CASE OF ATAY v. TURKEY
(Application no. 48555/08)
13 October 2020
This judgment is final but it may be subject to editorial revision.
In the case of Atay v. Turkey,
The European Court of Human Rights (Second Section), sitting as a Committee composed of:
Valeriu Griţco, President,
Peeter Roosma, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to:
the application 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 Metin Atay (“the applicant”), on 7 October 2008;
the decision to give notice to the Turkish Government (“the Government”) of the complaints concerning the applicant’s inability to lodge an appeal against the judgment of the first-instance court stemming from Article 305 of the former Code of Criminal Procedure and his alleged inability to put questions to witnesses in person, and to declare inadmissible the remainder of the application;
the parties’ observations;
Having deliberated in private on 22 September 2020,
Delivers the following judgment, which was adopted on that date:
1. The applicant was born in 1946 and at the time of lodging the application lived in İzmir. He was represented by Mr S. Cengiz, a lawyer practising in İzmir.
2. The Government were represented by their Agent.
3. The Government did not object to the examination of the application by a Committee.
4. The facts of the case, as submitted by the parties, may be summarised as follows.
5. On 23 August 2005 a certain M.D. lodged a criminal complaint with the Bodrum Chief Public Prosecutor’s Offıce, alleging that on 22 August 2005 he had been subjected to threats and insults by the applicant, who had also attempted to attack him.
6. On 25 August 2005 M.D. gave a statement to the gendarmerie officers in relation to his complaint, stating that the applicant had insulted him, threatened to kill him and approached him with an adze in his hand. His neighbours N.Ü.E. and N.G. had intervened and had thus witnessed the incident.
7. On the same day, N.Ü.E. and N.G. also gave statements to the gendarmerie officers. N.Ü.E. stated that she had heard the incident and that as soon as she had heard the applicant insult M.D. she had gone to where the incident was taking place to intervene and draw M.D. away. However, when she had intervened the applicant had walked up to her and M.D. with a tool in his hand, following which two other neighbours, R.G. and N.G., had come and drawn the applicant away. N.G. stated that she had heard an argument and had gone outside and seen M.D. and the applicant arguing with each other. According to her, insults had been used, and she had drawn M.D. away from the scene by inviting him for a coffee.
8. On 29 August 2005 the applicant gave a statement to the gendarmerie officers. In his statement, he denied the accusations against him, arguing that M.D. had insulted him and his wife as a result of a separate and unrelated complaint which he and certain other residents of the housing estate had lodged against M.D.
9. On 31 August 2005 the gendarmerie officers took the statement of the applicant’s wife, Y.A., in which she stated that M.D. had provoked the applicant by using strong and offensive words against him and that when the applicant had responded, M.D. had rushed out to the street with an adze in his hand, as a result of which the applicant had picked up a garden hoe to defend himself. According to her, the neighbours had not witnessed the beginning of the incident. On the same day, the applicant’s sister-in-law also gave a similar statement to the gendarmerie officers.
10. On 12 June 2006 the public prosecutor filed a bill of indictment, charging the applicant with defamation and attempting to inflict bodily harm.
11. At the first hearing held on 11 October 2006, the applicant gave evidence in person and endorsed the statement he had made to the gendarmerie officers. The applicant further stated that certain witnesses, namely N.G., R.G. and N.D., who had given statements against him during the investigation stage, might have given incomplete accounts of what had happened as they had been quite far from the scene where the incident had taken place, and he requested that they be examined by the court. M.D. also gave evidence in person, stating that he had not insulted the applicant, but that the applicant had used offensive words against him.
Defence witnesses Y.A. and S.A. also gave evidence in person, both stating that M.D. had insulted the applicant. The trial court decided to adjourn the hearing until 13 December 2006.
12. On 27 October 2006 N.G., R.G. and N.D., the victim’s wife, arrived at the trial court together with M.D. and his lawyer, upon which the trial court held a hearing of its own motion. The domestic court heard evidence from N.G., R.G. and N.D. without informing the applicant. It appears that R.G. and N.G. stated that they did not know whether M.D. had insulted the applicant or not. They further stated that they did not know what had happened at the beginning of the incident, as their house was nearly 30 metres away from the scene of the incident.
