Last Updated on October 3, 2020 by LawEuro
Communicated on 26 September 2018
SECOND SECTION
Application no. 38549/07
Ali ÖZDEMİR
against Turkey
lodged on 28 August 2007
STATEMENT OF FACTS
The applicant, Mr Ali Özdemir, is a Turkish national, who was born in 1965 and lives in Istanbul. He is represented before the Court by Mr D. Gür, a lawyer practising in Istanbul.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 8 May 2006 while he was driving in the company of another person, the applicant’s car was stopped and inspected by the police. One pistol, one magazine and seven 7,65 mm calibre cartridges were found in the trunk of the car.
On 7 June 2006 the Kadıköy public prosecutor’s office filed an indictment with the Kadıköy Criminal Court of First Instance, charging the applicant with possessing an unregistered firearm, contrary to Section 13 § 1 of the Fire Arms Act (Law no. 6136) and requesting his punishment.
On 5 October 2006 the trial court held the first hearing during which the applicant gave evidence in person and admitted that the materials found in his car belonged to him. At the same hearing the trial court found the applicant guilty as charged and sentenced him to one year’s imprisonment and a fine of 450 Turkish liras (TRY). Having regard to the personality and background of the accused and the manner in which the offence had been committed, the trial court commuted the prison sentence to a fine of TRY 7,300 pursuant to Article 50 § 1 (a) of the Criminal Code. It also ordered the seizure of the materials found in his car.
The Kadıköy public prosecutor’s office issued a payment order dated 9 November 2006 and sent it to the applicant. According to the notification service (tebliğ mazbatası), the applicant received the payment order on 27 November 2006. Both before the domestic authorities and the Court, the applicant strongly objected to that finding, claiming that the payment order had never been served on him, while at the same time contesting the veracity of the signature on the notification service.
According to the legislation in force at the material time, in the event of failure to pay a fine ordered under Article 50 § 1 (a) of the Criminal Code in whole or in part, an accused would have to serve a prison term.
On 10 January 2007 the Kadıköy Criminal Court of First Instance, following an examination based on the case file and without holding a hearing, decided to convert the fine imposed into one year’s imprisonment after having observed that the applicant had failed to pay the fine within the statutory thirty day limit. According to the information in the Court’s possession, that court did not summon the applicant or notify him of the procedure before it.
On the same day, the Kadıköy public prosecutor’s office decided to authorise the applicant’s detention in absentia as the applicant had failed to pay the fine within the specified time-limit as required by the payment order.
On 9 February 2007 at approximately 4.15 a.m. the applicant was arrested in Istanbul while driving his car in the vicinity of Kartal neighborhood and subsequently detained and sent to Ümraniye E-type prison. As the applicant had become aware of the Kadıköy Criminal Court of First Instance’s judgment dated 10 January 2007 on his arrest, his lawyer lodged an application to the Kadıköy public prosecutor’s office on the same day with a view to paying the fine.
Also on the same day the applicant’s lawyer filed an objection against the Kadıköy Criminal Court of First Instance’s judgment dated 10 January 2007 pursuant to Article 267 of the Code of Criminal Procedure. The lawyer submitted, inter alia, that the aforesaid judgment had not been served on the applicant and that he had effectively been deprived of his right to file an objection against that judgment on time.
On 15 January 2007 the applicant’s lawyer submitted another petition in which he reiterated his previous claims, asked for the applicant’s release and requesting a stay of execution of his sentence.
On 13 June 2006 the Kadıköy Assize Court dismissed the applicant’s objections, holding that the payment order had been served on the applicant on 27 November 2006 and that the signature on the notification service belonged to the applicant. That decision was served on the applicant’s lawyer on 8 March 2007.
On 16 March 2007 the applicant applied to the Ministry of Justice, requesting the Minister to refer the case to the Court of Cassation by way of a written order (yazılı emir).
On 14 June 2007 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 16 July 2007 the Court of Cassation dismissed that request.
On 14 October 2007 the applicant was released.
COMPLAINTS
The applicant complains that the failure to notify him of the proceedings in which his fine had been converted into imprisonment and the lack of a hearing as well as the absence of legal assistance in those proceedings were in breach of Article 6 of the Convention. The applicant further complains that the domestic courts did not conduct a meaningful examination into his allegation that the signature on the notification service had not belonged to him.
The applicant also complains that the deprivation of his liberty and the domestic authorities’ refusal to release him despite his application to pay the fine were in breach of Article 5 of the Convention.
QUESTIONS TO THE PARTIES
1. Was Article 6 § 1 of the Convention under its criminal head applicable to the proceedings before the Kadıköy Criminal Court of First Instance concerning the conversion of the fine into imprisonment pursuant to Article 50 § 6 of the Criminal Code (see Eckle v. Germany, 15 July 1982, § 77, Series A no. 51)? In the affirmative:
(a) Was the applicant duly informed of those proceedings before the Kadıköy Criminal Court of First Instance and of its judgment of 10 January 2007?
(b) Has there been a violation of Article 6 § 1 on account of the absence of a public hearing in those proceedings? Given that a court which examines an objection pursuant to Article 271 of the Code of Criminal Procedure may only hold a hearing in exceptional cases laid down by law, was the applicant required to raise this issue before the Kadıköy Assize Court?
The Government are requested to clarify what those “exceptional cases” are (Article 271 of the Code of Criminal Procedure) and to provide examples from domestic case-law in which the relevant courts decided to hold a hearing when called upon to examine an objection against a decision to convert the fine into imprisonment under Article 50 § 6 of the Criminal Code.
(c) Did the fairness of the proceedings require that the applicant be assisted by a lawyer in the proceedings in which his fine was converted into imprisonment?
(d) Was the applicant provided with reasoned decisions in respect of his allegations concerning the veracity of his signature on the notification service (tebliğ mazbatası)?
2. Was the applicant’s deprivation of liberty resulting from the conversion of his fine justified under Article 5 § 1 of the Convention? Within which sub-paragraph of that provision did the applicant’s deprivation of liberty fall?
Did it fall within paragraph (a) of that provision?
Or, was the applicant detained for “non-compliance with the lawful order of a court”, as provided for by subparagraph (b) of Article 5 § 1? If so was the measure taken against the applicant punitive in nature? If not, was a balance drawn between the importance in a democratic society of securing the immediate fulfilment of the obligation in question and the importance of the right to liberty (compare Velinov v. the former Yugoslav Republic of Macedonia, no. 16880/08, 19 September 2013)?
The Government are invited to submit information concerning the relevant domestic law and case-law examples related to the proceedings conducted pursuant to Article 50 § 6 of the Criminal Code regarding the conversion of fines into imprisonment. The Government are further requested to provide the official translations of the relevant legal provisions as they stood at the material time, including but not limited to Articles 50 and 52 of the Criminal Code, Articles 106 § 9 and 10 and 109 of Law no. 5275 on the enforcement of sentences and preventive measures and Article 51 § 1 of the Regulation on the enforcement of sentences and preventive measures.
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