SECOND SECTION
\nCASE OF M.T.B. v. TURKEY
\n(Application no. 47081\/06)<\/p>\n
JUDGMENT
\nSTRASBOURG
\n12 June 2018<\/p>\n
FINAL
\n12\/09\/2018<\/p>\n
This judgment has become final under Article 44 \u00a7 2 of the Convention. It may be subject to editorial revision.<\/p>\n
In the case of M.T.B. v. Turkey,<\/strong><\/p>\n The European Court of Human Rights (Second Section), sitting as a Chamber composed of:<\/p>\n Robert Spano, President, Having deliberated in private on 22 May 2018,<\/p>\n Delivers the following judgment, which was adopted on that date:<\/p>\n PROCEDURE<\/strong><\/p>\n 1.\u00a0\u00a0The case originated in an application (no. 47081\/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 (\u201cthe Convention\u201d) by a Turkish national, Mr M.T.B. (\u201cthe applicant\u201d), on 8\u00a0November 2006. The President of the Section acceded to the applicant\u2019s request not to have his name disclosed (Rule 47 \u00a7 4 of the Rules of Court).<\/p>\n 2.\u00a0\u00a0The applicant, who had been granted legal aid, was represented by Mr\u00a0F.\u00a0Algan, a lawyer practising in Istanbul. The Turkish Government (\u201cthe Government\u201d) were represented by their Agent.<\/p>\n 3.\u00a0\u00a0The applicant alleged, in particular, that he had not had a fair trial, in that he had been tried and convicted in absentia and had not been able to obtain a rehearing thereafter.<\/p>\n 4.\u00a0\u00a0On 26 August 2013 the above complaint was communicated to the Government and the remainder of the application was declared inadmissiblepursuant to Rule 54 \u00a7 3 of the Rules of Court.<\/p>\n THE FACTS<\/strong><\/p>\n I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE<\/p>\n 5.\u00a0\u00a0The applicant was born in 1953 and lives in Istanbul.<\/p>\n A.\u00a0\u00a0Criminal proceedings against the applicant<\/strong><\/p>\n 6.\u00a0\u00a0On 10 May 1999 a certain \u0130.\u00d6. lodged a criminal complaint against the applicant, claiming that he had issued an uncovered cheque dated 26\u00a0April 1999.<\/p>\n 7.\u00a0\u00a0On the same date the Bak\u0131rk\u00f6ypublic prosecutor\u2019s office indicted the applicant in the Bak\u0131rk\u00f6y Criminal Court of First Instance under section\u00a016\u00a0(1) of Law no.3167 \u2013in force at the material time \u2013for issuing an uncovered cheque. The cheque bore the applicant\u2019s name underneath the name of the company of which he was president of the executive board, and the address of the company on the cheque was indicated as being\u201c…\u00a0Bak\u0131rk\u00f6y\u00a0\/\u00a0Istanbul\u201d.<\/p>\n 8.\u00a0\u00a0On 2 September 1999 the trial court held a preparatory hearing (tensip) and ordered that a summons be served on the applicant.<\/p>\n 9.\u00a0\u00a0On 6 October 1999 the trial court sent a copy of the bill of indictment, together with the notice of the first hearing, to the address written on the cheque. On the same day the trial court asked the Bak\u0131rk\u00f6y public prosecutor\u2019s office to confirm the applicant\u2019s identity and enquire about his full address and provide it with this information.<\/p>\n 10.\u00a0\u00a0On 7 October 1999 the summons was returned on the groundsthat the applicant had left that address, leaving \u201cP.K. [post box] 5 Bak\u0131rk\u00f6y\u201d as an alternative address.<\/p>\n 11.\u00a0\u00a0Within the context of the enquiries to find out what the applicant\u2019s new address was, it appears that the Bak\u0131rk\u00f6y public prosecutor\u2019soffice asked the police and the mayor of the neighbourhood (muhtarl\u0131k) to collect information. In that connection, the police went to the address written on the cheque and concluded that the applicant had left it. According to the information received from the mayor of the neighbourhood, the applicant had left that address without giving any notification.<\/p>\n 12.\u00a0\u00a0On 14 February 2000 the trial court held the first hearing in the absence of the applicant. The court decided to authorise his detention in absentia (tevkif m\u00fczekkeresi)with a view to obtaining his statements,under Article\u00a0223 of the former Code of Criminal Procedure, in force at the material time.<\/p>\n 13.\u00a0\u00a0Between 14 February 2000 and 13 October 2004 the trial court waited for the detention order to be executed.<\/p>\n 14.\u00a0\u00a0On 11 October 2001, while the criminal proceedings were ongoing,another court in Istanbul, namely the Ba\u011fc\u0131lar Criminal Court of First Instance, sent a summons to the applicant\u2019s home address \u2013 \u201c…\u00a0Avc\u0131lar\u00a0\/\u00a0Istanbul\u201d \u2013 requiring him to give evidence as a complainant in another set of criminal proceedings.<\/p>\n 15.\u00a0\u00a0On 16 July 2001, in another set of criminal proceedings,the K\u00fc\u00e7\u00fck\u00e7ekmece public prosecutor\u2019s office delivered a decision not to prosecute, in which it also indicated the applicant\u2019s address as being \u201c…\u00a0Avc\u0131lar\u00a0\/\u00a0Istanbul\u201d.<\/p>\n 16.\u00a0\u00a0On 26 May 2003 the trial court once againattempted to serve the summons at the address written on the cheque, but failed to do so for the same reasons.