13. During the hearing held on 13 December 2006, the trial court read out the witnesses’ statements to the applicant, who in turn submitted written submissions in which he contested their statements as untrue. The applicant pointed out that the fact that N.G. and R.G. had stated that they did not know what had happened at the beginning of the incident proved that the victim’s allegation that it had been the applicant who had started the incident had been ill-founded.
14. In his written submissions dated 15 February 2007, the applicant stated that he had not been able to exercise his right to put questions to the witnesses in person because he had not been informed of the hearing held by the trial court of its own motion on 27 October 2006.
15. At a hearing held on 6 April 2007, the witnesses L.D. and Ü.D. were examined at the applicant’s request. At the end of the hearing, the trial court sentenced the applicant to a fine of 860 Turkish liras (TRY) for the offence of defamation and a fine of TRY 360 for the offence of attempted injury. In the light of the consistent statements of M.D. throughout the proceedings and the fact that they were corroborated by the statements made by N.G., R.G. and N.Ü.E., the trial court found it established that the applicant had insulted M.D. and had attempted to assault him with an adze. It also took account of the statements made by Y.A. and S.A., finding that the fact that the witnesses testifying in favour of the applicant were his relatives did not mean that they would not tell the truth. As a result, it went on to hold that the offence of defamation had been committed mutually by both the applicant and M.D. and accepted that the applicant had attempted to commit the offence of attempted intentional bodily harm as a result of unjust provocation by M.D. It thus reduced the applicant’s sentence.
16. As for the applicant’s submissions concerning his inability to put questions to N.G. and R.G., because they had been examined at a hearing of which he had not been informed, the trial court conceded that in principle all witnesses should be examined in the presence of the accused so that the latter could exercise his or her right to put questions. Nevertheless, it went on to hold that the witnesses had provided answers to what appeared to be the only point the applicant had wished to clarify by putting questions to them in person, namely whether M.D. had insulted the applicant first.
17. On 9 April 2008 the Court of Cassation declared the applicant’s appeal inadmissible on the ground that under Article 305 of the Code of Criminal Procedure, where the fine imposed did not exceed TRY 2,000, the judgment was not subject to appeal.
RELEVANT LEGAL FRAMEWORK AND PRACTICE
18. The general principles with regard to the use of evidence given by absent prosecution witnesses can be found in Schatschaschwili v. Germany ([GC], no. 9154/10, §§ 100-31, ECHR 2015) and Al-Khawaja and Tahery v. the United Kingdom ([GC], nos. 26766/05 and 22228/06, §§ 118-47, ECHR 2011).
19. Relevant domestic law and practice in relation to the restrictions placed on the right to lodge an appeal can be found in Bayar and Gürbüz v. Turkey, no. 37569/06, §§ 14-16, 27 November 2012.
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
A. Alleged restriction on the applicant’s right to lodge an appeal against his conviction
20. The Court notes that this complaint 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.
21. The applicant complained about the Court of Cassation’s decision to declare his appeal inadmissible given that the amount of the fine imposed on him had been lower than the statutory threshold provided for appeals in Article 305 of the Code of Criminal Procedure as in force at the material time. In the applicant’s submission, the aforementioned court’s decision had constituted an infringement of his right to have his conviction or sentence reviewed by a higher tribunal in violation of Article 2 of Protocol No. 7 to the Convention.
