M.T.B. v. TURKEY - 47081/06 (Judgment : Article 6 - Right to a fair trial : Second Section) [2018] ECHR 477 (12 June 2018)

In the case of M.T.B. v. Turkey,

The European Court of Human Rights (Second Section), sitting as a Chamber composed of:

Robert Spano, President,
Ledi Bianku,
Işıl Karakaş,
Nebojša Vučinić,
Valeriu Griţco,
Jon Fridrik Kjølbro,
Stéphanie Mourou-Vikström, judges,
and Stanley Naismith, Section Registrar,

Having deliberated in private on 22 May 2018,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 47081/06) 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 M.T.B. ("the applicant"), on 8 November 2006. The President of the Section acceded to the applicant's request not to have his name disclosed (Rule 47 § 4 of the Rules of Court).

2. The applicant, who had been granted legal aid, was represented by Mr F. Algan, a lawyer practising in Istanbul. The Turkish Government ("the Government") were represented by their Agent.

3. The applicant alleged, in particular, that he had not had a fair trial, in that he had been tried and convicted in absentia and had not been able to obtain a rehearing thereafter.

4. On 26 August 2013 the above complaint was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1953 and lives in Istanbul.

A. Criminal proceedings against the applicant

6. On 10 May 1999 a certain İ.Ö. lodged a criminal complaint against the applicant, claiming that he had issued an uncovered cheque dated 26 April 1999.

7. On the same date the Bakırköy public prosecutor's office indicted the applicant in the Bakırköy Criminal Court of First Instance under section 16 (1) of Law no. 3167 - in force at the material time - for issuing an uncovered cheque. The cheque bore the applicant's name underneath the name of the company of which he was president of the executive board, and the address of the company on the cheque was indicated as being "... Bakırköy / Istanbul".

8. On 2 September 1999 the trial court held a preparatory hearing (tensip) and ordered that a summons be served on the applicant.

9. On 6 October 1999 the trial court sent a copy of the bill of indictment, together with the notice of the first hearing, to the address written on the cheque. On the same day the trial court asked the Bakırköy public prosecutor's office to confirm the applicant's identity and enquire about his full address and provide it with this information.

10. On 7 October 1999 the summons was returned on the grounds that the applicant had left that address, leaving "P.K. [post box] 5 Bakırköy" as an alternative address.

11. Within the context of the enquiries to find out what the applicant's new address was, it appears that the Bakırköy public prosecutor's office asked the police and the mayor of the neighbourhood (muhtarlık) to collect information. In that connection, the police went to the address written on the cheque and concluded that the applicant had left it. According to the information received from the mayor of the neighbourhood, the applicant had left that address without giving any notification.

12. On 14 February 2000 the trial court held the first hearing in the absence of the applicant. The court decided to authorise his detention in absentia (tevkif müzekkeresi) with a view to obtaining his statements, under Article 223 of the former Code of Criminal Procedure, in force at the material time.

13. Between 14 February 2000 and 13 October 2004 the trial court waited for the detention order to be executed.

14. On 11 October 2001, while the criminal proceedings were ongoing, another court in Istanbul, namely the Bağcılar Criminal Court of First Instance, sent a summons to the applicant's home address - "... Avcılar / Istanbul" - requiring him to give evidence as a complainant in another set of criminal proceedings.

15. On 16 July 2001, in another set of criminal proceedings, the Küçükçekmece public prosecutor's office delivered a decision not to prosecute, in which it also indicated the applicant's address as being "... Avcılar / Istanbul".

16. On 26 May 2003 the trial court once again attempted to serve the summons at the address written on the cheque, but failed to do so for the same reasons.

17. On 21 June 2004 the trial court decided to serve the summons at the same address, in accordance with section 35 (4) of the Notification Act (Law no. 7201).

18. On 13 October 2004 the trial court convicted the applicant as charged and sentenced him to a fine (ağır para cezası) of 500,000,000 Turkish liras (TRL). That judgment was served on the applicant on 30 October 2004. The seven-day time-limit for lodging an appeal against the judgment expired, and in the absence of an appeal it became final.

B. The applicant's detention and his subsequent attempts to obtain a rehearing

19. On an unspecified date in 2006 several police officers from the Firuzköy police station in Avcılar, Istanbul, went to the applicant's apartment with an arrest warrant and invited him to attend the police station. At the police station, the applicant was informed that an arrest warrant had been issued against him following his conviction by a criminal court, and that he would be put in prison unless he paid the 500 Turkish liras (TRY)[1] fine previously imposed by the court. The applicant, who was unaware of any criminal proceedings against him, requested the details of the judgment in question and applied to the registry of the Bakırköy Criminal Court of First Instance for further information.

