turkish