<\/p>\n 17.\u00a0\u00a0On 21 June 2004 the trial court decided to serve the summons at the same address, in accordance with section 35(4)of the Notification Act (Law no.\u00a07201).<\/p>\n 18.\u00a0\u00a0On 13 October 2004 the trial court convicted the applicant as charged and sentenced him to a fine (a\u011f\u0131r para cezas\u0131) of 500,000,000\u00a0Turkish liras (TRL).That judgment was served on the applicant on 30 October 2004. The seven-day time-limit for lodging an appeal against the judgment expired, and in the absence of an appeal it became final.<\/p>\n B.\u00a0\u00a0The applicant\u2019s detention and his subsequent attempts toobtain a rehearing<\/strong><\/p>\n 19.\u00a0\u00a0On an unspecified date in 2006 several police officers from the Firuzk\u00f6y police station in Avc\u0131lar, Istanbul, went to the applicant\u2019s apartment with an arrest warrant and invited him to attend the police station. At the police station, the applicant was informed that an arrest warrant had been issued against him following his conviction by a criminal court, and that he would be put in prison unless he paid the 500 Turkish liras (TRY)[1]finepreviously imposed by the court. The applicant, who was unaware of any criminal proceedings against him, requested the details of the judgment in question and applied to the registry of the Bak\u0131rk\u00f6y Criminal Court of First Instance for further information.<\/p>\n 20.\u00a0\u00a0Upon examining the relevant casefile at the registry of the first-instance court, the applicant discovered that he had been charged and convicted in absentia for issuing an uncovered cheque on 27 April 1999 and sentenced to a fine of TRY 500[2], an amount corresponding to the amount of the cheque. Moreover, the judgment, which had been delivered on 13\u00a0October 2004 by the Bak\u0131rk\u00f6y Criminal Court of First Instance, had become final in the absence of an appeal.<\/p>\n 21.\u00a0\u00a0On 5 May 2006 the applicant lodged an appeal with the Bak\u0131rk\u00f6y Criminal Court of First Instance, challenging the judgment in question on the grounds that it had been delivered in his absence and the accusations against him were ill-founded. He emphasised that he had not received any notice of the criminal proceedings or the judgment, not even when he had gone to the Bak\u0131rk\u00f6y public prosecutor\u2019s office three months prior to the delivery of the impugned judgment to obtain his criminal record details for an unrelated matter. He added that the claimant in the criminal proceedings, \u0130.\u00d6., was his former girlfriend, and that he had given her a blank cheque as a guarantee that he would discharge their joint debt to a bank. They had in fact signed an official document on 12 March 1998 in the presence of a lawyer confirming that \u0130.\u00d6. would only be entitled to cash this cheque if the applicant failed to discharge their joint debt to the bank. Upon settling the debt with the bank, the applicant had requested that \u0130.\u00d6. return the blank cheque to him, but \u0130.\u00d6. had failed to do so, alleging that she had lost it. He had accordingly reported the cheque as missing to the bank, and had asked to be notified in the event of any attempts to cash it. On 27 April 1999, very shortly after his move to a new address, his former girlfriend had apparently attempted to cash the cheque, and when the cheque had not cleared, had brought a criminal complaint against him. Despite his instructions, he had not been contacted by his bank when the cheque in question had been deposited by \u0130.\u00d6., nor had he been advised that the cheque had bounced.<\/p>\n 22.\u00a0\u00a0On the same day the Bak\u0131rk\u00f6y Civil Court of First Instance issued a summary judgment dismissing the applicant\u2019s appeal as lodged out of time. It held that the judgment of 13 October 2004 had been duly served on him on 30 October 2004 in accordance with section 35 of Law no. 7201, and the appeal should therefore have been submitted by 8 November 2004.<\/p>\n 23.\u00a0\u00a0On 22 May 2006 the applicant appealed against the summary judgment, reiterating the arguments he had previously submitted to the Bak\u0131rk\u00f6y Civil Court of First Instance. He emphasised that, although his accurate address details could easily have been obtained from the mayor of the neighbourhood, the judgment of October 2004 had been served at the address which his company had moved out of on 15 April 1999.In his absence, it had apparently been posted on the door of the building. He therefore requested that the judgment which had been delivered in his absence be quashed or rectified.<\/p>\n 24.\u00a0\u00a0On 21 September 2006 the Principal Public Prosecutor at the Court of Cassation delivered her opinion on the applicant\u2019s appeal, where she requested that the first-instance court\u2019s judgment of 5 May 2006 be quashed on account of the unlawful service of the initial judgment rendered in his absence.<\/p>\n 25.