22. The Court, which is the master of the legal characterisation of the facts of the case (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 126, 20 March 2018), considers that the applicant’s complaint under this heading should solely be examined under Article 6 of the Convention (see, in particular, Brualla Gómez de la Torre v. Spain, 19 December 1997, § 33, Reports of Judgments and Decisions 1997-VIII), the relevant part of which reads as follows:
“In the determination of … any criminal charge against him, everyone is entitled to a fair … hearing … by [a] … tribunal …”
23. The Government contested that argument.
24. The Court reiterates that it has already examined the same legal issue, namely whether the application of Article 305 of the former Code of Criminal Procedure, which placed a restriction on an applicant’s right to lodge an appeal against his conviction, had restricted the applicant’s right of access to a court (see Bayar and Gürbüz, cited above, §§ 40‑49, and Yalçınkaya and Others v. Turkey, no. 25764/09, §§ 44-45, 1 October 2013), and found a violation of Article 6 § 1 of the Convention. Having examined the particular circumstances of the present case and the parties’ submissions, the Court does not discern any reason to depart from the conclusion reached in Bayar and Gürbüz (cited above).
25. Accordingly, the Court concludes that in the present case there has been a violation of Article 6 § 1 of the Convention.
B. Alleged inability to examine prosecution witnesses
26. The applicant further complained that the criminal proceedings had been unfair as he had been unable to exercise his right to put questions to the witnesses N.G., R.G. and N.D. at any stage of the proceedings, as provided for in Article 6 §§ 1 and 3 (d) of the Convention, the relevant parts of which read 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:
(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;”
27. The Government contested that argument, indicating that the questions the applicant had intended to put to the witnesses had already been asked by the domestic court and that his inability to put questions to the witnesses had not placed him in a disadvantaged position with regard to his right of defence. Moreover, the applicant’s conviction had not been based on the statements of witnesses who had not been examined by the trial court. The Government claimed that the applicant had been able, even without examining the witnesses himself, to present his defence submissions sufficiently and to challenge the evidence given by them.
28. The Court observes that the applicant gave evidence before the trial court during the first hearing and requested that the witnesses, namely N.G., R.G. and N.D., be examined by the trial court as they might not have heard the offensive words the victim had said to him in a low voice, given that their houses were quite far from the place where the incident had taken place (see paragraph 11 above).
29. It is not disputed between the parties that the trial court decided to hold a hearing on 27 October 2006 when the witnesses presented themselves of their own motion to give evidence which had otherwise been scheduled to be heard at the hearing on 13 December 2006. The Court further notes that the trial court did not inform the applicant or his lawyer of that hearing with a view to allowing them to put the questions they wished to address to the witnesses in person. The Court has already examined a similar situation in its judgment in Ürek and Ürek v. Turkey (no. 74845/12, § 66, 30 July 2019) and established that such a practice is of itself contrary to the principle of equality of arms. In the same judgment, the Court went on to hold that the right laid down in Article 6 § 3 (d) of the Convention would be devoid of substance if the taking of witness statements in the presence, and under the supervision, of a trial judge in the absence of the applicant and his or her lawyer could be regarded as a substitute for the applicant’s right to confront that witness in person and put questions to him or her directly (see Dimović and Others v. Serbia, no. 7203/12, § 61, 11 December 2018, where the examination of witnesses by the investigating judge was not of itself considered to be a sufficient counterbalancing factor by the Court in its examination under Article 6 § 3 (d) of the Convention). Nonetheless, it went on to hold that it could not be ruled out that in certain, albeit exceptional, cases such a possibility might be regarded as a relevant procedural safeguard under Article 6 § 3 (d) of the Convention.
30. The Court considers that the consideration of all the particular circumstances of the instant case, which will be examined below, and the trial court’s scrupulous examination of the specific legal question and its application of procedural safeguards may allow it to assume that the present case is an “exceptional” one in the sense of the term used in Ürek and Ürek (cited above). In that connection, the following points should be taken into consideration.
