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SECOND
SECTION
CASE OF NURHAN YILMAZ v. TURKEY
(Application
no. 21164/03)
JUDGMENT
STRASBOURG
11
December 2007
This judgment will
become final in the circumstances set out in Article 44 § 2
of the Convention. It may be subject to editorial revision.
In the case of Nurhan Yılmaz v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Mrs F. Tulkens, President,
Mr I.
Cabral Barreto,
Mr R. Türmen,
Mr M.
Ugrekhelidze,
Mr V. Zagrebelsky,
Mrs A.
Mularoni,
Mr D. Popović, judges,
and Mrs S.
Dollé, Section Registrar,
Having
deliberated in private on 20 November 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 21164/03) against the Republic
of Turkey lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Turkish national, Ms Nurhan Yılmaz (“the
applicant”), on 9 June 2003.
- The
applicant was represented by Mrs Ö. Mungan, a lawyer
practising in Mardin. The Turkish Government (“the Government”)
did not designate an Agent for the purposes of the proceedings before
the Court.
- On
25 October 2005 the Court decided to give notice of the application
to the Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1978 and lives in Izmir.
- The
applicant was the representative of the Izmir branch of a political
journal, namely the “Bread and Justice” (Ekmek ve
Adalet) magazine.
- In
April and May 2002, the Istanbul State Security Court declared
several issues of this journal illegal and ordered their
confiscation.
- On
21 May 2002 police officers conducted a search in the branch
building, where they found some books, cassettes, magazines and
compact discs, which they believed to be illegal.
- On
an unspecified date, the Izmir public prosecutor took a statement
from the applicant and, on 15 July 2002, he filed an indictment with
the Izmir Magistrates' Court accusing the applicant of “not
obeying the official authorities' order” under Article 526 §
1 of the Criminal Code.
- On
6 September 2002 the Izmir Magistrates' Court, without holding a
hearing, issued a penal order pursuant to Article 386 of the Code of
Criminal Procedure, and sentenced the applicant to three months'
imprisonment and a fine. The imprisonment measure was then commuted
to a fine and the applicant was sentenced to a total fine of
381,682,144 Turkish liras (“TRL”).
- On
21 November 2002 the applicant challenged this decision before the
Izmir Criminal Court. On 3 December 2002 that court dismissed the
applicant's appeal without a hearing. The applicant was notified of
this final decision on 12 December 2002.
- Because
the applicant failed to pay her fine, on 21 January 2003, the
Karşıyaka public prosecutor transformed the fine into a
sentence of imprisonment. The applicant was imprisoned in April 2004
and was later released on probation due to good conduct.
II. RELEVANT DOMESTIC LAW
- A
full description of the relevant domestic law may be found in the
judgment in the case of Mevlüt Kaya v. Turkey (no.
1383/02, §§ 11-13, 12 April 2007).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 and 3 (c)
OF THE CONVENTION
- The
applicant complained that she had been unable to defend herself in
person or through legal assistance, as there had been no public
hearing in her case. She relied on Article 6 §§ 1 and 3 (c)
of the Convention, which in so far as relevant reads as follows:
“1. In the determination of ... any
criminal charge against him, everyone is entitled to a fair ...
hearing ... by [a] ... tribunal...
3. Everyone charged with a criminal offence
has the following minimum rights: ...
(c) to defend himself in person or through
legal assistance of his own choosing or, if he has not sufficient
means to pay for legal assistance, to be given it free when the
interests of justice so require; ...”
- The
Government contended that the procedure followed by the judicial
authorities had complied with the relevant provisions of the Code of
Criminal Procedure. It was a simplified procedure for minor crimes,
aimed at diminishing the work load of the courts. Additionally, they
noted that the Magistrates' Court did not consider it necessary to
hold a hearing as it regarded the applicant's statement taken by the
public prosecutor and the documents contained in the case file to be
sufficient to decide the case.
- The
Government further maintained that, following the coming into force
of the new Criminal Code and the Code of Criminal Procedure, the
penal order procedure no longer exists in Turkish law.