\u00a0\u00a0On 2 October 2006 the Court of Cassation upheld the lower court\u2019s decision, holding that the judgment in question had been duly served on the applicant in accordance with section 35 of Law no. 7201 on Notifications.<\/p>\n 26.\u00a0\u00a0On 8 November 2006, in accordance with Article 308 of the Code of Criminal Procedure, the applicant requested that the Principal Public Prosecutor at the Court of Cassation lodge an application to have the Court of Cassation\u2019s decision set aside.<\/p>\n 27.\u00a0\u00a0It appears that the applicant was imprisoned on 24 November 2006 on account of his failure to pay the fine of TRY 500 imposed by the Bak\u0131rk\u00f6y Criminal Court of First Instance on 13 October 2004.<\/p>\n 28.\u00a0\u00a0On 26 November 2006 the applicant was conditionally released.<\/p>\n 29.\u00a0\u00a0On 1 December 2008 the Principal Public Prosecutor at the Court of Cassation rejected the applicant\u2019s application under Article 308 of the Code of Criminal Procedure, maintaining that the applicant\u2019s arguments had already been examined by the Court of Cassation in its decision of 2\u00a0October 2006.<\/p>\n II.\u00a0\u00a0RELEVANT DOMESTIC LAW<\/p>\n 30.\u00a0\u00a0Section 16(1) of the Law on the Protection of Payees and the Regulation of Payments by Cheque (Law no.3167),entitled \u201cUncovered cheques\u201d,which was in force at the material time, read as follows:<\/p>\n \u201cAccount holders or their authorised agents who issue a cheque that is not paid in full or in part, owing to [there being] insufficient funds in the bank account when [the chequeis]presented to the bank …within the periodspecified in Article 4 [when the payee is officially able to cash the cheque], shall be sentenced to a …fine (a\u011f\u0131r para cezas\u0131) equalto the amount on the cheque, without prejudice to other acts proscribed by the [relevant] legislation.\u201d<\/p>\n 31.\u00a0\u00a0Section 35 of the Notification Act (Law no.7201), as in force at the material time, provided:<\/p>\n \u201cWhere a person who has been served with a document personally or at his or her home address in accordance with legally established procedures changes address, he or she must without delay communicate the new address to the judicial authority from which the notification emanated. In such cases,[service of] all subsequent notifications must be effected at the new address.<\/p>\n Where [this] person has failed to communicate his or her new address and the notifying officer has been unable to ascertain this new address, a copy of the document to be served shall be posted at the entrance to the building corresponding to the old address; the date on which the copy is posted shall be treated as the date of notification.<\/p>\n [Service of] subsequent notifications effected in this way at the old address shall be deemed to have been effected vis-\u00e0-vis the addressee.<\/p>\n Even if no prior notification has been given [in relation to those addresses], the provisions of this section shall also apply in respect of addresses stated on contracts entered into by parties who have accepted signing [those contracts] before the official authorities, andlastaddresses that are given to public institutions and organisations, to professional bodies with the status of public institutions, to commercial registries, and to registries of tradesmen and craftsmen.\u201d<\/p>\n 32.\u00a0\u00a0Article 223 of the former Code of Criminal Procedure (Law no.\u00a01412), applicable at the time of the applicant\u2019s trial in absentia, read as follows:<\/p>\n \u201cIn the event an accused does not appear before a court, the trial shall not commence, save for in the case of the exceptions provided for under this law.<\/p>\n If no valid reason for [an accused\u2019s] non-appearance is established, an order to compel the accused to attend the hearing to give evidence, or a detention order [in respect of accused], will be issued.<\/p>\n If an accused absconds subsequent to an arrest warrant being issued in his or her presence, and in the event he or she has already been heard and his or her presence has been deemed not necessary by the court, the case may be concluded in absentia.<\/p>\n If it is considered that a decision other than a conviction should be rendered in respect of an accused on the basis of evidence collected, the case may be concluded in absentia even if an accused has not been heard.\u201d<\/p>\n 33.\u00a0\u00a0Article 225 \u00a7 1 of the former Code of Criminal Procedure, applicable at the time of the applicant\u2019s trial in absentia, read as follows:<\/p>\n \u201cA hearing may be held in the absence of an accused in the event that the offence that is the subject of the prosecution is punishable by a fine, light imprisonment (hafif hapis), confiscation, or a combination of those [punishments]. In such situations, a summons sent to an accused shall include the fact that a hearing may take place in his absence.\u201d<\/p>\n 34.