20. Upon examining the relevant case file at the registry of the first-instance court, the applicant discovered that he had been charged and convicted in absentia for issuing an uncovered cheque on 27 April 1999 and sentenced to a fine of TRY 500 [2], an amount corresponding to the amount of the cheque. Moreover, the judgment, which had been delivered on 13 October 2004 by the Bakırköy Criminal Court of First Instance, had become final in the absence of an appeal.

21. On 5 May 2006 the applicant lodged an appeal with the Bakırköy Criminal Court of First Instance, challenging the judgment in question on the grounds that it had been delivered in his absence and the accusations against him were ill-founded. He emphasised that he had not received any notice of the criminal proceedings or the judgment, not even when he had gone to the Bakırköy public prosecutor's office three months prior to the delivery of the impugned judgment to obtain his criminal record details for an unrelated matter. He added that the claimant in the criminal proceedings, İ.Ö., was his former girlfriend, and that he had given her a blank cheque as a guarantee that he would discharge their joint debt to a bank. They had in fact signed an official document on 12 March 1998 in the presence of a lawyer confirming that İ.Ö. would only be entitled to cash this cheque if the applicant failed to discharge their joint debt to the bank. Upon settling the debt with the bank, the applicant had requested that İ.Ö. return the blank cheque to him, but İ.Ö. had failed to do so, alleging that she had lost it. He had accordingly reported the cheque as missing to the bank, and had asked to be notified in the event of any attempts to cash it. On 27 April 1999, very shortly after his move to a new address, his former girlfriend had apparently attempted to cash the cheque, and when the cheque had not cleared, had brought a criminal complaint against him. Despite his instructions, he had not been contacted by his bank when the cheque in question had been deposited by İ.Ö., nor had he been advised that the cheque had bounced.

22. On the same day the Bakırköy Civil Court of First Instance issued a summary judgment dismissing the applicant's appeal as lodged out of time. It held that the judgment of 13 October 2004 had been duly served on him on 30 October 2004 in accordance with section 35 of Law no. 7201, and the appeal should therefore have been submitted by 8 November 2004.

23. On 22 May 2006 the applicant appealed against the summary judgment, reiterating the arguments he had previously submitted to the Bakırköy Civil Court of First Instance. He emphasised that, although his accurate address details could easily have been obtained from the mayor of the neighbourhood, the judgment of October 2004 had been served at the address which his company had moved out of on 15 April 1999. In his absence, it had apparently been posted on the door of the building. He therefore requested that the judgment which had been delivered in his absence be quashed or rectified.

24. On 21 September 2006 the Principal Public Prosecutor at the Court of Cassation delivered her opinion on the applicant's appeal, where she requested that the first-instance court's judgment of 5 May 2006 be quashed on account of the unlawful service of the initial judgment rendered in his absence.

25. On 2 October 2006 the Court of Cassation upheld the lower court's decision, holding that the judgment in question had been duly served on the applicant in accordance with section 35 of Law no. 7201 on Notifications.

26. On 8 November 2006, in accordance with Article 308 of the Code of Criminal Procedure, the applicant requested that the Principal Public Prosecutor at the Court of Cassation lodge an application to have the Court of Cassation's decision set aside.

27. It appears that the applicant was imprisoned on 24 November 2006 on account of his failure to pay the fine of TRY 500 imposed by the Bakırköy Criminal Court of First Instance on 13 October 2004.

28. On 26 November 2006 the applicant was conditionally released.

29. On 1 December 2008 the Principal Public Prosecutor at the Court of Cassation rejected the applicant's application under Article 308 of the Code of Criminal Procedure, maintaining that the applicant's arguments had already been examined by the Court of Cassation in its decision of 2 October 2006.

II. RELEVANT DOMESTIC LAW

30. Section 16(1) of the Law on the Protection of Payees and the Regulation of Payments by Cheque (Law no. 3167), entitled "Uncovered cheques", which was in force at the material time, read as follows:

"Account holders or their authorised agents who issue a cheque that is not paid in full or in part, owing to [there being] insufficient funds in the bank account when [the cheque is] presented to the bank ... within the period specified in Article 4 [when the payee is officially able to cash the cheque], shall be sentenced to a ... fine (ağır para cezası) equal to the amount on the cheque, without prejudice to other acts proscribed by the [relevant] legislation."

