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SECOND
SECTION
CASE OF BARIŞIK AND ALP v. TURKEY
(Applications
nos. 29765/02 and 31420/06)
JUDGMENT
STRASBOURG
27
November 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 Barışık and Alp v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Mrs F.
Tulkens, President,
Mr A.B.
Baka,
Mr R.
Türmen,
Mr V.
Zagrebelsky,
Mrs A.
Mularoni,
Mrs D.
Jočienė,
Mr D.
Popović, judges,
and Mrs S. Dollé, Section
Registrar,
Having
deliberated in private on 6 November 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in two applications (nos. 29765/02 and 31420/06)
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 two Turkish nationals, Mr
Necati Barışık and Mr Yüksel Alp (“the
applicants”), on 3 July 2002.
- The
applicants were represented by Mr and Mrs Değirmenci lawyers
practising in İzmir. The Turkish Government (“the
Government”) did not designate an Agent for the purposes of the
proceedings before the Court.
- On
12 September 2006 the Court decided to give notice of the
applications to the Government. Under the provisions of Article 29 §
3 of the Convention, it decided to examine the merits of the
applications at the same time as their admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1975 and 1963 respectively and live in İzmir.
They were members of the executive board of the Izmir Branch of the
Human Rights Association (“the Association”) at the time
of lodging their applications to the Court. The applications stemmed
from two separate sets of criminal proceedings initiated against
them.
A. Proceedings regarding the Association members with
prior convictions
- On
10 July 2001 the Izmir Governor sent a letter to the Association
requesting that the membership of thirteen persons be annulled as
they were considered to be involved in illegal activities.
- On
6 August 2001 the Association replied to the Governor, maintaining
that they would not execute the request since none of these thirteen
persons had convictions which would ban them from founding or
becoming a member of an association, as provided by Article 4 §§ 2
and 3 of the Law on Associations (Law No. 2908).
- On
8 November 2001 and 13 November 2001, respectively, the İzmir
Public Prosecutor took the applicants' statements and informed them
that a prosecution had been initiated against them for non-compliance
with Article 4 of Law No. 2908 and that no court proceedings would be
initiated if they paid a fine of 142,366,000 Turkish liras (TRL)
per person within ten days. The applicants did not pay the fine
within ten days as required by the payment order.
- Subsequently,
on 3 December 2001 the İzmir public prosecutor filed a bill of
indictment against the applicants and the other members of the Board.
The public prosecutor requested that the accused be sentenced to a
fine under Article 75 of the Law on Associations and Article 119 of
the Criminal Code for their failure to comply with the İzmir
Governor's request. The bill of indictment was not notified to the
applicants.
- On
26 December 2001 the Izmir Magistrates' Court, without holding a
hearing, found the applicants and other co-accused guilty as charged
and, by a penal order (ceza kararnamesi), sentenced them to a
fine of TRL 213,548,400
per person. In doing so, the court relied on the “simplified
procedure” stipulated in Article 386 of the Code of Criminal
Procedure for relatively minor offences.
- The
applicants and the other co-accused filed an objection with the Izmir
Criminal Court against the decision of 26 December 2001.
- On
6 February 2002 the İzmir Criminal Court dismissed the
objection, without holding a hearing.
- The
applicants paid the due amounts.
- Subsequently,
on 16 December 2002 the first applicant applied to the Ministry of
Justice, requesting the Minister to issue a written order (yazılı
emir) and refer the case to the Court of Cassation.
- On
29 January 2003 the Minister of Justice issued a written order and
instructed the Chief Public Prosecutor at the Court of Cassation to
ask the Court of Cassation to set aside the judgment concerned.
- On
14 April 2003 the Court of Cassation quashed the judgment of the
Izmir Criminal Court dated 6 February 2002 and the case file was
remitted to the Izmir Magistrates' Court.
- On
14 May 2003 the İzmir Magistrates' Court held a preparatory
hearing and included the case in its list. It further decided to
summon all of the defendants, including the applicants, to its next
hearing.
- On
14 July, 7 August and 22 October 2003 respectively, the Court held
three hearings. The applicants did not attend any of them.