\u00a0\u00a0Article 421 of the former Code of Criminal Procedure read as follows:<\/p>\n Matters concerning heavy penalties within the meaning of this law<\/p>\n Article 421<\/p>\n \u201cIn accordance with this Code, matters concerning heavy penalties mean cases concerning offences punishable by the death penalty, heavy imprisonment (a\u011f\u0131r hapis) and imprisonment for more than ten years.\u201d<\/p>\n 35.\u00a0\u00a0On 1 June 2005 the new Code of Criminal Procedure (Law no.\u00a05271) entered into force, repealing the former Code of Criminal Procedure. However, in accordance with Law no. 5320 on the entry into force and application of the [new] Code of Criminal Procedure, dated 31 March 2005, Articles\u00a0305\u2011326 of the former Code of Criminal Procedure on the procedure for appeals to the Court of Cassation were to remain in force until the regional appeal courts began operating. Article 307, Article\u00a0308, Article\u00a0315, Article 317,and the relevant parts of Article318 of the former Code of Criminal Procedure, in force at the material time, read as follows:<\/p>\n Grounds for appeal on points of law<\/p>\n Article 307<\/p>\n \u201cAn appeal on points of law may not concern any issue other than the allegation of unlawfulness of the impugned judgment.<\/p>\n Non-application or erroneous application of a legal rule shall constitute unlawfulness.\u201d<\/p>\n Instances of unlawfulness<\/p>\n Article 308<\/p>\n Unlawfulness is deemed to be manifest in the following cases:<\/p>\n 1.\u00a0\u00a0Where the court is not established in accordance with the law;<\/p>\n 2.\u00a0\u00a0Where a judge who has been involved in the decision-making process was barred by statute from participating;<\/p>\n 3.\u00a0\u00a0Where a judge, against whom a motion to disqualify him on the basis of a valid doubt submitted and accepted, or rejected unlawfully, has been involved in the decision-making process;<\/p>\n 4.\u00a0\u00a0Where a court considers that it has jurisdiction over a case in contravention of the legislation;<\/p>\n 5.\u00a0\u00a0Where a hearing has been held in the absence of the public prosecutor or other persons whose presence during the hearings is required by law;<\/p>\n 6.\u00a0\u00a0Breach of the requirement to render a public judgment in cases where oral hearings are held;<\/p>\n 7.\u00a0\u00a0Where the judgment does not contain reasoning;<\/p>\n 8.\u00a0\u00a0Where the judgment has restricted the defence rights as regards crucial issues in the judgment.\u201d<\/p>\n Dismissal of an appeal owing to inadmissibility by the court which delivered the judgment<\/p>\n Article 315<\/p>\n \u201cIn the event that an appeal is lodged after the expiry of a time-limit, or is lodged in respect of a judgment that is not open to appeal, or an appellant does not have the right to appeal, the court whose judgment has been appealed against dismisses that appeal.<\/p>\n An appellant may, within one week of being served with that decision, ask the Court of Cassation to deliver a decision on that matter. In that case, the file will be sent to the Court of Cassation. However, suspension of the enforcement of a sentence shall not be granted on that basis.\u201d<\/p>\n Dismissal of an appeal by the Court of Cassation<\/p>\n Article 317<\/p>\n \u201cIn the event of an appeal being made orally or in writing:<\/p>\n In the event that the Court of Cassation finds that an appeal has not been made, orally or in writing, within the time-limit, or that a judgment is not open to appeal, or that an appellant has no right to appeal, it shall dismiss that request; otherwise, it will pursue its examination.\u201d<\/p>\n Hearings [before the Court of Cassation] in the context of examining offences punishable by heavy penalties<\/p>\n Article 318<\/p>\n \u201cThe Court of Cassation may, of its own motion or upon a request contained in an appeal, decide to hold a hearing when examining offences punishable by heavy penalties (a\u011f\u0131r cezaya m\u00fcteallik h\u00fck\u00fcmler). An accused or his council \u2013upon the latter\u2019s request\u2013 shall be informed of the date of the hearing.<\/p>\n …\u201d<\/p>\n 36.\u00a0\u00a0Article 40 of the new Code of Criminal Procedure, in force as of 1\u00a0June 2005, provides, in so far as relevant, as follows:<\/p>\n Restoration of the status quo ante (Eski hale getirme)<\/p>\n Article 40<\/p>\n \u201cA person who has failed to comply with a time-limit through no fault of his own may ask for restoration of the status quo ante.\u201d<\/p>\n 37.\u00a0\u00a0Article 299 of the new Code of Criminal Procedure, in force as of 1\u00a0June 2005, provides, in so far as relevant as follows:<\/p>\n \u201cThe Court of Cassation shall, of its own motion or upon a request contained in an appeal lodged by a defendant or an intervening party, decide to hold a hearing when examining judgments that concern ten years of imprisonment or more.\u201d<\/p>\n 38.