31. Section 35 of the Notification Act (Law no. 7201), as in force at the material time, provided:

"Where a person who has been served with a document personally or at his or her home address in accordance with legally established procedures changes address, he or she must without delay communicate the new address to the judicial authority from which the notification emanated. In such cases, [service of] all subsequent notifications must be effected at the new address.

Where [this] person has failed to communicate his or her new address and the notifying officer has been unable to ascertain this new address, a copy of the document to be served shall be posted at the entrance to the building corresponding to the old address; the date on which the copy is posted shall be treated as the date of notification.

[Service of] subsequent notifications effected in this way at the old address shall be deemed to have been effected vis-à-vis the addressee.

Even if no prior notification has been given [in relation to those addresses], the provisions of this section shall also apply in respect of addresses stated on contracts entered into by parties who have accepted signing [those contracts] before the official authorities, and last addresses that are given to public institutions and organisations, to professional bodies with the status of public institutions, to commercial registries, and to registries of tradesmen and craftsmen."

32. Article 223 of the former Code of Criminal Procedure (Law no. 1412), applicable at the time of the applicant's trial in absentia, read as follows:

"In the event an accused does not appear before a court, the trial shall not commence, save for in the case of the exceptions provided for under this law.

If no valid reason for [an accused's] non-appearance is established, an order to compel the accused to attend the hearing to give evidence, or a detention order [in respect of accused], will be issued.

If an accused absconds subsequent to an arrest warrant being issued in his or her presence, and in the event he or she has already been heard and his or her presence has been deemed not necessary by the court, the case may be concluded in absentia.

If it is considered that a decision other than a conviction should be rendered in respect of an accused on the basis of evidence collected, the case may be concluded in absentia even if an accused has not been heard."

33. Article 225 § 1 of the former Code of Criminal Procedure, applicable at the time of the applicant's trial in absentia, read as follows:

"A hearing may be held in the absence of an accused in the event that the offence that is the subject of the prosecution is punishable by a fine, light imprisonment (hafif hapis), confiscation, or a combination of those [punishments]. In such situations, a summons sent to an accused shall include the fact that a hearing may take place in his absence."

34. Article 421 of the former Code of Criminal Procedure read as follows:

Matters concerning heavy penalties within the meaning of this law

Article 421

"In accordance with this Code, matters concerning heavy penalties mean cases concerning offences punishable by the death penalty, heavy imprisonment (ağır hapis) and imprisonment for more than ten years."

35. On 1 June 2005 the new Code of Criminal Procedure (Law no. 5271) entered into force, repealing the former Code of Criminal Procedure. However, in accordance with Law no. 5320 on the entry into force and application of the [new] Code of Criminal Procedure, dated 31 March 2005, Articles 305-�326 of the former Code of Criminal Procedure on the procedure for appeals to the Court of Cassation were to remain in force until the regional appeal courts began operating. Article 307, Article 308, Article 315, Article 317, and the relevant parts of Article 318 of the former Code of Criminal Procedure, in force at the material time, read as follows:

Grounds for appeal on points of law

Article 307

"An appeal on points of law may not concern any issue other than the allegation of unlawfulness of the impugned judgment.

Non-application or erroneous application of a legal rule shall constitute unlawfulness."

Instances of unlawfulness

Article 308

Unlawfulness is deemed to be manifest in the following cases:

1. Where the court is not established in accordance with the law;

2. Where a judge who has been involved in the decision-making process was barred by statute from participating;

3. Where a judge, against whom a motion to disqualify him on the basis of a valid doubt submitted and accepted, or rejected unlawfully, has been involved in the decision-making process;

4. Where a court considers that it has jurisdiction over a case in contravention of the legislation;

5. Where a hearing has been held in the absence of the public prosecutor or other persons whose presence during the hearings is required by law;

6. Breach of the requirement to render a public judgment in cases where oral hearings are held;

7. Where the judgment does not contain reasoning;

8. Where the judgment has restricted the defence rights as regards crucial issues in the judgment."

Dismissal of an appeal owing to inadmissibility by the court which delivered the judgment

Article 315

"In the event that an appeal is lodged after the expiry of a time-limit, or is lodged in respect of a judgment that is not open to appeal, or an appellant does not have the right to appeal, the court whose judgment has been appealed against dismisses that appeal.

