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 } .sA36B60A1 { font-family:Arial; font-style:italic } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s6B505E72 { margin:0pt; padding-left:0pt } .sD11CFAB7 { margin-top:14pt; margin-left:15.01pt; margin-bottom:3pt; text-align:justify; padding-left:1.99pt; font-family:Arial } .sFBC99493 { font-style:italic } .s51DFF5CF { margin-top:0pt; margin-left:34pt; margin-bottom:0pt; text-indent:-17pt; text-align:justify } .sE5BF05B1 { width:2.33pt; font:7pt 'Times New Roman'; display:inline-block } .s17E903BE { width:3.01pt; font:7pt 'Times New Roman'; display:inline-block } Published on 17 February 2025   SECOND SECTION Application no. 30280/18 Ziya ULUSOY against Türkiye lodged on 25 May 2018 communicated on 29 January 2025 SUBJECT MATTER OF THE CASE The application concerns the alleged unfairness of criminal proceedings against the applicant who was convicted, in conjunction with Article   220   §   5 of the Criminal Code, of various offences committed by members of an armed terrorist organisation, namely the Marxist-Leninist Communist Party of Turkey (“MLKP”). The provision in question provides that leaders of a criminal organisation be held criminally liable for acts committed by its members. It further pertains to an alleged breach of Article 7 of the Convention on account of the lack of a legal basis for the Court of Cassation’s decision to uphold some of the applicant’s convictions. The applicant complains that the domestic courts failed to discharge their duty to give a reasoned judgment under Article 6 § 1 of the Convention or to properly assess his arguments concerning, inter alia , the subject matter of the accusations against him and the allegedly flawed collection and use of evidence. The applicant further alleges a breach of Article 7 of the Convention, arguing that the Court of Cassation had upheld his convictions for the offences committed by the MLKP members in conjunction with Article 220 § 5 of the Criminal Code despite the fact that he had not been convicted of the offence of being a leader of an armed terrorist organisation.   QUESTIONS TO THE PARTIES 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 (see, for general principles, Moreira Ferreira v. Portugal (no. 2)   [GC], no.   19867/12, §§ 83-84, 11 July 2017, and Ayetullah Ay v.   Turkey , nos.   29084/07 and 1191/08, § 127, 27 October 2020)? In particular; (a)   Given the Court of Cassation’s decision to quash the applicant’s conviction under Article 309 of the Criminal Code and the absence of a conviction, at that time, under Article 314 § 1 or any other provision in conjunction with which the applicant could be found criminally liable under Article 220 § 5 of the same Code for the offences committed by the other MLKP members, did the Court of Cassation provide any reasons regarding the statutory basis of its decision to uphold the applicant’s convictions under Articles 174 and 204 of the   Criminal Code and Law no. 6136 in respect of which he had been convicted under Article 220 § 5 in his capacity as the leader of that organisation? (b)   Relatedly, did the Court of Cassation indicate the grounds on which the reasons leading it to quash the applicant’s convictions for acts committed by the other members of the MLKP in conjunction with Article   220 § 5 of the   Criminal Code were not applicable to his above-mentioned convictions (under Articles 174 and 204 of the   Criminal   Code and Law no. 6136), which were also given in conjunction with the same provision? (c)   Could an individual be convicted, in his or her capacity as the founder or leader of an armed terrorist organisation, of the acts committed by the other members of that organisation under Article 220 § 5 of the Criminal Code without having been convicted as a founder or leader of an armed terrorist organisation or of any other offence, such as an offence under Article 309 of the same Code, which, according to the Court of Cassation’s case-law, is regarded as having subsumed the offence under Article 314 § 1 of the Criminal Code? (d)   Having regard to the fact that the Court of Cassation excluded from its assessment a forty-page printout document, did it discharge its duty to give a reasoned judgment under Article 6 § 1 in respect of its conclusion that “the case file as a whole made it clear that the applicant was a leader of the MLKP and that he should be so convicted”? (e)   Did the domestic courts discharge their duty to properly examine the applicant’s submissions and arguments concerning the manner and place of his arrest which led them to conclude that he had been on his way to join the ordinary general meeting of the MLKP? In the same vein, having regard to the applicant’s allegations and the opinion of the Chief Public Prosecutor at the Court of Cassation dated 21   June 2015 that the trial court relied on evidence which had allegedly been collected pursuant to decisions given by the specially authorised Istanbul courts which acted outside their jurisdictions, did the domestic courts provide relevant and sufficient reasons in respect of this matter? In the absence of any judgment finding him guilty of being a leader of the MLKP or of an offence under any other provision in conjunction with which the applicant could be found guilty under Article 220 § 5 of the Criminal   Code for acts committed by other members of that organisation, did the Court of Cassation’s decision to uphold his convictions have a legal basis, as required by Article 7 of the Convention ( see, for general principles, Yüksel Yalçınkaya v. Türkiye [GC], no. 15669/20, §§   237 ‑ 242, 26 September 2023)?   The parties are requested to submit a translation of the plenary criminal divisions of the Court of Cassation’s judgment dated 20 February 2020 in case number E. 2015/6-727 and K. 2020/126 in which it was established that Article   220 § 5 of the Criminal Code could not be applied in the absence of a conviction for being a leader of a criminal organisation. Similarly, the parties are requested to provide the Court with the Court of Cassation’s case-law on the legal issue indicated in question (c) above.   The parties are further requested to submit all the relevant documents concerning the criminal proceedings relating to the offences quashed by the Court of Cassation.