\u00a0\u00a0Article 311 \u00a7 1 of the new Code of Criminal Procedure, entitled \u201cGrounds for reopening criminal proceedings in favour of convicted persons\u201d, reads as follows:<\/p>\n \u201cCriminal proceedings terminated by a final judgment shall be re-examined by way of reopening the proceedings in favour of convicted persons if:<\/p>\n a)\u00a0\u00a0it is understood that a document used during the trial that affected the judgment was false;<\/p>\n b)\u00a0\u00a0it is understood that a witness or an expert who testified under oath gave false evidence or voted against the convicted person in a way that affected the judgment;<\/p>\n c)\u00a0\u00a0one of the judges who [was on the bench that] convicted the person was at fault in relation to the performance of his or her duties to an extent that necessitated his or her criminal prosecution or conviction, save for in cases where the fault was attributable to the convicted person;<\/p>\n d)\u00a0\u00a0a civil court judgment that was relied on as the basis for the criminal conviction has been rendered null and void by another final judgment;<\/p>\n e)\u00a0\u00a0new facts or new evidence are presented which either alone or in relation to the previous evidence may lead to the acquittal of the person who was convicted, or to his conviction on the basis of a more lenient criminal-law provision;<\/p>\n f)\u00a0\u00a0the European Court of Human Rights finds a violation of a right protected by the Convention and its Protocols and establishes that the criminal conviction is based on that violation. In that case, a request to reopen the proceedings may be made within one year of the date of the judgment of the European Court of Human Rights becoming final.<\/p>\n …\u201d<\/p>\n THE LAW<\/strong><\/p>\n I.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 6 \u00a7 1 OF THE CONVENTION<\/p>\n 39.\u00a0\u00a0The applicant complained that hehad been denied a fair hearing, in that he had been tried and convicted in absentia and had been denied a fresh determinationof his case. He referred to Article 6 of the Convention, the relevant parts of which read:<\/p>\n \u201c1.\u00a0\u00a0In the determination of … any criminal charge against him, everyone is entitled to a fair … hearing by [a] … tribunal …<\/p>\n 40.\u00a0\u00a0The Government contested that argument.<\/p>\n A.\u00a0\u00a0Admissibility<\/strong><\/p>\n 41.\u00a0\u00a0The Court notes that the application is not manifestly ill\u2011founded within the meaning of Article 35 \u00a7 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.<\/p>\n B.\u00a0\u00a0Merits<\/strong><\/p>\n 1.\u00a0\u00a0The parties\u2019 submissions<\/em><\/p>\n (a)\u00a0\u00a0The applicant<\/p>\n 42.\u00a0\u00a0The applicant firstly pointed out that the Government had not disputed the fact that he had been tried and convicted in absentia, or that he had had no knowledge of the criminal proceedings. He further submitted that the trial court had not shown the requisite due diligence in relation to finding his address during the trial,which had lasted approximately five years. It was also not clear what steps had been taken by the police to find his address when they had been instructed to do so by the trial court. In that connection, he referred to the fact that the trial court had neither requested information from the bank nor consulted the tax offices for his address. In the applicant\u2019s opinion, the trial court had simply not taken any steps to find his address after 29 November 1999.<\/p>\n 43.\u00a0\u00a0Furthermore, the applicant maintained that hehad informed the relevant authorities of his change of home address, as other courts and prosecution offices had been able to notify him of events relating to different criminal proceedings. To support that claim, hesubmitted the decisions of the Ba\u011fc\u0131lar Criminal Court of First Instance and the K\u00fc\u00e7\u00fck\u00e7ekmece public prosecutor\u2019s officegiven in 2001, while the criminal proceedings against him in the instant case had been ongoing.<\/p>\n 44.\u00a0\u00a0According to the applicant, since he had neither run away nor waived his right to appear, he should have had a fresh determination of his case at domestic level. However, all his applications had been rejected on the grounds that the trial court\u2019s decision had been served on him in accordance with section 35 of the Notifications Act. He took the view that, even assuming that he had been legally notified of the trial court\u2019s decision, that fact alone was not capable of preventing a violation of Article 6 in the instant case, given the authorities\u2019 failure to show the requisite due diligence in locating him.<\/p>\n (b)\u00a0\u00a0The Government<\/p>\n 45.\u00a0\u00a0The Government argued that the trial court had acted diligently and had tried to find the applicant\u2019s actual address with a view to informing him of the date of the hearing. In that connection, the trial court had sought assistance from the public prosecutor\u2019s office, which in turnhad asked the police and the mayor of the neighbourhood to take the necessary steps. Moreover, the trial court had also ordered the applicant\u2019s detention in absentia with a view to bringing him before the court to give evidence. However, the trial court had not been able to find the applicant\u2019s actual address, and had decided to serve its decisionat the address indicated on the cheque, in accordance with section 35 in fine of the Notifications Act. Moreover, the applicant was a merchant, and he was supposed to run his business with due diligence, such as by providing the relevant institutions \u2013for example, the mayor of the neighbourhood \u2013 with his new address.In the Government\u2019s view, had the trial court sought the applicant\u2019s address indefinitely, that would have paralysed the conduct of the criminal proceedings and led to the time-limit for the prosecution expiring or a miscarriage of justice.