An appellant may, within one week of being served with that decision, ask the Court of Cassation to deliver a decision on that matter. In that case, the file will be sent to the Court of Cassation. However, suspension of the enforcement of a sentence shall not be granted on that basis."

Dismissal of an appeal by the Court of Cassation

Article 317

"In the event of an appeal being made orally or in writing:

In the event that the Court of Cassation finds that an appeal has not been made, orally or in writing, within the time-limit, or that a judgment is not open to appeal, or that an appellant has no right to appeal, it shall dismiss that request; otherwise, it will pursue its examination."

Hearings [before the Court of Cassation] in the context of examining offences punishable by heavy penalties

Article 318

"The Court of Cassation may, of its own motion or upon a request contained in an appeal, decide to hold a hearing when examining offences punishable by heavy penalties (ağır cezaya müteallik hükümler). An accused or his council -�upon the latter's request-� shall be informed of the date of the hearing.

..."

36. Article 40 of the new Code of Criminal Procedure, in force as of 1 June 2005, provides, in so far as relevant, as follows:

Restoration of the status quo ante (Eski hale getirme)

Article 40

"A person who has failed to comply with a time-limit through no fault of his own may ask for restoration of the status quo ante."

37. Article 299 of the new Code of Criminal Procedure, in force as of 1 June 2005, provides, in so far as relevant as follows:

"The Court of Cassation shall, of its own motion or upon a request contained in an appeal lodged by a defendant or an intervening party, decide to hold a hearing when examining judgments that concern ten years of imprisonment or more."

38. Article 311 § 1 of the new Code of Criminal Procedure, entitled "Grounds for reopening criminal proceedings in favour of convicted persons", reads as follows:

"Criminal proceedings terminated by a final judgment shall be re-examined by way of reopening the proceedings in favour of convicted persons if:

a) it is understood that a document used during the trial that affected the judgment was false;

b) it is understood that a witness or an expert who testified under oath gave false evidence or voted against the convicted person in a way that affected the judgment;

c) one of the judges who [was on the bench that] convicted the person was at fault in relation to the performance of his or her duties to an extent that necessitated his or her criminal prosecution or conviction, save for in cases where the fault was attributable to the convicted person;

d) a civil court judgment that was relied on as the basis for the criminal conviction has been rendered null and void by another final judgment;

e) new facts or new evidence are presented which either alone or in relation to the previous evidence may lead to the acquittal of the person who was convicted, or to his conviction on the basis of a more lenient criminal-law provision;

f) the European Court of Human Rights finds a violation of a right protected by the Convention and its Protocols and establishes that the criminal conviction is based on that violation. In that case, a request to reopen the proceedings may be made within one year of the date of the judgment of the European Court of Human Rights becoming final.

..."

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

39. The applicant complained that he had been denied a fair hearing, in that he had been tried and convicted in absentia and had been denied a fresh determination of his case. He referred to Article 6 of the Convention, the relevant parts of which read:

"1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing by [a] ... tribunal ...

40. The Government contested that argument.

A. Admissibility

41. The Court notes that the application is not manifestly ill-�founded within the meaning of Article 35 § 3 (a) 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 parties' submissions

(a) The applicant

42. The applicant firstly pointed out that the Government had not disputed the fact that he had been tried and convicted in absentia, or that he had had no knowledge of the criminal proceedings. He further submitted that the trial court had not shown the requisite due diligence in relation to finding his address during the trial, which had lasted approximately five years. It was also not clear what steps had been taken by the police to find his address when they had been instructed to do so by the trial court. In that connection, he referred to the fact that the trial court had neither requested information from the bank nor consulted the tax offices for his address. In the applicant's opinion, the trial court had simply not taken any steps to find his address after 29 November 1999.

43. Furthermore, the applicant maintained that he had informed the relevant authorities of his change of home address, as other courts and prosecution offices had been able to notify him of events relating to different criminal proceedings. To support that claim, he submitted the decisions of the Bağcılar Criminal Court of First Instance and the Küçükçekmece public prosecutor's office given in 2001, while the criminal proceedings against him in the instant case had been ongoing.

44. According to the applicant, since he had neither run away nor waived his right to appear, he should have had a fresh determination of his case at domestic level. However, all his applications had been rejected on the grounds that the trial court's decision had been served on him in accordance with section 35 of the Notifications Act. He took the view that, even assuming that he had been legally notified of the trial court's decision, that fact alone was not capable of preventing a violation of Article 6 in the instant case, given the authorities' failure to show the requisite due diligence in locating him.

