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SECOND
SECTION
CASE OF ERSEVEN AND OTHERS v. TURKEY
(Application
no. 27225/02)
JUDGMENT
STRASBOURG
24
January 2008
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 Erseven and Others v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise
Tulkens,
President,
András
Baka,
Ireneu
Cabral Barreto,
Rıza
Türmen,
Mindia
Ugrekhelidze,
Vladimiro
Zagrebelsky,
Danutė
Jočienė,
judges,
and Sally Dollé, Section
Registrar,
Having
deliberated in private on 4 January 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 27225/02) 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 Mr İlhami Erseven, Mr Hikmet Yıldırım,
Mr Veli Ateş, Mr İsmail Öztorun, Mr Ellez
Duman, Mr İsmail Kaya, Mr Kenan Atakul, Mr Süleyman
Çetinkaya and Mr Bekir Arslan (“the applicants”),
on 22 April 2002.
- The
applicants were represented by Mr Fevzi Gümüş, a
lawyer practising in Ankara. The Turkish Government (“the
Government”) did not designate an Agent for the purposes of the
proceedings before the Court.
- On
13 June 2006 the Court declared the application partly inadmissible
and decided to communicate the complaint concerning the alleged
breach of the applicants' right to a fair hearing 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
applicants, who were born in 1954, 1957, 1961, 1965, 1960, 1956,
1959, 1964 and 1958 respectively, live in Ankara, Izmir, Istanbul and
Çorum. They were members of the executive and auditors boards
of the Pir Sultan Abdal Cultural Association (“the
Association”), a non governmental organisation with its
headquarters in Ankara.
- On
15 November 2000 officers from the Ankara governor's office carried
out an inspection at the headquarters of the Association. They found
that the members of the executive board had failed to establish a
membership registration book and that the members of the auditors
board had failed to conduct a periodical inspection of the
Association, in breach of Articles 62 and 29 of the Law on
Associations (Law no. 2908).
- On
21 November 2000 officers from the Ankara Security Directorate also
conducted an inspection of the registers of the association and
discovered a number of defects. The Security Directorate then
requested an investigation against the members of the executive and
auditors boards of the association.
- On
an unspecified date, the Ankara public prosecutor imposed a fine of
92,510,000
Turkish Liras (TRL) per person on the members of the executive and
auditors boards of the Association.
- On
15 January 2001 a payment order was served on the members of the
executive and auditors boards who, however, did not pay the fine
within the statutory ten-day time-limit.
- Subsequently,
on 17 April 2001 the Ankara public prosecutor filed a bill of
indictment against the applicants, along with seventeen other persons
who were also members of the executive and auditors boards of the
Association. The public prosecutor requested that the accused be
sentenced to a fine, under Article 86 of the Law on Associations and
Article 119 § 5 of the Criminal Code, for their failure to
comply with Articles 29 and 62 of the same Law.
- On
11 September 2001 the Ankara Magistrates' Court (sulh ceza
mahkemesi) found the applicants and the other co-accused guilty
as charged and, by issuing an order (ceza kararnamesi),
sentenced them to an increased fine of TRL 136,890,000
per person.
- On
8, 9, 12 and 22 October 2001, the applicants filed objections against
the decision of 11 September 2001. In their petitions, the applicants
maintained that they had been deprived of the opportunity to make
defence submissions and that, therefore, they did not receive a fair
trial.
- The
Ankara Criminal Court of First Instance (asliye ceza mahkemesi)
dismissed the applicants' objections on the following dates:
- 11
October 2001 in respect of İlhami Erseven, Bekir Aslan, Süleyman
Çetinkaya and İsmail Kaya;
- 12
October 2001 in respect of Kemal Derin;
- 15
October 2001 in respect of İsmail Öztorun;
- 22
October 2001 in respect of Kenan Atakul and Hikmet Yıldırım;
and
- 30
October 2001 in respect of Ellez Duman.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- 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 an imprisonment sentence given by a penal order. (...)
The suspect can be represented by 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 which 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.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicants complained that they had been denied a public hearing in
the determination of the criminal charges against them and that they
had not been allowed to defend themselves in person before the trial
court in breach of Article 6 of the Convention, which reads, insofar
as relevant, as follows:
“1. In the determination of ... any
criminal charge against him, everyone is entitled to a fair and
public hearing by [a] tribunal...
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...”
