SECOND SECTION

DECISION

Application no. 16682/15 Hamza EKİZ against Türkiye

The European Court of Human Rights (Second Section), sitting on 23 May 2023 as a Committee composed of:

Pauliine Koskelo , President , Lorraine Schembri Orland, Davor Derenčinović , judges , and Dorothee von Arnim, Deputy Section Registrar,

Having regard to:

the application (no. 16682/15) against the Republic of Türkiye lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 24 March 2015 by a Turkish national, Mr Hamza Ekiz (“the applicant”), who was born in 1964, lives in Giresun and was initially represented by Mr N. Ekiz, a lawyer practising in Istanbul, and later by Ms Z.B. Konal, a lawyer practising in Giresun, whom the applicant appointed as his representative by means of an authority form sent to the Court by a letter dated 28 June 2021;

the decision to give notice of the complaints concerning an alleged breach of the right to a fair trial to the Turkish Government (“the Government”), represented by their Agent, Mr Hacı Ali Açıkgül, Head of the Department of Human Rights of the Ministry of Justice of the Republic of Türkiye, and to declare inadmissible the remainder of the application;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The application concerned the alleged unfairness of criminal proceedings against the applicant owing to the domestic courts’ failure to respect his right to be represented by a lawyer of his own choosing and the purportedly ineffective legal assistance provided to him during the trial.

2. The applicant was tried for, and subsequently convicted of, involvement in the murder of a certain F.K. on 29 June 1994.

3. On 6 November 1998 the applicant appointed two lawyers, C.Ö. and U.A., to represent him in the criminal proceedings before the Kastamonu Assize Court. C.Ö. died before the beginning of the trial and U.A. withdrew from practice by his own volition while the criminal proceedings were still pending. According to the applicant’s submissions, the hearing held on 23 December 1999 was the last hearing in which he and his lawyer U.A. had taken part. During that hearing, the trial court granted the applicant’s request to be exempted from the obligation to participate in the hearings.

4. As mentioned above, on 9 March 2007 U.A. withdrew from practice by his own volition and his membership of the Ordu Bar Association was terminated.

5. On 19 January 2011 Ü.Y.Y. was assigned as the applicant’s officially appointed counsel, but he only took part in one hearing before the final hearing in the proceedings.

6. The final hearing was held in the Kastamonu Assize Court on 23 March 2011, during which the public prosecutor submitted his opinion on the merits of the case and the defence lawyers of the applicant’s co-accused presented their closing arguments. Only then did Ü.Y.Y. arrive at the court, upon which the trial court read out the public prosecutor’s opinion, the other documentary evidence and the procedural steps taken in his absence, and asked him to make his defence submissions. Ü.Y.Y. stated that he did not accept the points against the applicant, whom he asked the court to acquit in the absence of any credible and indisputable evidence. At the end of the hearing, the trial court convicted the applicant and sentenced him to life imprisonment, finding it established that he had introduced to a hitman the person who wished to have the victim in the case killed. On the same date Ü.Y.Y. submitted a short notice of appeal against the judgment.

7. The applicant claimed before the Court that he had been informed of the trial court’s judgment by SMS. Thereupon, he had retained his own lawyer and submitted a reasoned appeal petition against his conviction wherein he had complained, inter alia , of the trial court’s decision to assign him a lawyer without informing him and of the insufficient steps taken by Ü.Y.Y.

8. On 6 November 2012 the Court of Cassation upheld the trial court’s judgment.

9. On 15 May 2013 the applicant’s lawyer at the time, N. Ekiz, lodged an individual application with the Constitutional Court on the applicant’s behalf, alleging that the trial court’s failure to inform the applicant before assigning him a new lawyer and the ineffective legal assistance provided to him during the trial had breached his right to a fair trial. On 26 September 2013 the Constitutional Court declared the application inadmissible as being lodged outside the thirty-day time-limit.

10. On 3 February 2014 the applicant himself submitted an individual application to the Constitutional Court, complaining of the same human rights violations in almost identical wording as that of the previous application lodged on his behalf. On 30 June 2014 the Constitutional Court declared the application inadmissible as being manifestly ill-founded, having found no appearance of a violation of the applicant’s right to a fair trial, given that neither he nor his lawyer had showed the necessary due diligence in following the criminal proceedings. This decision was notified to the applicant on 13 October 2014.