(b) The Government

45. The Government argued that the trial court had acted diligently and had tried to find the applicant's actual address with a view to informing him of the date of the hearing. In that connection, the trial court had sought assistance from the public prosecutor's office, which in turn had asked the police and the mayor of the neighbourhood to take the necessary steps. Moreover, the trial court had also ordered the applicant's detention in absentia with a view to bringing him before the court to give evidence. However, the trial court had not been able to find the applicant's actual address, and had decided to serve its decision at the address indicated on the cheque, in accordance with section 35 in fine of the Notifications Act. Moreover, the applicant was a merchant, and he was supposed to run his business with due diligence, such as by providing the relevant institutions -�for example, the mayor of the neighbourhood - with his new address. In the Government's view, had the trial court sought the applicant's address indefinitely, that would have paralysed the conduct of the criminal proceedings and led to the time-limit for the prosecution expiring or a miscarriage of justice.

46. As concerns the question of whether the applicant was provided with a fresh determination, the Government submitted that he had been legally notified of the trial court's judgment and that his appeal had been rejected by the Court of Cassation as a result of being lodged out of time. Lastly, the applicant had waived his right to appear in person, since he had failed to ask the Court of Cassation to hold a hearing in his case.

2. The Court's Assessment

(a) General principles

47. The general principles with regard to trials in absentia can be found in Sejdovic v. Italy ([GC], no. 56581/00, §§ 81-88, ECHR 2006-�II; see also Sanader v. Croatia, no. 66408/12, §§ 50-53 and 67-74, 12 February 2015 for a recapitulation of the general principles and the relevant international material on the subject).

(b) Application to the present case

48. The Court notes at the outset that, at the material time, trial in absentia was only possible under Turkish criminal law in respect of an offence punishable by a fine, "light imprisonment (hafif hapis cezası)", confiscation, or a combination of those punishments (Article 225 of the former Code of Criminal Procedure). In the present case, the offence of which the applicant was accused - namely that of issuing an uncovered cheque, an offence under the first sentence of Section 16 of Law no. 3167, in force at the material time - was punishable by a fine. Thus, it was within the scope of Article 225 of the former Code of Criminal Procedure. Reiterating that the impossibility of holding a trial by default may paralyse the conduct of criminal proceedings, in that it may lead, for example, to the dispersal of evidence, the expiry of the time-limit for a prosecution, or a miscarriage of justice (Colozza v. Italy, 12 February 1985, § 29, Series A no. 89), the Court considers that the applicant's trial in absentia had a legal basis under the Turkish law in force at the material time.

49. The Court further notes that the first question to be answered is whether the applicant could be said to have expressly or through his own conduct - for instance by attempting to evade justice - waived his right to appear and defend himself. The starting point of that assessment will inevitably focus on the question of whether the applicant had knowledge of the criminal proceedings against him, without which no valid waiver can take place (see Dilipak and Karakaya v. Turkey, nos. 7942/05 and 24838/05, § 87, 4 March 2014, and compare Ait Abbou v. France, no. 44921/13, §§ 63-�65, 2 February 2017). In that connection, the Court notes that it does not have in its possession any evidence showing that the applicant either received the summonses to appear before the trial court or was served with the indictment or the final decision convicting him (see Abdelali v. France, no. 43353/07, § 52, 11 October 2012). Moreover, the Government did not dispute that before the Court (see Huzuneanu v. Italy, no. 36043/08, § 42, 1 September 2016). In such circumstances, it cannot be said that the applicant expressly and knowingly waived his right to appear and defend himself.

50. The Court will now examine whether the applicant was sufficiently aware of the criminal proceedings, with a view to deciding whether he tacitly waived his right to appear and defend himself in any other way, for example by intending to escape trial. In that connection, it notes once again that the Government have neither claimed nor submitted any document that could arguably indicate that he was aware or had sufficient knowledge of the trial. Instead, the Government's submissions in the instant case were focused on the fact that the trial court had acted diligently with regard to locating the applicant and had complied with the provisions of the domestic law then in force concerning the service of official documents. Moreover, the Government also argued that the applicant's absence at the trial had been the consequence of his failure to notify the authorities of his change of address.