A. Admissibility
- The
Court notes that the application is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The general principles
- The
Court reiterates that it is a fundamental principle enshrined in
Article 6 § 1 that court hearings should be held in public. This
public character protects litigants against an administration of
justice without public scrutiny; it is also one of the means whereby
people's confidence in the courts can be maintained. By rendering the
administration of justice transparent, publicity contributes to the
achievement of the aim of Article 6 § 1, namely a
fair trial, the guarantee of which is one of the fundamental
principles of any democratic society (see, among others, Stefanelli
v. San-Marino, no. 35396/97, § 19, ECHR
2000 II).
- It
recalls that, read as a whole, Article 6 guarantees the right of an
accused to participate effectively in the criminal trial. In general
this includes not only the right to be present, but also the right to
receive legal assistance, if necessary, and to follow the proceedings
effectively. Such rights are implicit in the very notion of an
adversarial procedure and can also be derived from the guarantees
contained in sub-paragraphs (c) and (e) of Article 6 § 3 (see,
among others, Stanford v. the United Kingdom, judgment of
23 February 1994, Series A no. 282-A, pp. 10–11, § 26).
- Furthermore, Article 6 § 1 does not
guarantee a right of appeal, but where the domestic law so provides,
the appeal proceedings are to be treated as an extension of the trial
process and, accordingly, must also comply with Article 6
(Delcourt v. Belgium, judgment of 17 January 1970,
Series A no. 11, § 25).
2. Application of these principles to the present case
- The
Court considers that, in the instant case, it is more appropriate to
deal with the applicant's complaints under Article 6 § 1
globally due to the overlapping nature of the issues, the
sub-paragraphs of Article 6 § 3 being specific
aspects of the general fairness guarantee of the first paragraph.
- At
the outset, the Court notes that, in a judgment given on
30 June 2004, the Constitutional Court unanimously declared
Article 390 § 3 of the former Criminal Code
unconstitutional and a nullity, holding that depriving individuals of
a public hearing was in violation of the right to a fair trial.
Furthermore, with the new Criminal Code and the Code of Criminal
Procedure which came into force on 1 June 2005, penal orders ceased
to exist (paragraphs 12 and 15 above).
- However,
the Court notes that, in accordance with the relevant domestic law
prevailing at the material time, no public hearing was held at any
stage in the criminal proceedings against the applicant, who was
without legal assistance. Consequently, the Court considers that the
applicant was unable to follow these proceedings effectively.
- In view of the above, the Court concludes that the
procedure followed by the judicial authorities prevented the
applicant from exercising her defence rights properly and thus
rendered the criminal proceedings unfair.
- Accordingly,
there has been a violation of Article 6 § 1 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO.1
- The
applicant alleged that the confiscation of the various books,
cassettes, magazines and compact discs, following the police search
(paragraph 7 above), constituted a breach of Article 1 of Protocol
No. 1.
- The
Court notes that this property was owned by the journal, not the
applicant, and that she did not lodge the present application to the
Court as the journal's representative. Therefore, there has been no
interference with any of her property rights, within the meaning of
Article 1 of Protocol No. 1, and she cannot claim a breach of
such rights on the journal's behalf.
- It
follows that this part of the application is manifestly ill-founded
and must be rejected pursuant to Article 35 §§ 3 and 4 of
the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed YTL 100 (approximately 65 euros [“EUR”])
in pecuniary damage for those items confiscated by the police and not
returned to her. She further claimed EUR 10,000 in respect of
non-pecuniary damage.
- The
Government contended that the applicant's claims were excessive and
unsubstantiated.
- The
Court does not discern any casual link between the violation found in
respect of Article 6 § 1 and the pecuniary damage alleged.
However, in the light of the severity of the sanctions ultimately
imposed on the applicant without being heard by the trial court and
without legal assistance, it finds that the applicant must have
suffered some non-pecuniary damage. Ruling on an equitable basis, it
awards her EUR 1,000 under this head.
B. Costs and expenses
- The
applicant also requested EUR 3,387 for the costs and expenses.
- The
Government argued that the applicant failed to substantiate this
claim.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and were reasonable as to
quantum. In the present case, the applicant has not substantiated
that has actually incurred the costs so claimed. Accordingly, it
makes no award under this head.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning Article 6
of the Convention admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 1,000 (one
thousand euros) in respect of non-pecuniary damage, which sum is to
be converted into the currency of the respondent State at the rate
applicable at the date of settlement, and free of any taxes or
charges that may be chargeable;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 11 December 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
S. Dollé F. Tulkens
Registrar President