11. On 24 March 2015 the applicant lodged the present application with the Court.

THE COURT’S ASSESSMENT

12. The Government raised a preliminary objection, asserting that the applicant had abused his right of individual application within the meaning of Article 35 § 3 (a) of the Convention, on the grounds that he had concealed from the Court the fact that the Constitutional Court had declared inadmissible the earlier individual application lodged by his lawyer (N. Ekiz) – which also concerned the alleged unfairness of criminal proceedings at issue in the present case – for being out of time. In the Government’s view, the applicant had lodged a second individual application with the Constitutional Court so that he could lodge a valid application with the Court, by making it appear as though he had complied with his obligation to properly exhaust the remedy in the Constitutional Court. It was noteworthy that the first individual application with the Constitutional Court had been made by the same lawyer who had lodged the present application with this Court after the dismissal of the second individual application by the Constitutional Court. In such circumstances, the Government took the view that the applicant’s failure to notify the Court of the previous individual application lodged on his behalf with the Constitutional Court had constituted an abuse of the right of individual application. On that basis, the Government invited the Court to declare the application inadmissible.

13. The applicant did not make any comment on the objection raised by the Government.

14. The notion of “abuse” within the meaning of Article 35 § 3 (a) of the Convention must be understood as any conduct on the part of the applicant that is manifestly contrary to the purpose of the right of individual application as provided for in the Convention and which impedes the proper functioning of the Court or the proper conduct of the proceedings before it (see S.L. and J.L. v. Croatia , no. 13712/11, § 48, 7 May 2015). The Court reiterates that an application may be rejected as an abuse of the right of application under Article 35 § 3 of the Convention if, among other reasons, an applicant submits incomplete or misleading information, in particular if the information concerns the very core of the case and no sufficient explanation is given for the failure to disclose that information. However, even in such cases, the applicant’s intention to mislead the Court must always be established with sufficient certainty (see Gross v. Switzerland [GC], no. 67810/10, § 28, ECHR 2014, with further references, and Komatinović v. Serbia (dec.), no. 75381/10, 29 January 2013, with further references). Any omissions on a representative’s part in this respect are in principle attributable to the applicant himself (see Bekauri v. Georgia (preliminary objection), no. 14102/02, §§ 22-25, 10 April 2012, and Martins Alves v. Portugal (dec.), no. 56297/11, §§ 16-17, 21 January 2014).

15. In the present case, the Court notes that in the application form lodged with it, the applicant indicated that the final domestic decision in respect of his complaints concerning the alleged unfairness of criminal proceedings under Article 6 of the Convention was the Constitutional Court’s decision dated 30 June 2014 whereby the same complaints had been declared inadmissible as being manifestly ill-founded. Nevertheless, the Court observes that on 15 May 2013 the lawyer – who later lodged the present application with the Court – had already lodged an application with the Constitutional Court on behalf of the applicant, which concerned identical grievances. Importantly, the Constitutional Court declared that first application inadmissible as having been lodged outside of the thirty-day time-limit. What is more, there was a striking similarity in the two application forms sent to the Constitutional Court, as identical complaints were submitted in an almost identical fashion. In view of the above, the Constitutional Court appears to have erroneously carried out a second examination on the merits of the case in which it had already delivered a final decision, as evidenced by its line of reasoning, albeit ultimately concluding that the complaint was in any event manifestly ill-founded. Be that as it may, the Court only learned of the above-mentioned developments from the Government’s observations dated 21 April 2021. In the light of the above elements, the Court is further satisfied that it is established with sufficient certainty that these developments were known to the applicant, represented by counsel, at the time of lodging the present application on 24 March 2015.

16. Furthermore, the applicant failed to advance any reason, let alone a plausible one, as regards his omission in failing to submit the impugned information (compare G.I.E.M. S.R.L. and Others v. Italy [GC], nos. 1828/06 and 2 others, § 173, 28 June 2018). In the Court’s view, the information which the applicant failed to disclose concerned an important aspect of the application and was material to its admissibility, notably the question of exhaustion of domestic remedies. In such circumstances, the Court is bound to conclude that the applicant knowingly withheld important information which may have a decisive bearing on the admissibility and merits of the application, thereby abusing his right to individual application (contrast Al-Nashif v. Bulgaria , no. 50963/99, § 89, 20 June 2002, and Zličić v. Serbia , nos. 73313/17 and 20143/19, §§ 55 ‑ 56, 26 January 2021; and compare G.I.E.M. S.R.L. and Others , cited above, § 174).

17. Accordingly, the Government’s preliminary objection must be upheld and the application must be declared inadmissible pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 15 June 2023.

Dorothee von Arnim Pauliine Koskelo Deputy Registrar President