51. As such, the Court should ascertain whether the trial court could be said to have shown sufficient diligence in its efforts to locate the applicant and to inform him about the criminal proceedings. In that connection, it makes the following observations. Firstly, although the applicant had issued the disputed cheque in his capacity as president of the executive board of his company, he was tried as an individual before the Bakırköy Criminal Court of First Instance. However, that court first sent a summons together with the indictment to the address of the company indicated by the applicant on the cheque. That summons was returned on the grounds that the company had left the address, leaving "PK. [post box] 5 Bakırköy" as the new address. At the same time, the trial court sought assistance from the prosecutor's office, which in turn asked the police and the relevant district mayor to locate the applicant. They concluded that the applicant had abandoned the address written on the cheque. Thereafter, the trial court issued a detention order in absentia in respect of the applicant under Article 223 of the former Code of Criminal Procedure, with a view to bringing him before the court, and waited from 14 February 2000 to 13 October 2004 for that warrant to be executed. Lastly, the trial court decided to serve the summons at the address indicated on the cheque, pursuant to section 35 (4) of the Law of Notifications then in force.

52. The Court takes note of the trial court's above-mentioned efforts. However, those efforts were limited to the address of the company indicated on the cheque. Significantly, the trial court never attempted to serve the indictment or the summons or its decision at the applicant's place of residence, despite the fact that he was tried before that court as an individual. More importantly, the Bağcılar Criminal Court of First Instance, which is also situated in Istanbul, was able to serve a summons at the applicant's home address on 11 October 2001, in relation to criminal proceedings in which he was a complainant (for an almost identical situation, see Colozza, cited above, § 28). Moreover, the Küçükçekmece public prosecutor's office, which is also situated in Istanbul, indicated the applicant's home address in its decision not to prosecute dated 16 July 2001, a decision made within the context of other criminal proceedings. At this point, the Court finds it important to reiterate that the police were also able to locate and arrest the applicant at his home address in 2006.

53. Having regard to the foregoing, and bearing in mind the prominent place which the right to a fair trial holds in a democratic society within the meaning of the Convention (see Hokkeling v. the Netherlands, no. 30749/12, § 62, 14 February 2017), the Court is unable to subscribe to the Government's argument that the trial court showed the requisite due diligence in its efforts to locate the applicant (see, mutatis mutandis, Davran v. Turkey, no. 18342/03, § 45, 3 November 2009, and Büyükdağ v. Turkey, no. 28340/95, § 67 in fine, 21 December 2000). In such a case, the submission that the national courts served the decision in accordance with the domestic legal provisions, a fact that is disputed between the parties in the present case, is not sufficient of itself to relieve the State of its obligations under Article 6 of the Convention.

54. Accordingly, the Court considers that the applicant had no knowledge of the proceedings, and he did not waive his right to appear and defend himself or attempt to evade justice. Thus, it remains to be determined whether the domestic legislation afforded him, with sufficient certainty, the opportunity to appear at a new trial (see Sejdovic, cited above, § 101 in fine, and also Jones v. the United Kingdom (dec.), no. 30900/02, 9 September 2003).

55. In that connection, the Court notes that the Government submitted no argument as to whether Turkish law, at the material time, offered any legal remedies providing for the rehearing of cases in which people had been tried and convicted in absentia, like the applicant in the instant case. Instead, the Government maintained that the applicant had been duly served with the decision and that he had failed to ask the Court of Cassation to hold a hearing, and consequently he should be considered to have waived that right.

56. The Court further observes that the applicant attempted to use the following legal remedies to achieve that aim. He lodged an appeal on 5 May 2006 against the decision of the Bakırköy Criminal Court of First Instance. However, that court dismissed his appeal as being lodged outside the time-limit for appeals (Article 315 of the former Code of Criminal Procedure). On 22 May 2006 the applicant lodged an appeal against that decision. On 2 October 2006 the Court of Cassation also rejected that appeal, maintaining that the trial court's decision had been lawfully served on the applicant under section 35 of the Notification Act. On 8 November 2006, in accordance with Article 308 of the Code of Criminal Procedure, the applicant requested that the Principal Public Prosecutor at the Court of Cassation to lodge an application to have the Court of Cassation's decision set aside. On 1 December 2008 his application was rejected.

57. In so far as the Government argued that the applicant had implicitly waived his right to appear by failing to ask the Court of Cassation to hold a hearing in his appeal, the Court notes that Article 318 of the former Code of Criminal Code provides for the possibility of a hearing only in cases where an offence is punishable by the death penalty, "heavy imprisonment" or imprisonment for more than ten years. However, the applicant was tried for issuing an uncovered cheque and subsequently sentenced to a fine. In other words, there was no legal possibility to hold a hearing before the Court of Cassation in the applicant's case, since the offence with which he was charged did not fall within the scope of Article 318. Given that the applicant had no right to a hearing before the Court of Cassation, he could not be said to have waived that right. The Government's argument must therefore be rejected.

