CEDH · CASELAW;COMMUNICATEDCASES;ENG — 29 janvier 2025

.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 } .s5FFF0A75 { margin-top:0pt; margin-bottom:0pt; font-size:7pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s25D5DE94 { margin-top:66pt; margin-bottom:0pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:7pt } .s1DE04B9 { margin-top:0pt; margin-bottom:0pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:7pt } .sA36B60A1 { font-family:Arial; font-style:italic }   Published on 17 January 2025   SECOND SECTION Application no. 2092/24 Şükrü KORKMAZ against Türkiye lodged on 26 December 2023 communicated on 29 January 2025   SUBJECT MATTER OF THE CASE The application concerns an alleged breach of the applicant’s right, under Article   6 §   1 of the Convention, to be tried by an impartial tribunal established by law, due to the involvement of Judge H.C. as a member of the Third Criminal Division of the Court of Cassation, both when that Division upheld the applicant’s conviction in the original trial and when it did so in the decision given after the same criminal proceedings had been reopened. The application further pertains to the domestic courts’ alleged failure to deliver a reasoned judgment and the Constitutional Court’s alleged failure to duly examine the complaints the applicant raised before that court. The applicant complains that his right to a fair trial under Article 6 of the Convention was breached in view of the participation of Judge H.C. as a member of the panel of the Third Criminal Division of the Court of Cassation, which had first upheld the trial court’s first judgment given at the end of the applicant’s original trial and then the trial court’s second judgment following the reopening of the criminal proceedings. In his view, such a state of affairs was contrary to Article 23 § 3 of the Code of Criminal Procedure, which stated that “[i]n case the proceedings are reopened, judge[s] who took part in the previous trial shall not take up [any] duties in the same case.” In the same vein, the applicant further complains that the domestic courts failed to deliver a reasoned judgment and to examine and address his submissions.         QUESTIONS TO THE PARTIES 1.     Did the applicant have a fair hearing in the determination of the criminal charge against him, in accordance with Article   6 §   1 of the Convention? In particular, having regard to the applicant’s allegation based on Article 23   §   3 of the Code of Criminal Procedure, which stated that “[i]n case the proceedings are reopened, judge[s] who took part in the previous trial shall not take up [any] duties in the same case”, was the applicant tried by an impartial tribunal established by law? Were the latter requirements complied with in view of the participation of Judge H.C. as a member of the panel of the Third Division of the Court of Cassation, which had not only upheld the trial court’s judgment given at the end of the applicant’s original trial, but also the trial court’s second judgment following the reopening of the criminal proceedings (see, for general principles, Guðmundur Andri Ástráðsson v.   Iceland [GC], no. 26374/18, §§   211-252, 1 December 2020, and Morice v.   France [GC], no. 29369/10, §§   73-78, ECHR 2015)?   2.     Did the domestic courts discharge their duty to give reasons in their decisions to convict the applicant (see, for general principles, Moreira Ferreira v. Portugal (no. 2) [GC], no. 19867/12, §§   83-84, 11 July 2017)?   (a)     In particular, having regard to the Forensic Medicine Institute’s medical report, which stated that the victim had sustained life-threatening bodily harm as a result of the blow inflicted on his head, did the domestic courts indicate the grounds on which it convicted the applicant of inflicting life-threatening bodily harm, despite the fact that it held that the applicant had injured the victim with a knife in his abdomen?   (b)     In the same vein, did the trial court’s decision given after the reopening of criminal proceedings contain sufficient reasons to find the applicant criminally responsible for the acts of other defendants, in view of its previous decision in which it decided to convict each defendant on the basis of their individual acts of inflicting bodily harm to the victim?   (c)     Did the domestic courts address and provide reasons for the applicant’s contention that such a legal stance was contrary to the well ‑ established case-law of the Court of Cassation, which held that defendants could not be jointly held criminally responsible for the aggravated result of bodily harm when the individual act of each defendant could be identified?   3.     Did the Constitutional Court discharge its duty to conduct a proper examination of the applicant’s submissions and arguments and give sufficient reasons to declare his complaints, in particular the above-mentioned ones, inadmissible in a summary fashion (see, for general principles, Ayetullah Ay v.   Turkey , nos.   29084/07 and 1191/08, § 127, 27 October 2020)?   The parties are requested to submit the case-law of the Court of Cassation concerning the application of the provisions of complicity to hold all the joint principals criminally liable for the aggravated result (life-threatening bodily harm) occurring in cases concerning the offence of inflicting bodily harm by joint principals. In that regard, the parties are requested to clarify whether it is possible, in such jointly committed offences, to hold some principals responsible for the aggravated offence and some for the simple form of the offence.