- At
its last hearing held on 22 October 2003, the Magistrates' Court held
that it lacked jurisdiction to hear the case because, following the
promulgation of Law No. 4854 on 24 April 2003, the sentence faced by
the applicants for not complying with the İzmir Governorship's
order had been classified as an administrative fine. During these
proceedings, none of the defendants made submissions to the court.
- On
20 November 2003 the second applicant's lawyer appealed against this
decision.
- On
25 February 2004 the Court of Cassation upheld the decision of the
İzmir Magistrates' Court Court. The case file was sent to the
Governorship of İzmir.
B. Proceedings regarding the Platform of Conscientious
Objectors to War
- On
9 October 2001 the applicants participated in a collective press
statement in protest against the military operations of the United
States in Afghanistan.
- By
letters dated 8 November 2001 to Mr Barışık and
13 November 2001 to Mr Alp, the prosecutor notified the
applicants that a prosecution had been initiated against them under
Article 34 of the Law on contributing to the establishment of an
unlawful organisation, the so-called “Platform of Conscientious
Objectors to War”. The prosecutor also informed the applicants
that no court proceedings would be initiated if each of them paid a
fine of TRL 142,366,000 within ten days.
- In
the absence of payment, the prosecutor filed an indictment, on
3 December 2001, charging the applicants and five directors of
the Association with a violation of Article 34 of the Act.
Again, the bill of indictment was not served on the applicants.
- On
31 December 2001 the Magistrates' Court of İzmir, following the
simplified procedure and, thus, without holding a hearing, convicted
the applicants as charged (case no. 2001/2160). By issuing a penal
order, it sentenced them to an increased fine of TRL 213,548,400
per person. However, the court suspended the sentence pursuant to
Article 6 of Law No. 647 on the execution of sentences.
- On
18 February 2002 the applicants filed an objection with the İzmir
Criminal Court against the penal order. They argued that their
convictions violated their right to freedom of expression and that “a
collective statement to the press” could not be classified as a
contribution to the establishment of an unlawful organisation. They
further complained that the indictment had not been communicated to
them and that the court had not obtained their statements or heard
their counter-evidence.
- On
20 February 2002 the criminal court dismissed their objection, again
without holding a hearing.
II. RELEVANT DOMESTIC LAW AND PRACTICE
27. The
relevant Articles of the Code of Criminal Procedure which was in
force at the time of the events, read as follows:
Article 302
“Unless otherwise specifically provided by law,
objection proceedings are conducted without a hearing. If necessary,
the public prosecutor [may be] heard.”
Article 386
“As regards infringements falling within its
jurisdiction, the ... magistrates' court makes its ruling, without
holding a hearing, through a penal order. The order can only be given
in cases of simple or aggravated fines or in relation to offences
carrying a maximum prison sentence of three months ...”
Article 387
“The judge schedules a hearing if he sees an
inconvenience in ruling in the absence of one.”
Article 390
“A hearing shall be held if the objection is
raised against a prison sentence imposed by a penal order. (...)
The suspect can be represented by defence counsel during
the hearing. (...)
The objections against 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 which examines
objections to penal orders, would be in breach of the right
guaranteed by Article 6 of the Convention, as well as Article 36 of
the Constitution.
- Article 343
§ 1 of the Code of Criminal Procedure, concerning references to
the Court of Cassation by written order of the Minister of Justice
(Yazılı emir ile bozma – “ the
reference by written order”) provides:
“Where the Minister of Justice has been informed
that a judge or court has delivered a judgment that has become final
without coming under the scrutiny of the Court of Cassation, he may
issue a formal order to the Chief Public Prosecutor requiring him to
ask the Court of Cassation to set aside the judgment concerned ...”
THE LAW
- Given
the similarity of the applications, both as regards fact and law, the
Court deems it appropriate to join them.
