JOINT DISSENTING OPINION OF JUDGES YÜKSEL AND DERENČINOVIĆ

1. For the reasons set out below, we respectfully disagree with the majority’s conclusion that there has been a violation of Article 6 § 1 of the Convention. Consequently, we voted against the finding of a violation of this provision in the present case.

2. At the outset, we wish to recognise the trial court’s willingness to meaningfully engage with the Court’s finding of a violation in Mehmet Zeki Doğan v. Turkey (no. 38114/03, 6 October 2009). In the reopened proceedings, the applicant’s police statement was duly excluded from the case file and a fresh assessment was made on the basis of the other evidence. This, in our view, constituted a sincere effort on the part of the national judicial authorities to act in accordance with the Convention and to avoid any arbitrariness in their decision-making processes.

3. In the present case, the Court was called upon to assess the overall fairness of a set of criminal proceedings on the basis of a procedural defect stemming from the absence of a lawyer at a point in the investigation when the co-accused gave incriminating evidence against the applicant. In this connection, it fell first to the domestic courts to assess whether the procedural defect identified had been remedied in the reopened proceedings. Indeed, the lack of an assessment to that effect is in itself prima facie incompatible with the requirements of a fair trial and in the absence of such an assessment, the Court must make its own determination (see Mehmet Zeki Çelebi v. Turkey , no. 27582/07, § 51, 28 January 2020). However, we emphasise that in doing so, it is not the Court’s task to embark upon an assessment of evidence so as to determine whether a given procedural shortcoming has or has not irretrievably prejudiced the overall fairness of the proceedings, matters that primarily fall within the domain of the national courts, in accordance with the principle of subsidiarity (ibid., and Kohen and Others v. Turkey , no. 66616/10 and 3 others, § 59, 7 June 2022).

4. Bearing in mind the importance of this fundamental principle, we are of the opinion that the majority’s reasoning in the present case extends beyond the Court’s supervisory jurisdiction and encroaches on the margin of appreciation afforded to States by engaging in an assessment of the facts and evidence.

5. Firstly, we respectfully disagree with the majority’s finding that “the evidence given by M.K. and V.Ç. in the absence of a lawyer was decisive” in upholding the applicant’s conviction (see paragraph 98 of the judgment).

6. In this context, we would point out that is not for the Court to determine the weight to be attached to particular evidence, its admissibility, or the way in which it should be assessed (see Moreira Ferreira v. Portugal (No. 2) , no. 19867/12, § 83, 11 July 2017 and the authorities cited therein). It therefore goes beyond the Court’s remit to step into the role of the domestic court and engage in an assessment or share its opinion of how credible, convincing or substantial the evidence was.

7. In our view, the evidence presented before the domestic court in the original trial – including the statements of the co-accused (M.K., V.Ç. and B.T.), witness testimony from M.Ç., Ş.İ. and A.Ç., the findings of the reconstruction of events and the related expert reports – all corroborated the incriminating remarks made by M.K. and V.Ç., thus suggesting that, taken as a whole, the entire body of evidence built up a composite picture of the applicant’s alleged involvement in the offence.

8. Secondly, we are not convinced that the majority’s analysis is consistent with the Court’s case-law. Compliance with the requirements of a fair trial must be examined in each case having regard to the development of the proceedings as a whole and not on the basis of an isolated consideration of one particular aspect or one particular incident, although it cannot be excluded that a specific factor may be so decisive as to enable the fairness of the trial to be assessed at an earlier stage in the proceedings (see Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3 others, § 251, 13 September 2016, and Beuze v. Belgium [GC], no. 71409/10, §§ 121-22, 9 November 2018). However, contrary to this case-law, the majority seem to focus on one particular aspect of the proceedings, considered in isolation, namely the domestic courts’ lack of justification (see paragraph 97 of the judgment). Having regard to the proceedings as a whole, we are not convinced that this alleged shortcoming is sufficient to lead to the conclusion that there has been a violation in this case.

9. The Court’s task under Article 6 of the Convention is not to pronounce on the probative value or sufficiency of evidence for a particular outcome, but to assess whether the overall fairness of the proceedings was ensured through the lens of the procedural and institutional safeguards and the fundamental principles of a fair trial inherent in Article 6 of the Convention (see Ayetullah Ay v. Turkey , nos. 29084/07 and 1191/08, § 194, 27 October 2020). While we agree that a failure by the domestic court to provide reasoning to substantiate judicial decisions can, in some instances, be qualified as arbitrary to the point of prejudicing the fairness of proceedings (see Moreira Ferreira (no. 2) , cited above, § 85), we emphasise that the extent to which this duty to give reasons applies may vary according to the nature of the decision and must be determined in the light of the circumstances of the case (see García Ruiz v. Spain [GC], no. 30544/96, § 26, 21 January 1999 and the authorities cited therein).

10. Turning back to the facts of the present case, we stress that the trial court established that the impugned evidence had not been given under duress (see paragraph 35 of the judgment). Nor was its veracity or reliability challenged by the applicant. In addition, the trial court took the view that the other evidence, such as the statements of B.T. and M.Ç., corroborated the impugned evidence, thus supporting its accuracy (ibid.). When scrutinising the evidence, full justification was given as to the decision not to rehear witnesses, reasoning to which it appears that the applicant did not object (see paragraphs 30 and 72-73 of the judgment). For these reasons, and bearing in mind that Article 6 § 1 cannot be understood as requiring a detailed answer to every argument (see Van de Hurk v. the Netherlands , 19 April 1994, § 61, Series A no. 288), we are unable to agree with the majority’s conclusion that the domestic decision lacked reasons.