58. Moving on to the trial court's examination following the applicant's late appeal, the Court observes that the appeal was rejected as being lodged outside the time-limit for appeals set out in Article 310 of the Code of Criminal Procedure, in force at the material time. The trial court relied on the fact that the decision had been served on the applicant in accordance with section 35 in fine of the Notifications Act, but he had failed to lodge the appeal on time.

59. As for the Court of Cassation, the Court notes that that court also rejected the applicant's appeal, stating that the decision had been legally served on him and that the trial court's decision to dismiss his appeal had been correct.

60. As regards the applicant's attempt to use an extraordinary remedy, namely his application under Article 308 of the new Code of Criminal Procedure, a remedy formerly known as "rectification of judgment", the Court reiterates that it has already held that the use of that procedure was at the discretion of the Principal Public Prosecutor at the Court of Cassation, and was therefore not a remedy directly accessible to individuals (see Akçiçek v. Turkey (dec.) no. 40965/10, 18 October 2011). In any event, that application was dismissed by the Principal Public Prosecutor's Office in the present case.

61. The Court reiterates that, in accordance with its case-law, the duty to guarantee a criminal defendant's right to be present in the courtroom - either during the original proceedings or in a retrial - ranks as one of the essential requirements of Article 6 and is deeply entrenched in that provision. Therefore, criminal proceedings which have been held in absentia and the reopening of which has been subsequently refused, without any indication that the accused has waived his or her right to be present during the trial, may fairly be described as "manifestly contrary to the provisions of Article 6 or the principles embodied therein" (see Stoichkov v. Bulgaria, no. 9808/02, § 56, 24 March 2005).

62. In the instant case, the Court has already found that the trial court failed to show the requisite due diligence in its efforts to locate the applicant. Nevertheless, both the trial court and the Court of Cassation confined their examination to just that point and dismissed the applicant's application, stating that the decision had been lawfully served on him, that is to say in accordance with the Notifications Act (see, mutatis mutandis, Kounov v. Bulgaria, no. 24379/02, § 52 in fine, 23 May 2006). They did not examine whether the applicant had in fact been notified or had unequivocally waived his right to appear and defend himself. Thus, the applicant's applications for a fresh factual and legal determination of his case were rejected, in the absence of any indication that he had waived his right to be present during the trial, a situation previously described by the Court in Sejdovic (cited above, § 84) as a "flagrant denial of justice".

63. In view of the above, the Court considers that the applicant, who was tried and convicted in absentia and has not been shown to have sought to escape trial or to have unequivocally waived his right to appear in court, was not afforded the opportunity to obtain a fresh determination of the merits of the charges against him by a court providing him with all the guarantees of a fair trial afforded by Article 6 of the Convention (see Sanader, cited above, § 95).

64. There has therefore been a violation of Article 6 § 1 of the Convention in the instant case.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

65. 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

66. The applicant claimed 86,400 Turkish liras (TRY) and TRY 100,000 in respect of pecuniary and non-pecuniary damage respectively. In that connection, he submitted that his trial in absentia and subsequent conviction had marked the end of his commercial life, since banks had been notified of the final judgment and had in turn refused to grant him loans or issue him with cheque books. That was also the reason why, at the time of his arrest by the police, he had not been able to pay an amount as little as TRY 500, and why that fine had been converted into imprisonment (tazyik hapsi). Moreover, he had no longer been able to fulfil the condition of having no criminal record in order to continue working as a translator. His job applications had also been rejected due to his criminal record. According to the applicant's submissions, his conviction was deleted from his criminal record on 30 October 2013. As a result, in respect of pecuniary damage, he claimed the minimum wage - TRY 800 - for each of the months between the date he had lodged his application and 30 October 2013. Lastly, in relation to determining any amount due in respect of non-pecuniary damage, the applicant asked the Court to take into consideration the fact that he had been deprived of his freedom for three days.

67. The Government argued that the State could not be required to pay damages in respect of loss for which it was not responsible.

