CEDH · CASELAW;COMMUNICATEDCASES;ENG — 12 novembre 2024

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } Published on 2 December 2024   SECOND SECTION Application no. 35128/22 Nazım POYRAZ against Türkiye lodged on 3 June 2022 communicated on 12 November 2024 SUBJECT MATTER OF THE CASE The application concerns, under Article 6 § 1 of the Convention, the alleged unfairness of criminal proceedings against the applicant due to a breach of the principle of immediacy, stemming from the change of a member of the trial court’s bench who had only sat at the last four hearings and had thus not examined any witnesses. The applicant stood trial before the Istanbul 7th Assize Court (“the trial court”) for two counts of incitement to murder, unlawful possession of firearms, and inflicting bodily injury. In its judgment dated 19 April 2017, the trial court convicted the applicant, by two votes to one, of, inter alia , incitement to murder caused by unjust provocation and sentenced him to eighteen years’ imprisonment. On 12 October 2017 the 1st Division of the Istanbul Regional Court of Appeal (“the Regional Court”) quashed the conviction for incitement to murder and remitted the case to the trial court for re-examination. On 13 July 2018 the trial court, composed of Judges Z.Ö., A.D. and M.D., gave its judgment and found, inter alia , the applicant guilty of incitement to murder and sentenced him to life imprisonment. The judgment was adopted by two votes to one. Throughout the trial, M.D. had been the only judge who sat on the trial court’s bench from the beginning until the end (save for the eighth and ninth hearings which were held after the reversal of the first judgment) and who had examined virtually all witnesses. He dissented in both the first and second judgments of the trial court, taking the view that there was no evidence, be it documents, testimony, information or any other material, which could show, to the criminal standard of proof (beyond reasonable doubt) that the applicant had incited H.Y. and A.A. to kill A.E. Judge Z.Ö. sat as a member of the three-judge panel of the trial court for the first time at the seventh hearing before the delivery of the first judgment and continued to do so in all of the subsequent hearings held until the end of the trial. He formed part of the majority in the first and second judgment of the trial court which resulted in the applicant’s conviction. Judge A.D. sat as a member of the trial court’s panel for the first time at the seventh hearing on 9 July 2018, that was after the reversal of the first judgment, and remained on the panel until the end of the trial. On 26 February 2019 the 1st Division of the Istanbul Regional Court of Appeal unanimously upheld the trial court’s judgment. On 26 June 2020 the 1st Division of the Court of Cassation dismissed, by three votes to two, the appeals lodged by the defendants, including the applicant. The president of the Division and a member dissented, arguing that the applicant’s conviction had been based on a hypothesis, because while it may certainly be thought that he had held a grudge against the personnel of the bar including A.E. after an altercation a few days before, he had carried out no acts that could be regarded as incitement, such as providing H.Y. and A.A. with weapons, making a promise to them, or giving them orders or directions. On 18 June 2020 the Chief Public Prosecutor’s Office at the Court of Cassation had used its right to lodge an extraordinary appeal, pursuant to Article   308 of the Code of Criminal Procedure, asking the 1st Division of the Court of Cassation to annul its decision in so far as it concerned the applicant. The Office took the view that the applicant should have been acquitted in the absence of absolute and credible evidence showing, beyond any reasonable doubt, that he had committed the offence of which he had been convicted. On 24 November 2020 the same panel of the 1st Division of the Court of Cassation dismissed, by three votes to two, the extraordinary appeal in question, resulting in the case being brought before the plenary criminal divisions of the Court of Cassation (“the plenary”). On 18 March 2021 the plenary dismissed, by thirteen votes to six, the extraordinary appeal, holding that the applicant and the deceased had a feud as a result of the altercation in the bar. On 15 April 2022 the Constitutional Court dismissed, in a summary fashion, an individual application lodged by the applicant. The applicant complains of a breach of “the natural judge principle”, arguing that despite the changes in the composition of the trial court’s panel, witnesses had not been re-examined before the judges who had ultimately convicted him of incitement to murder and sentenced him to life 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? Has there been a breach of the principle of immediacy on account of the changes in the composition of the trial court in the course of the proceedings (see, for the general principles, Orhan Şahin v.   Türkiye , no.   48309/17, §§ 48-49, 12 March 2024)? Did the higher instance courts remedy the alleged procedural shortcoming?