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SECOND SECTION
CASE OF ALDEMİR v. TURKEY
(Application
no. 37215/04)
JUDGMENT
STRASBOURG
22 September 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 Aldemir v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Ireneu Cabral Barreto,
Vladimiro
Zagrebelsky,
Danutė Jočienė,
András
Sajó,
Nona Tsotsoria,
Işıl
Karakaş, judges,
and Sally
Dollé, Section
Registrar,
Having
deliberated in private on 1 September 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 37215/04) 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 Mehmet Aldemir (“the
applicant”), on 17 May 2004.
- The
applicant was represented by Mr A. Ertunç, a lawyer practising
in İstanbul. The Turkish Government (“the Government”)
were represented by their Agent.
- On
10 September 2008 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 1978 and lives in İstanbul.
- On
27 July 2003 the applicant was stabbed by F.Ç. On the same day
the police took statements from F.Ç. and the applicant
separately. They were both wounded and accused each other of starting
the fight. On 29 July 2003 the Bakırköy Forensic
Institute delivered its reports on the applicant and F.Ç.,
which stated that they were unfit for work for ten and seven days
respectively. On 31 July 2003 the Bakırköy Public
Prosecutor filed an indictment against the applicant and F.Ç.
for assault occasioning bodily harm. The indictment was not served on
the applicant or F.Ç. On 21 November 2003 the Bakırköy
Magistrate's Court issued a penal order without holding a hearing and
found the applicant and F.Ç. guilty as charged. The court
fined each of them 462,377,000 Turkish liras.
In doing so, it relied on the “simplified procedure”
stipulated in Article 386 of the Code of Criminal Procedure for
relatively minor offences. On 14 January 2004 the applicant
challenged this decision before the Bakırköy Criminal
Court. On 30 January 2004 the Bakırköy Criminal Court
dismissed the objection without holding a hearing.
THE LAW
- 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 stated that the indictment of the
public prosecutor had not been served on him. In this respect the
applicant relied on Article 6 §§ 1, 2 and 3 (a), (b) and
(d) of the Convention. The Government contested these arguments.
- 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.
- 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 (see Piroğlu and Karakaya v. Turkey, nos.
36370/02 and 37581/02, § 38, 18 March 2008).
- The Court reiterates that it is a fundamental principle
enshrined in Article 6 § 1 that court hearings should be held in
public (see, among other authorities, Stefanelli v. San Marino,
no.35396/97, § 19, ECHR 2000-II). The Court recalls that it has
frequently found violations of Article 6 § 1 of the Convention
in cases raising issues similar to the one in the present
applications (see, inter alia, Karahanoğlu v. Turkey,
no. 74341/01, §§ 35 39, 3 October 2006; Evrenos
Önen v. Turkey, no. 29782/02, §§ 29-33,
15 February 2007; Nurhan Yılmaz v. Turkey (no.
2), no. 16741/04, §§ 22-24, 8 April
2008; Günseli Kaya v. Turkey (no. 2), no. 40886/02, §§
29- 32, 23 June 2009). It finds no reason to depart from such a
conclusion in the present case. Consequently, there has been a breach
of Article 6 § 1 of the Convention due to the lack of a hearing
in the applicant's case, as a result of which he was not able to
participate effectively in the criminal proceedings lodged against
him.
- As
regards the question of just satisfaction under Article 41 of the
Convention, the applicant claimed that he could not work for a period
of more than a month because of his wounds and, even then, his salary
had been reduced as he could not produce as much work as before. He
further asserted that he now had a criminal record which would make
it difficult for him to find new jobs in the future. He thus claimed
20,000 euros (EUR) and EUR 35,000 in respect of pecuniary damage and
non-pecuniary damage respectively.
With
regard to the costs and expenses, the applicant claimed a total of
EUR 5,000 for his medical expenses, the fine he had paid, lawyer's
fees and translation costs. In this respect he submitted the lawyer's
contract and a number of receipts.
- 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
makes no award under this head (see Karahanoğlu v. Turkey,
cited above).
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,
deciding on an equitable basis and considering its case-law, the
Court awards the applicant EUR 1,000 for 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 application admissible;
- Holds that there has been a violation of Article
6 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, 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 22 September 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens
Registrar President