<\/p>\n 46.\u00a0\u00a0As concerns the question of whether the applicant was provided with a fresh determination, the Government submitted that he had been legally notified of the trial court\u2019s judgment and that his appeal had been rejected by the Court of Cassation as a result of being lodged out of time. Lastly, the applicant had waived his right to appear in person, since he had failed to ask the Court of Cassation to hold a hearing in his case.<\/p>\n 2.\u00a0\u00a0The Court\u2019s Assessment<\/em><\/p>\n (a)\u00a0\u00a0General principles<\/p>\n 47.\u00a0\u00a0The general principles with regard to trials in absentiacan be found inSejdovic v. Italy ([GC], no. 56581\/00, \u00a7\u00a7 81-88, ECHR 2006\u2011II; see also Sanader v. Croatia, no. 66408\/12, \u00a7\u00a750-53 and 67-74, 12 February 2015 for a recapitulation of the general principles and the relevant international material on the subject).<\/p>\n (b)\u00a0\u00a0Application to the present case<\/p>\n 48.\u00a0\u00a0The Court notesat the outset that, at the material time, trial in absentia was only possible under Turkish criminal law in respect of an offence punishable by a fine,\u201clight imprisonment (hafif hapis cezas\u0131)\u201d, confiscation, or a combination of those punishments (Article 225 of the former Code of Criminal Procedure). In the present case, the offence of which the applicant was accused \u2013 namely that of issuing an uncovered cheque, an offence under the first sentence of Section 16 of Law no.\u00a03167, in force at the material time \u2013 was punishable by a fine.Thus,it was within the scope of Article 225 of the former Code of Criminal Procedure.Reiterating that the impossibility of holding a trial by default may paralyse the conduct of criminal proceedings, in that it may lead, for example, to the dispersal of evidence, the expiry of the time-limit for a prosecution, or a miscarriage of justice (Colozza v.Italy, 12 February 1985, \u00a729, Series\u00a0A no.\u00a089),the Court considers that the applicant\u2019s trial in absentia had a legal basis under the Turkish law in force at the material time.<\/p>\n 49.\u00a0\u00a0The Court further notes thatthe first question to be answered is whether the applicant could be said to have expressly or through his own conduct \u2013 for instance by attempting to evade justice \u2013 waived his right to appear and defend himself. The starting point of that assessment will inevitably focus on the question of whether the applicant had knowledge of the criminal proceedings against him,without which no valid waiver can take place (see Dilipak and Karakayav. Turkey, nos.\u00a07942\/05 and\u00a024838\/05, \u00a7\u00a087, 4March 2014, and compare Ait Abbou v.\u00a0France, no.\u00a044921\/13, \u00a7\u00a7\u00a063\u201165, 2 February 2017). In that connection, the Court notes that it does not have in its possession any evidence showing that the applicant either received the summonses to appear before the trial court or was served with the indictment or the final decision convicting him (see Abdelali v. France, no.\u00a043353\/07, \u00a752, 11 October 2012). Moreover, the Government did not dispute that before the Court (see Huzuneanu v.\u00a0Italy, no.\u00a036043\/08, \u00a7\u00a042, 1\u00a0September 2016). In such circumstances, it cannot be said that the applicant expressly and knowingly waived his right to appear and defend himself.<\/p>\n 50.\u00a0\u00a0The Court will now examine whether the applicant was sufficiently aware of the criminal proceedings, with a view to deciding whether he tacitly waived his right to appear and defend himself in any other way, for example by intending to escape trial. In that connection, it notes once again that the Government have neither claimed nor submitted any document that could arguablyindicate that he was aware or had sufficient knowledge of the trial. Instead, the Government\u2019s submissions in the instant case were focused on the fact that the trial court had acted diligently with regard to locating the applicant andhad complied with the provisions of the domestic law then in force concerning the service of official documents. Moreover, the Government also argued that the applicant\u2019s absence at the trial had been the consequence of his failure to notify the authorities of his change of address.<\/p>\n 51.