31. Firstly, the applicant was familiar with the identities of the witnesses, who were his neighbours; thus, he was able to challenge their credibility during the trial. Secondly, mention should also be made of the relatively minor character of the offence of which the applicant was convicted and the trivial nature of the dispute relating to the factual circumstances giving rise to the criminal proceedings against him. Another noteworthy aspect is the trial court’s awareness of the handicap caused to the defence by the applicant’s inability to put questions to the witnesses in person; it not only acknowledged that fact, but also appears to have clarified the points on the basis of which the applicant wished to put questions to the witnesses heard in his absence. More importantly, the trial court accepted that both the applicant and the victim had insulted each other, thereby recognising and accepting the factual circumstances as put forward by the applicant by putting questions to the witnesses in person. On that basis, the trial court also reduced the applicant’s sentence for the offence of defamation and further found it established that he had attempted to commit the offence of causing bodily harm as a result of the victim’s unjust provocation, which resulted in the reduction of his sentence for that offence too. Given that the trial court accepted and reduced the applicant’s sentence on the basis that both he and M.D. had made insulted each other, it appears that it put in place sufficient counterbalancing factors to compensate for the applicant’s inability to put questions to the witnesses in person. It is significant that before the Court the applicant did not contend that the trial court had left unanswered any other aspects duly raised by him during his trial in connection with his inability to put questions to the witnesses.
32. Bearing the above factors in mind and noting the absence of any other argument by the applicant which is capable of rebutting the above assumption, the Court concludes that it is not convinced that the hearing of the witnesses by the trial court in the absence of the applicant and his lawyer prejudiced the fairness of the overall proceedings.
33. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
34. 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.”
35. The applicant claimed 3,887.40 euros (EUR) in respect of pecuniary damage corresponding to the amount of the judicial fines and the victim’s legal costs he had been ordered to pay at the end of the criminal proceedings, and EUR 10,000 in respect of non-pecuniary damage.
36. The Government invited the Court to dismiss the applicant’s claims, arguing that they were excessive and did not correspond to the amounts set out in the Court’s case-law. The applicant had also failed to demonstrate the existence of a causal link between the pecuniary damage claimed and the violations alleged.
37. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicant EUR 1,500 in respect of non-pecuniary damage, plus any tax that may be chargeable.
B. Costs and expenses
38. The applicant also claimed EUR 108.90 for the costs and expenses incurred before the domestic courts, based on the minimum scale of fees of the Union of Bar Associations of Turkey for 2008 (the year during which his conviction became final). He further claimed EUR 3,750 for legal costs incurred before the Court, corresponding to thirty hours of work at EUR 125 per hour for the examination of the case file, preparation of the application form, examination of the Government’s observations and preparation of his observations in response. The applicant further claimed EUR 75.60 for postal, fax and stationery expenses incurred before the Court. In support of those claims, the applicant submitted a breakdown of the hours spent by his lawyer on the case, the minimum scale of fees of the Union of Bar Associations of Turkey for 2008 and invoices for postal expenses.
39. The Government argued that the applicant’s claims for costs and expenses should be rejected because of his failure to submit any documents in support of them. In their view, the amount claimed in respect of lawyer’s fees did not reflect the truth, as it was high in comparison to similar cases. Moreover, the applicant’s lawyer had failed to provide any details concerning his work, such as how many hours of work he had performed on which specific dates.
40. 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 were 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 rejects the claim for costs and expenses in the domestic proceedings (see Hülya Ebru Demirel v. Turkey, no. 30733/08, § 61, 19 June 2018). However, regard being had to the breakdown of the hours spent on the case by the applicant’s lawyer and the postal invoices, the Court considers it reasonable to award the sum of EUR 600 for the proceedings before the Court, plus any tax that may be chargeable to the applicant (see Aydın Çetinkaya v. Turkey, no. 2082/05, § 122, 2 February 2016, and Semir Güzel v. Turkey, no. 29483/09, § 50, 13 September 2016).
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the complaint concerning the applicant’s inability to lodge an appeal against the judgment convicting him admissible and the remainder of the application inadmissible;
2. Holds that there has been a violation of Article 6 § 1 of the Convention;
(a) that the respondent State is to pay the applicant the following amounts, to be converted into Turkish liras at the rate applicable at the date of settlement:
(i) EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 600 (six 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 13 October 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Hasan Bakırcı Valeriu Griţco
Deputy Registrar President