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THIRD
SECTION
CASE OF MEVLÜT KAYA v. TURKEY
(Application
no. 1383/02)
JUDGMENT
STRASBOURG
12
April 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 Mevlüt Kaya v. Turkey,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Mr B.M. Zupančič,
President,
Mr C. Bîrsan,
Mr R. Türmen,
Mrs E.
Fura-Sandström,
Mrs A. Gyulumyan,
Mr E. Myjer,
Mr David
Thór Björgvinsson, judges,
and Mr S. Quesada,
Section Registrar,
Having
deliberated in private on 22 March 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 1383/02) 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 Mevlüt Kaya (“the
applicant”), on 5 July 2002.
- The
applicant was represented by Mr M. Sürücü, a lawyer
practising in İzmir. The Turkish Government (“the
Government”) did not designate an Agent for the purposes of the
proceedings before the Court
- On
4 May 2004 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 1951 and lives in İzmir.
- On
11 April 2000 the İzmir State Security Court ordered the
confiscation of the applicant's car on the ground that it had been
used during the commission of a crime. The applicant did not wish to
surrender his car.
- On
a unspecified date, the İzmir public prosecutor took a statement
from the applicant and on 10 July 2001 he filed a bill of indictment
with the İzmir Magistrate's Court accusing the applicant of “not
obeying the official authorities' order”. He requested that the
applicant be punished, pursuant to Article 526 § 1 of the
Turkish Criminal Code.
- On
17 July 2001 the İzmir Magistrate's Court, without holding a
public hearing, issued a penal order pursuant to Article 386 of
the Code of Criminal Procedure. It decided over the content of the
case file and sentenced the applicant to three months' imprisonment
and a fine of 35,591,400 Turkish liras (TRL). The court then commuted
the imprisonment to a fine and sentenced the applicant to a total
fine of TRL 249,139,300.
- On
13 August 2001 the applicant challenged this decision before the
İzmir Criminal Court. He requested that the Criminal Court hold
a hearing to examine his appeal.
- On
24 August 2001, the İzmir Criminal Court upheld the decision of
the Magistrate's Court without a hearing, noting that it was in
accordance with the law and procedure.
- The
applicant paid the fine in question on 10 December 2001.
II. THE RELEVANT DOMESTIC LAW
- 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 the lack of a public
hearing before the Criminal Court of First Instance that examines the
objections against the penal orders, would be in breach of the right
guaranteed under Article 6 of the Convention, as well as Article 36
of the Constitution.
- Additionally,
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 §§ 1, 2 and
3(c) OF THE CONVENTION
- The
applicant complained that he had been unable to defend himself in
person or through legal assistance, as there had been no public
hearing in his case. He further alleged that the principle of the
presumption of innocence had also been violated in the present case.
He invoked Article 6 §§ 1, 2 and 3 (c) of the Convention,
which, in so far as relevant, reads as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ... by [a]
... tribunal...
2. Everyone charged with a criminal offence
shall be presumed innocence until proved guilty according to law;
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 was in compliance 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 found in
the case file sufficient to decide on the case.
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 the 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 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 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), (d) 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 to appeal from a decision of first instance. Where,
however, domestic law provides for a right of appeal, the appeal
proceedings will be treated as an extension of the trial process and
accordingly will be subject to 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 and since
Article 6 § 2 and 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
Magistrate's Court that issued a penal order and sentenced the
applicant to pay a fine and the İzmir Criminal Court that
examined his objection, took a decision on the basis of the documents
found in the case file. The applicant's statement was taken only by
the İzmir Public Prosecutor. He was not given the opportunity to
defend himself in person or through a lawyer before the courts that
decided on his case. The Court, therefore, considers that the
applicant was not able to follow the criminal proceedings
effectively.
- In view of the above, the Court concludes that the
procedure followed by the judicial authorities 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.”
A. Damage
- The
applicant claimed 10,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government contended that the applicant's claim was excessive and
unacceptable.
- The
Court notes the causal link between the violation of Article 6 §
1 and the applicant's obligation to pay the fine (see, mutatis
mutandis, Nikula v. Finland, no. 31611/96, § 63,
ECHR 2002 II). It therefore considers that the applicant
suffered pecuniary damage of TRL 249,139,800. On the basis of the
average exchange rates applicable on the date of payment, the Court
awards him EUR 200 for the pecuniary damage.
- Moreover,
the Court considers that the finding of a violation constitutes in
itself sufficient compensation for any non-pecuniary damage suffered
by the applicant.
B. Costs and expenses
- The
applicant also claimed EUR 2,000 for the costs and expenses incurred
before the domestic courts and for those incurred before the Court.
- The
Government argued that the applicant failed to substantiate this
claim.
- The
Court, deciding on an equitable basis and considering its case-law,
awards the applicant EUR 500 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 application admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds that the finding of a violation
constitutes in itself sufficient just satisfaction for any
non-pecuniary damage sustained by the applicant;
- 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, the following
sums, to be converted into new Turkish liras at the rate applicable
at the date of settlement:
(i) EUR 200 (two hundred euros) in respect of pecuniary damage,
(ii) EUR 500 (five hundred euros) in respect of costs and expenses,
(iii) plus any tax 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 amounts 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 12 April 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Boštjan M. Zupančič
Registrar President