68. As for pecuniary damage, the Court notes that it cannot speculate as to what the outcome of the trial would have been had it been in conformity with Article 6, and therefore an award of just satisfaction can only be based on the fact that the applicant did not have the benefit of the guarantees of that Article. It therefore makes no award in respect of pecuniary damage, since it is not possible to anticipate what the outcome of the trial would have been had it been conducted in the applicant's presence (compare and contrast Barberà, Messegué and Jabardo v. Spain (Article 50), 13 June 1994, § 16-20, Series A no. 285-�C, and Party for a Democratic Society (DTP) and Others v. Turkey, nos. 3840/10 and 6 others, §§ 133-�136, 12 January 2016).

69. As for non-pecuniary damage, the Court refers to its settled case-law to the effect that, in the event of a violation of Article 6 § 1 of the Convention, the applicant should, in so far as possible, be put in the position that he would have been in had the requirements of that provision not been disregarded (see Somogyi v. Italy, no. 67972/01, § 86, ECHR 2004-�IV). It further considers that where, as in the instant case, an individual has been convicted following proceedings that have entailed breaches of the requirements of Article 6 of the Convention, a retrial or the reopening of the case, if requested, represents in principle an appropriate way of redressing the violation (see Moreira Ferreira v. Portugal (no. 2) [GC], no. 19867/12, § 49, ECHR 2017 (extracts), and Sejdovic, cited above, § 126). In that connection, the Court also points out that Article 311 of the Code of Criminal Procedure allows for the reopening of the domestic proceedings in the event that the Court finds a violation of the Convention. It further considers that the applicant must have sustained non-�pecuniary damage which cannot be sufficiently compensated for by the finding of a violation. Ruling on an equitable basis, it awards the applicant 5,000 euros (EUR) in respect of non-pecuniary damage, plus any tax that may be chargeable on this amount.

B. Costs and expenses

70. The applicant also claimed EUR 2,000 in respect of his lawyers' fees - an amount corresponding to thirty-four hours of legal work consisting of meetings with the applicant, the examination of his case, and the preparation of the observations before the Court. He further requested EUR 200 for costs and expenses incurred before the domestic courts. In support of those claims, the applicant submitted a legal fee agreement, the Bar Association's scale of fees, and a breakdown of the amount of time spent by his lawyers on the case.

71. The Government stated that the applicant's lawyers had only taken part in the preparation of the observations and just satisfaction claims, and argued that the amount of the lawyers' fees did not reflect the truth, as it was high in comparison to similar proceedings. They further maintained that the applicant had failed to submit any proof of payment except in relation to the postal expenses. Accordingly, they asked the Court to dismiss the applicant's claims.

72. According to the Court's case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the full sum claimed, covering costs under all heads.

C. Default interest

73. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

III. APPLICATION OF ARTICLE 46 OF THE CONVENTION

74. Article 46 of the Convention provides:

Article 46

"1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.

2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution."

75. The applicant submitted that the violation in the instant case stemmed from a structural problem in Turkey, since Turkish law did not provide for an effective remedy either allowing for appeals or reopening proceedings conducted in the absence of an accused who had not had knowledge of those proceedings or waived his right to appear in person or escaped justice. Hence, under Article 46 of the Convention, he asked the Court to indicate to the respondent Government general measures that could be taken to put an end to the situation complained of.

76. The Government did not make any submissions on this issue.

77. In the particular circumstances of the present case and bearing in mind that a retrial or the reopening of the case, if requested, represents in principle an appropriate way of redressing the violation in the instant case, the Court does not consider it necessary to indicate general measures that the State ought to adopt for the execution of the present judgment.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;

2. Holds that there has been a violation of Article 6 § 1 of the Convention;

3. Holds, unanimously,

(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 amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 2,200 (two thousand two hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(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;

4. Dismisses the remainder of the applicant's claim for just satisfaction.

Done in English, and notified in writing on 12 June 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stanley NaismithRobert Spano
RegistrarPresident

[1]. On 1 January 2005 the Turkish lira (TRY) entered into circulation, replacing the former Turkish lira (TRL). TRY 1 = TRL 1,000,000.

[2]. The gross minimum wage at the time of the delivery of the judgment was TRY 444.15 per month.

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You are here: BAILII >> Databases >> European Court of Human Rights >> M.T.B. v. TURKEY - 47081/06 (Judgment : Article 6 - Right to a fair trial : Second Section) [2018] ECHR 477 (12 June 2018) URL: http://www.bailii.org/eu/cases/ECHR/2018/477.html Cite as: [2018] ECHR 477, ECLI:CE:ECHR:2018:0612JUD004708106, CE:ECHR:2018:0612JUD004708106