Published on 20 November 2023

SECOND SECTION

Application no. 16622/21 Onur KARA against Türkiye lodged on 15 March 2021 communicated on 2 November 2023

SUBJECT MATTER OF THE CASE

The application concerns the alleged unfairness of criminal proceedings against the applicant on account of the domestic courts’ failure to deliver a reasoned judgment.

On 23 March 2017 the Ankara Batı 6 th Court of First Instance (“the trial court”) convicted the applicant for damaging public property under Article 152 § 1 (a) of the Criminal Code and sentenced him to one year’s imprisonment on the grounds that he had broken a panel in his cell in the Sincan F-Type prison. Finding that the defendants would not refrain from committing another offence in the future, the trial court did not suspend the applicant’s sentence or the pronouncement of its judgment; nor did it apply alternative sanctions in lieu of imprisonment.

On 8 June 2017 the 5 th Criminal Chamber of the Ankara Regional Court of Appeal upheld his conviction.

On 8 July 2020 the Constitutional Court found his individual application inadmissible for being manifestly ill-founded. Two members of the Constitutional Court dissented, stating that the trial court’s failure to suspend the sentence or the pronouncement of the judgment or to apply alternative measures in lieu of imprisonment had been based on the previous convictions of the applicant’s two co-defendants, whereas the applicant himself had no criminal record. On that basis, the judges took the view that the trial court’s decision could not be solely justified by the use of discretion, since there was a flaw in the exercise of discretion.

Relying on Article 6 § 1 of the Convention, the applicant alleges that the trial court failed to give sufficient reasons in not suspending his sentence or the pronouncement of its judgment or not applying alternative sanctions in place of imprisonment.

QUESTIONS TO THE PARTIES

Did the applicant have a fair hearing in the determination of the criminal charges against him, in accordance with Article 6 § 1 of the Convention? In particular, did the trial court discharge its duty to give reasons for its decision not to (i) suspend the applicant’s sentence (Article 51 of the Criminal Code) or (ii) the pronouncement of the judgment (Article 231 of the Code of Criminal Procedure) or (iii) apply alternative sanctions (Article 50 of the Criminal Code) (see Moreira Ferreira v. Portugal (no. 2) [GC], no. 19867/12, §§ 83-84, 11 July 2017)?

The Government are invited to submit copies of all relevant documents concerning the applicant’s case, including, but not limited to, the minutes of all the hearings, statements of the applicant, the evidence against him, and the written submissions put forward in respect of him throughout the proceedings.

The Government are further invited to submit the relevant case-law of the Court of Cassation concerning the scope of the domestic courts’ obligation to give reasons while applying Articles 50 and 51 of the Criminal Code and Article 231 of the Code of Criminal Procedure.

The Government are lastly invited to submit the translation of the relevant pages of the domestic court’s reasoned judgment dated 23 March 2017.