\u00a0\u00a0As such, the Court should ascertain whether the trial court could be said to have shown sufficient diligence in its efforts to locate the applicant and to inform him about the criminal proceedings.In that connection, it makes the following observations. Firstly, although the applicant had issued the disputed cheque in his capacity as president of the executive board of his company, he was tried as an individual before the Bak\u0131rk\u00f6y Criminal Court of First Instance. However, that court first sent a summons together with the indictment to the address of the company indicated by the applicant on the cheque.That summons was returned on the grounds that the company had left the address, leaving \u201cPK. [post box] 5 Bak\u0131rk\u00f6y\u201d as the new address. At the same time, the trial court sought assistance from the prosecutor\u2019s office, which in turn asked the police and the relevant district mayor to locate the applicant. They concluded that the applicant had abandoned the address written on the cheque. Thereafter, the trial court issued adetention order in absentiain respect of the applicant under Article\u00a0223 of the former Code of Criminal Procedure, with a view to bringing him before the court, and waited from 14 February 2000 to 13\u00a0October 2004 for that warrant to be executed. Lastly, the trial court decided to serve the summons at the address indicated on the cheque, pursuant to section 35(4) of the Law of Notifications then in force.<\/p>\n 52.\u00a0\u00a0The Court takes note of the trial court\u2019s above-mentioned efforts. However, those efforts were limited to the address of the company indicated on the cheque.Significantly, the trial court never attempted to serve the indictment or the summons or its decisionat the applicant\u2019s place of residence, despite the fact that he was tried before that court as an individual.More importantly, the Ba\u011fc\u0131lar Criminal Court of First Instance, which is also situated in Istanbul, was able to serve a summons at the applicant\u2019s home address on 11 October 2001,in relation to criminal proceedings in which he was a complainant (for an almost identical situation, seeColozza, cited above, \u00a728).Moreover, the K\u00fc\u00e7\u00fck\u00e7ekmece public prosecutor\u2019s office, which is also situated in Istanbul, indicated the applicant\u2019s home address in its decision not to prosecute dated 16 July 2001,a decision made within the context of other criminal proceedings.At this point, the Court finds it important to reiterate that the policewere also able to locate and arrest the applicant at his home address in 2006.<\/p>\n 53.\u00a0\u00a0Having regard to the foregoing, and bearing in mind the prominent place which the right to a fair trial holds in a democratic society within the meaning of the Convention (see Hokkeling v. the Netherlands, no.\u00a030749\/12, \u00a7\u00a062, 14 February 2017), the Court is unable to subscribe to the Government\u2019s argument that the trial court showed the requisite due diligence in its efforts to locate the applicant (see, mutatis mutandis, Davran v.\u00a0Turkey, no. 18342\/03, \u00a745, 3 November 2009, and B\u00fcy\u00fckda\u011f v.\u00a0Turkey, no.\u00a028340\/95, \u00a767 in fine, 21 December 2000).In such a case, the submission that the national courts served the decision in accordance with the domestic legal provisions, a fact that is disputed between the parties in the present case, is not sufficient of itself to relieve the State of its obligations under Article 6 of the Convention.<\/p>\n 54.\u00a0\u00a0Accordingly, the Court considers that the applicant had no knowledge of the proceedings, and he did not waive his right to appear and defend himself or attempt to evade justice. Thus, it remains to be determined whether the domestic legislation afforded him, with sufficient certainty, the opportunity to appear at a new trial (see Sejdovic, cited above, \u00a7\u00a0101 in fine, and alsoJones v. the United Kingdom (dec.), no.\u00a030900\/02, 9\u00a0September 2003).<\/p>\n 55.\u00a0\u00a0In that connection, the Court notes that the Government submitted no argumentas to whether Turkish law, at the material time, offered any legal remedies providing for the rehearing of cases in which peoplehad been tried and convicted in absentia, like the applicant in the instant case. Instead, the Government maintained that the applicant had been duly served with the decision and that he had failed to ask the Court of Cassation to hold a hearing, andconsequently he shouldbe considered to have waived that right.<\/p>\n 56.\u00a0\u00a0The Court further observes that the applicant attempted to use the following legal remedies to achieve that aim.He lodged an appeal on 5\u00a0May 2006 against the decision of the Bak\u0131rk\u00f6y Criminal Court of First Instance. However, that court dismissed his appeal as being lodged outside the time-limit for appeals (Article 315 of the former Code of Criminal Procedure). On 22\u00a0May 2006 the applicant lodged an appeal against that decision. On 2\u00a0October 2006 the Court of Cassation also rejected that appeal, maintaining that the trial court\u2019s decision had been lawfully served on the applicant under section 35 of the Notification Act. On 8November 2006, in accordance with Article 308 of the Code of Criminal Procedure, the applicant requested that the Principal Public Prosecutor at the Court of Cassation to lodge an application to have the Court of Cassation\u2019s decision set aside. On 1 December 2008 his application was rejected.