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicants complained under Article 6 § 1 of the Convention that
they had been deprived of their right to a fair and public hearing in
the determination of the criminal charges against them. They stressed
the fact that the courts had determined their case without holding a
hearing. The applicants further alleged a breach of Article 6 §
3 (a) of the Convention in that they had not been informed promptly
of the accusations against them as the public prosecutor's indictment
had not been communicated to them. Finally, they complained that they
had been deprived of their right to submit counter-arguments and
evidence, including the examination of witnesses, within the meaning
of Article 6 § 3 (b) and (d).
Article
6, 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:
(b) to have adequate time and facilities for
the preparation of his defence;
...
(d) to examine or have examined witnesses
against him and to obtain the attendance and examination of witnesses
on his behalf under the same conditions as witnesses against him;
...”
A. Admissibility
- The
Government argued that the applicants have failed to exhaust the
domestic remedies in respect of the second set of criminal
proceedings. In this connection, they recalled that at the end of the
first set of criminal proceedings the first applicant had applied to
the Ministry of Justice, requesting the Minister to refer the case to
the Court of Cassation. The Minister had acted in line with this
request and, as a result, the case had been referred to the Court of
Cassation. As the applicants did not follow the same procedure for
the second set of proceedings, in the Government's view, they could
not be considered to have exhausted domestic remedies, within the
meaning of Article 35 § 1 of the Convention.
- The
Court notes that the remedy referred to by the Government is an
extraordinary remedy under Turkish law. According to Article 343
of the Code of Criminal Procedure (see paragraph 29 above), only the
Chief Public Prosecutor at the Court of Cassation is empowered to
refer a case to the Court of Cassation, but he may do so only on the
formal instructions of the Minister of Justice. The remedy in
question is therefore not directly accessible to people whose cases
have been tried. Consequently, regard being had to the generally
recognised rules of international law, it is not necessary to try
this remedy in order to comply with the requirements of Article 35
§ 1 of the Convention (see Öztürk v. Turkey
[GC], no. 22479/93, § 45, ECHR 1999 VI).
Accordingly, the Court dismisses the Government's preliminary
objection.
- 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) 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 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 applicants' 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 delivered
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.
- The
Court observes, however, that in accordance with the relevant
domestic law prevailing at the time of the events, no public hearing
was held during the applicants' prosecution. Both the İzmir
Magistrates' Court which issued the penal orders and fined the
applicants, and the İzmir Criminal Court which examined their
objections, took their decisions on the basis of the documents in the
case files. Only the İzmir Public Prosecutor took the
applicants' statements in November 2001. They were not given the
opportunity to defend themselves in person or through a lawyer before
the courts which determined their cases. The Court, therefore,
considers that the applicants were not able to follow the criminal
proceedings effectively. As regards the subsequent procedure which
started upon the written order issued by the Minister of Justice on
29 January 2003, the Court notes that no defence submissions were
taken from the applicants and the other co-accused during the
proceedings, which ended without curing, or providing redress for the
earlier defects (see a contrario, Şentuna v. Turkey (dec.),
no. 71988/01, 25 January 2007).
- In view of the above, the Court concludes that the
procedure followed by the judicial authorities prevented the
applicants from exercising their defence rights properly and thus
rendered the criminal proceedings unfair.
- Consequently,
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
applicants each claimed 427.09 New Turkish Liras (YTL) in respect of
pecuniary damage and EUR 15,000 in respect of non-pecuniary damage.
- The
Government contested these claims.
- 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 considers that no award
can be made to the applicants under this head (Karahanoğlu v.
Turkey, no. 74341/01, § 43, 3 October 2006).
- Moreover,
the Court considers that the finding of a violation constitutes in
itself sufficient just satisfaction for any non-pecuniary damage
suffered by the applicants.
B. Costs and expenses
- The
applicants also claimed EUR 4,000 for legal fees and EUR 300 for
the costs and expenses incurred before the Court.
- The
Government contested the claims.
- 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 were
reasonable as to quantum. In the present case, the applicants have
not substantiated that they have actually incurred the costs so
claimed. Accordingly, it makes no award under this head.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Decides to join the applications;
- Declares the applications 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 applicants;
- Dismisses the remainder of the applicants' claim
for just satisfaction.
Done in English, and notified in writing on 27 November 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
S. Dollé F. Tulkens
Registrar President
