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THIRD
SECTION
CASE OF TANER v. TURKEY
(Application
no. 38414/02)
JUDGMENT
STRASBOURG
15
February 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 Taner v. Turkey,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Mr B.M. Zupančič,
President,
Mr J. Hedigan,
Mr R. Türmen,
Mr C.
Bîrsan,
Mrs A. Gyulumyan,
Mr E.
Myjer,
Mr David Thór Björgvinsson, judges,
and Mr S. Quesada, Section
Registrar,
Having
deliberated in private on 25 January 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 38414/02) 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, Mr Umut Taner (“the
applicant”), on 2 October 2002.
- The
applicant was represented by Mr K. Bilgiç, a lawyer practising
in Izmir. The Turkish Government (“the Government”)
did not designate an Agent for the purposes of the proceedings before
the Court.
- The
applicant alleged, in particular, that he did not receive a fair and
public hearing, as he was not informed promptly of the accusation
against him, he did not have adequate time and facilities for the
preparation of his defence and that he was not allowed to defend
himself in person or through a lawyer.
- On
13 December 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.
- On 30 May 2006 the Government filed observations on the
admissibility and merits. On 19 October 2006 the President of the
Third Section refused to include in the case file the applicant's
observations in reply to Government's observations and his just
satisfaction claims which were filed outside the time-limit (Rule 38
§ 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1984 and lives in İzmir.
- On
26 June 2002 the applicant, together with a friend of his, quarrelled
with a man in a park. The quarrel had turned into a fight and the
applicant stabbed the man in his left leg.
The
police and the public prosecutor took the statements of the parties,
including the applicant. The applicant denied having injured the man.
Following their questioning, they were all released.
- On
3 July 2002 the Public Prosecutor at the İzmir Magistrates'
Court filed an indictment against the applicant, on account of
assault with a knife and occasioning actual bodily harm. The
indictment was not notified to the applicant.
- After
having examined the case file, on 17 July 2002 the İzmir
Magistrates' Court issued a penal order, convicting the applicant and
sentencing him to pay 290,805,465 Turkish liras (TRL).
- On
30 August 2002 the penal order was notified to the applicant.
- On
6 September 2002 the applicant challenged the decision of the İzmir
Magistrate's Court, before the İzmir Criminal Court of First
Instance. He argued that he had been deprived of his right of defence
in violation of Article 6 of the Convention.
- On
11 September 2002 the İzmir Criminal Court of First Instance
upheld the decision of the Magistrate's Court, maintaining that it
was in accordance with the law and procedure.
- On
25 September 2002 the İzmir Public Prosecutor issued a payment
order under which the applicant was obliged to pay the relevant
amount. He was warned that in case he failed to pay the due amount,
the fine would be converted into prison sentence.
- The
applicant paid the relevant charge on 26 November 2002.
II. THE RELEVANT DOMESTIC LAW
- Article
465 § 4 of the former Criminal Code provide as follows:
“If the action does not cause any sickness or
prevent the victim from attending his/her usual occupation (...) the
offender shall be sentenced to 2 to 6 months' imprisonment or to a
fine of TRL 200 to 2,500. However, the legal proceedings may be
initiated only upon the victim's complaint.”
- The
relevant Articles of the Code of Criminal Procedure which was in
force at the time of the events, read as follows:
Article 302
“Save the exceptional circumstances described by
law, the courts shall decide on objections filed against the penal
orders without holding a hearing.
If the objection is upheld, the same court shall decide
on the merits of the case.”
Article 386
“The judge at the magistrates' court may, without
holding a hearing, rule on the offences which are within the
jurisdiction of the Magistrates' Court and it may subsequently issue
a penal order.
Only the sentencing to a fine, an imprisonment up to
three months, a suspension of a certain profession and a seizure
(...) may be adjudicated by a penal order. (...)”
Article 387
“If the judge at the magistrates' court considers
that the lack of a hearing may put the offender in an unfavourable
situation, then it could be decided to hold a hearing. “
Article 388
“In addition to the conviction, it should be noted
in the penal order, the designation of the offence, the applicable
provisions of law, the relevant evidence, and the possibility of
raising an objection within eight days after its notification (...).
The petition which raises an objection to the penal order shall be
approved by the trial judge. (...)”
Article 390
“A hearing shall be held if the objection is
raised against an imprisonment sentence given by a penal order. (...)
The suspect can be represented by a defence counsel
during the hearing. (...)
The objections against the penal orders (...) are
examined by a judge at the criminal court of first instance, in line
with the procedure described under Articles 301, 302 and 303. The
objection would suspend the execution of the penal order.”
- In
a judgment given on 30 June 2004 the Constitutional Court declared
Article 390 § 3 of the Code of Criminal Procedure
unconstitutional and a nullity. It held that lack of a hearing before
the Criminal Court of First Instance that examines the objections to
the penal order, would be in breach of the right to a fair hearing
guaranteed under Article 6 of the Convention, as well as Article 36
of the Constitution.
