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SECOND
SECTION
CASE OF AKBULUT v. TURKEY
(Application
no. 7076/05)
JUDGMENT
STRASBOURG
1
December 2009
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 Akbulut v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Ireneu Cabral Barreto,
Danutė
Jočienė,
András Sajó,
Nona
Tsotsoria,
Işıl Karakaş,
Kristina
Pardalos, judges,
and Sally
Dollé, Section
Registrar,
Having
deliberated in private on 10 November 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 7076/05) 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 Şennur Şensoy
Akbulut (“the applicant”), on 23 February 2005.
- The
applicant was represented by Mr S. Cengiz, a lawyer practising in
İzmir. The Turkish Government (“the Government”)
were represented by their Agent.
- On
30 January 2009 the President of the Second Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
- The
applicant was born in 1969 and lives in İzmir.
- On
8 March 2004 the İzmir Public Prosecutor filed an indictment
against the applicant with the İzmir Magistrates' Court for
non-compliance with various administrative orders. He requested that
the applicant be sentenced pursuant to Article 526 of the Criminal
Code. The indictment was not served on the applicant. On 9 April 2004
the İzmir Magistrates' Court, without holding a hearing, issued
a penal order and found the applicant guilty as charged. The court
sentenced the applicant to three months' imprisonment and to a fine
of 54,525,000 Turkish Liras (TRL). In the same judgment, the
court commuted the sentence of imprisonment to a fine. The applicant
was therefore fined to a total of TRL 381,495,000. On 20 May 2004 the
İzmir Criminal Court of General Jurisdiction dismissed the
applicant's appeal without holding a hearing. This decision was
served on the applicant on 7 September 2004. The applicant paid the
fine on 5 December 2004.
THE LAW
- The
applicant complained under Article 6 § 1 of the Convention 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
further stated that the indictment of the public prosecutor had not
been served on her. In this respect, she complained that she had been
denied adequate time and facilities for the preparation of her
defence and the possibility of submitting counter arguments and
evidence, including the examination of witnesses, in breach of
Article 6 § 3 (a), (b) and (d) of the Convention.
- The applicant further maintained under Article 7 of the
Convention that both the Public Prosecutor and the courts had
misinterpreted the domestic law as her omissions did not fall within
the scope of Article 526 of the Criminal Code. Relying on Article 8
of the Convention, the applicant stated that her professional and
private life, in particular her reputation as a lawyer, would be
severely affected by the unfair judgments. Invoking Article 13 of the
Convention, she also submitted that the appeal procedure before the
İzmir Criminal Court of General Jurisdiction had not constituted
an effective mechanism. Finally, she complained under Article 1 of
Protocol No. 1 that the fine imposed on her by the unfair judgment
had deprived her of her property.
- The
Court observes that the complaints raised under Article 6 of the
Convention, concerning the fairness of the proceedings, are
not manifestly ill-founded within the meaning of Article 35 § 3
of the Convention. It further notes that this part of the application
is not inadmissible on any other grounds. It must therefore be
declared admissible.
- However,
as regards the remaining complaints raised under Articles 7, 8, 13
and Article 1 of Protocol No. 1 to the Convention, the Court finds
that an examination of the material submitted to it does not disclose
any appearance of a violation of these provisions. It follows that
this part of the application is manifestly ill-founded and must be
declared inadmissible pursuant to Article 35 §§ 3 and 4 of
the Convention.
- As
regards the merits, firstly, 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.
- The
Court observes that in the present case, in accordance with the
relevant domestic law prevailing at the time of the events, no public
hearing was held during the applicant's trial. Both the Izmir
Magistrates' Court, which issued the penal order and fined the
applicant, and the Izmir Criminal Court, which examined her
objection, took their decisions on the basis of the documents in the
case file. The applicant was not given the opportunity to defend
herself in person or through a lawyer before the courts which
determined her case.
- The Court reiterates that it has
already examined the same grievance in the several similar cases and
found a violation of Article 6 § 1 of the Convention
(Piroğlu and Karakaya
v. Turkey, nos.
36370/02 and 37581/02, 18 March 2008; Dağlı
v. Turkey, no.
28888/02, 27 November 2007; Karahanoğlu
v. Turkey,
no. 74341/01, 3 October 2006; Mevlüt
Kaya v. Turkey,
no. 1383/02, 12 April 2007; and Taner
v. Turkey,
no. 38414/02, 15 February 2007). It has also examined the
present case and finds no particular circumstances which would
require it to depart from its findings in the aforementioned
judgments.
- 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.
- Consequently,
there has been a violation of Article 6 § 1 of the Convention.
- Concerning
just satisfaction, the applicant claimed TRL 381,495,000 in
respect of pecuniary compensation. She further requested EUR 5,000
in respect of non-pecuniary damage. Finally, the applicant claimed
EUR 4,735.75 in respect of legal fees covering 26 hours
of legal work, spent in the preparation and presentation of this case
before the Court, and EUR 36 in respect of
costs and expenses.
- As
regards pecuniary damage, the Court notes that it cannot speculate as
to what the outcome of proceedings compatible with Article 6 of the
Convention would have been. Accordingly, it makes no award under this
head (see Piroğlu and Karakaya, cited above, § 72).
- Moreover,
the Court considers that the finding of a violation constitutes in
itself sufficient just satisfaction for any non-pecuniary damage
suffered by the applicant.
- Finally,
in the light of the documents in its possession, the Court considers
it reasonable to award the applicant EUR 1,000 for legal fees,
costs and expenses.
- 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 complaints under 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 that the finding of a violation
constitutes sufficient just satisfaction for any non-pecuniary damage
suffered by the applicant;
- Holds
(a) that
the respondent State is to pay the applicant, in
respect of costs and expenses, 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), plus any tax that may be chargeable to the
applicant, which sum is to be converted into Turkish liras at the
rate applicable at the date of settlement;
(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 1 December 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens Registrar President