A. Admissibility
- The Government submitted that six of the applicants,
with the exception of Kenan Atakul, Hikmet Yıldırım
and Ellez Duman, had failed to comply with the six months' rule. They
noted that the penal orders had become definite by the decision of
Ankara Criminal Court of First Instance on the dates indicated above
(see paragraph 12) and that the application had been lodged on 22
April 2002, which was more than six months later. They therefore
asked the Court to dismiss the application in respect of İlhami
Erseven, Bekir Aslan, Süleyman Çetinkaya, İsmail
Kaya, İsmail Öztorun and Kemal Derin, in accordance with
Article 35 § 1 of the Convention.
- The applicants did not respond to the Government's
submission.
- The
Court notes that most of the penal orders became final by the
decisions dated 11 October 2001, 12 October 2001 and 15 October 2001
rendered by the Ankara Criminal Court of First Instance, whereas the
application was introduced with the Court on 22 April 2002. It is
therefore clear that the application was not lodged within six months
of the final decision in respect of the above-mentioned six
applicants. Furthermore, in their observations in reply to those of
the Government, the applicants have failed to provide any explanation
concerning the date on which they had learned about the final
decision given by the Ankara Criminal Court of First Instance. Nor
did they establish the existence of specific circumstances which
might have prevented them from observing the time-limit laid down in
Article 35 § 1 of the Convention.
- In
view of the above, the Court concludes that the application has been
introduced out of time in respect of the applicants İlhami
Erseven, Bekir Aslan, Süleyman Çetinkaya, İsmail
Kaya, İsmail Öztorun and Kemal Derin, and must be rejected
under Article 35 §§ 1 and 4 of the Convention.
- As regards the remaining three applicants, namely
Kenan Atakul, Hikmet Yıldırım and Ellez Duman, the
Court holds 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. 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
hearing, the guarantee of which is one of the principles of any
democratic society (see, among others, Adem Arslan v. Turkey,
no. 75836/01, §§ 25 29, 19 December 2006; 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 to appeal from a decision of first instance. Where, however,
domestic law provides for such a right, 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 in the present case
- The
Court notes at the outset 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 (see, Adem Arslan, cited above, § 28).
- 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 applicants' prosecution. Both the Ankara Magistrates'
Court which issued the penal orders and sentenced the applicants to
pay fines, and the Ankara Criminal Court of First Instance which
examined their objections, took their decisions on the basis of the
documents in the case files. The applicants were not given the
opportunity to defend themselves in person or through a lawyer before
the courts which decided their case. The Court, therefore, considers
that the applicants were not able to participate in the criminal
proceedings effectively.
- 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.
- It
holds that there has been a violation of Article 6 § 1 of the
Convention in respect of the applicants Kenan Atakul, Hikmet Yıldırım
and Ellez Duman.
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 a total amount of 500,000 US dollars (USD) in
respect of pecuniary and non-pecuniary.
- 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
- Without
specifying any amount, the applicants asked the Court to make an
award in respect of the costs and expenses incurred before the
domestic courts and the European Court. In this connection, the
applicants submitted a contract where each of them had agreed to pay
EUR 1,000 to their representative.
- The
Government maintained that the amount claimed by each applicant was
excessive.
- 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, regard being had to
the information in its possession and the above criteria, the Court
rejects the claim for costs and expenses in the domestic proceedings
and considers it reasonable to award the total sum of EUR 1,500 to
the applicants jointly for the proceedings before the Court.
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 remainder of the application
admissible in respect of the applicants Kenan Atakul, Hikmet Yıldırım
and Ellez Duman, and inadmissible for the other six applicants;
- Holds that there has been a violation of Article
6 § 1 of the Convention in respect of the applicants Kenan
Atakul, Hikmet Yıldırım and Ellez Duman;
3. Holds that the finding of a violation
constitutes in itself sufficient just satisfaction for any
non-pecuniary damage sustained by these three applicants;
- Holds
(a) that
the respondent State is to pay Kenan Atakul, Hikmet Yıldırım
and Ellez Duman, jointly, within three months from the date on which
the judgment becomes final in accordance with Article 44 § 2 of
the Convention, the total sum of EUR 1,500 (one thousand five hundred
euros) in respect of costs and expenses, plus any tax that may be
chargeable, to be converted into New 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 applicants' claim
for just satisfaction.
Done in English, and notified in writing on 24 January 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise
Tulkens
Registrar President