- Moreover,
the new Criminal Code and the Code of Criminal Procedure which came
into force on 1 June 2005, contain no provision concerning penal
orders.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant complained that he did not receive a fair and public
hearing, in the determination of the criminal charge against him. He
further complained that he was not informed promptly of the
accusation against him, he did not have adequate time and facilities
for the preparation of his defence and that he was not allowed to
defend himself in person or through a lawyer. He invoked Article 6 §§
1 and 3 (a), (b) and (c) of the Convention:
“1. In the determination (...) of any
criminal charge against him, everyone is entitled to a fair and
public hearing (...).
3. Everyone charged with a criminal offence
has the following minimum rights:
(a) to be informed promptly, in a language
which he understands and in detail, of the nature and cause of the
accusation against him;
(b) to have adequate time and facilities for
the preparation of his defence;
(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 disputed these allegations. They contended that the penal
order was issued by the Magistrate's Court in compliance with the
relevant provisions of the Code of Criminal Procedure. This was a
simplified procedure for minor crimes, aimed at diminishing the work
load of the courts. Moreover they maintained that the Turkish law
provided an option to object to penal orders.
- The
Government further maintained that, following the coming into force
of the new Criminal Code and Code of Criminal Procedure the procedure
of issuing of penal orders 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 the public character of proceedings before the
judicial bodies referred to in Article 6 § 1 protects litigants
against the administration of justice in secret with no public
scrutiny; it is also one of the means whereby confidence in the
courts can be maintained. By rendering the administration of justice
visible, 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, within
the meaning of the Convention (see, Sutter v. Switzerland,
judgment of 22 February 1984, Series A no. 74, p. 12, § 26).
- It
recalls that, read as a whole, Article 6 guarantees the right of an
accused to participate effectively in a 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 other authorities, Stanford v. the United Kingdom,
judgment of 23 February 1994, Series A no. 282-A, pp.
10–11, § 26).
- The
Court further notes that the provisions of paragraph 3 (a) of
Article 6 point to the need for special attention to be paid to
the notification of the “accusation” to the defendant.
Particulars of the offence play a crucial role in the criminal
process, in that it is from the moment of their service that the
suspect is formally put on written notice of the factual and legal
basis of the charges against him (Kamasinski v. Austria
judgment of 19 December 1989, Series A no. 168, pp. 36-37,
§ 79). Article 6 § 3 (a) of the Convention affords the
defendant the right to be informed not only of the “cause”
of the accusation, that is to say the acts he is alleged to have
committed and on which the accusation is based, but also the legal
characterisation given to those acts. That information should be
detailed (Pélissier and Sassi v. France [GC], no.
25444/94, § 51, ECHR 1999-II; Dallos v. Hungary,
no. 29082/95, § 47, 1 March 2001; Lakatos
v. Hungary (dec.), no. 43659/98, 20 September
2001).
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 and since the
sub-paragraphs of Article 6 § 3 may be regarded as 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, the practice of issuing penal orders ceased to exist.
- It
notes, however, that in accordance with the relevant domestic law
prevailing at the time of the events, no public hearing was held
during the applicant's prosecution. Both the İzmir Magistrates'
Court that sentenced the applicant to a pay a fine and the Izmir
Criminal Court of First Instance that dismissed his objection, took
their decision on the basis of the documents found in the case file.
The Court, therefore, considers that the applicant was not able to
follow the criminal proceedings effectively.
- Additionally,
the indictment dated 3 July 2002 was not notified to the applicant,
leaving him unaware of the factual and legal basis of the charges
against him. The first time the applicant was informed of the charges
against him was after the court had issued the penal order and
sentenced him to pay a fine.
- In
view of the above, the Court concludes that the procedure followed by
the judicial authorities had prevented the applicant from exercising
his defence rights properly and thus rendered the criminal
proceedings unfair.
-
It holds that there has been a violation of Article 6 § 1 of the
Convention.
II. 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.”
- The
Court notes that the applicant did not submit any claim for just
satisfaction within the time allowed.
- According
to its settled case-law (see, most recently, Giniewski v. France,
no. 64016/00, § 59, 31 January 2006), the Court does not
make any award by way of just satisfaction where quantified claims
and the relevant documentation have not been submitted within the
time-limit fixed for that purpose by Rule 60 § 1 of the Rules of
Court.
- In
those circumstances, the Court considers that the applicant has
failed to comply with his obligations under Rule 60. As no valid
claim for just satisfaction has been submitted, the Court considers
that no award should be made in this respect.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been a violation of Article
6 of the Convention;
- Dismisses the applicant's claim for just
satisfaction.
Done in English, and notified in writing on 15 February 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Boštjan M. Zupančič
Registrar President