<\/p>\n 57.\u00a0\u00a0In so far as the Government argued that the applicant had implicitly waived his right to appear by failing to ask the Court of Cassation to hold a hearing in his appeal, the Court notes that Article 318 of the former Code of Criminal Code provides for the possibility of a hearing only in cases where an offence is punishable by the death penalty, \u201cheavy imprisonment\u201d or imprisonment for more than ten years. However, the applicant was tried for issuing an uncovered cheque and subsequently sentenced to a fine. In other words, there was no legal possibility to hold a hearing before the Court of Cassation in the applicant\u2019s case, since the offence with which he was charged did not fall within the scope of Article 318. Given that the applicant had no right to a hearing before the Court of Cassation, he could not be said to have waived that right. The Government\u2019s argument must therefore be rejected.<\/p>\n 58.\u00a0\u00a0Moving on to the trial court\u2019s examination following the applicant\u2019s late appeal, the Court observes that the appeal was rejected as being lodged outside the time-limit for appeals set out in Article 310 of the Code of Criminal Procedure, in force at the material time. The trial court relied on the fact that the decision had been served on the applicant in accordance with section 35 in fine of the Notifications Act, but he had failed to lodge the appeal on time.<\/p>\n 59.\u00a0\u00a0As for the Court of Cassation, the Court notes that that court also rejected the applicant\u2019s appeal, stating that the decision had been legally served on him and that the trial court\u2019s decision to dismiss his appeal had been correct.<\/p>\n 60.\u00a0\u00a0As regards the applicant\u2019s attempt to use an extraordinary remedy, namely his application under Article 308 of the new Code of Criminal Procedure,a remedy formerly known as \u201crectification of judgment\u201d, the Court reiterates that it has already held that the use of that procedure was at the discretion of the Principal Public Prosecutor at the Court of Cassation, and was therefore not a remedy directly accessible to individuals (see Ak\u00e7i\u00e7ek v. Turkey (dec.) no. 40965\/10, 18 October 2011). In any event, that application was dismissed by the Principal Public Prosecutor\u2019s Office in the present case.<\/p>\n 61.\u00a0\u00a0The Court reiterates that,in accordance with its case-law, the duty to guarantee a criminal defendant\u2019s right to be present in the courtroom \u2013 either during the original proceedings or in a retrial\u2013 ranks as one of the essential requirements of Article 6 and is deeply entrenched in that provision. Therefore, criminal proceedings which have been held in absentia and the reopening of which has been subsequently refused, without any indication that the accused has waived his or her right to be present during the trial, may fairly be described as \u201cmanifestly contrary to the provisions of Article\u00a06 or the principles embodied therein\u201d (see Stoichkov v.\u00a0Bulgaria, no.\u00a09808\/02, \u00a7\u00a056, 24 March 2005).<\/p>\n 62.\u00a0\u00a0In the instant case, the Court has already found that the trial courtfailed to show the requisite due diligence in its efforts to locate the applicant. Nevertheless, both the trial court and the Court of Cassation confined their examinationto just that point and dismissed the applicant\u2019s application, stating that the decision had been lawfully served on him, that is to say in accordance with the Notifications Act (see, mutatis mutandis, Kounov v. Bulgaria, no. 24379\/02, \u00a7 52 in fine,23 May 2006). They did not examine whether the applicant had in fact been notified or had unequivocally waived his right to appear and defend himself. Thus, the applicant\u2019s applications for a fresh factual and legal determination of his case were rejected,in the absence of any indication that he had waived his right to be present during the trial, a situation previously described by the Court in Sejdovic(cited above, \u00a784) as a \u201cflagrant denial of justice\u201d.<\/p>\n 63.\u00a0\u00a0In view of the above, the Court considers that the applicant, who was tried and convicted in absentia and has not been shown to have sought to escape trial or to have unequivocally waived his right to appear in court, was not afforded the opportunity to obtain a fresh determination of the merits of the charges against him by a court providing him with all the guarantees of a fair trial afforded by Article 6 of the Convention (see Sanader, cited above, \u00a795).<\/p>\n 64.\u00a0\u00a0There has therefore been a violation of Article 6 \u00a7 1 of the Convention in the instant case.<\/p>\n II.\u00a0\u00a0APPLICATION OF ARTICLE 41 OF THE CONVENTION<\/p>\n 65.\u00a0\u00a0Article 41of the Convention provides:<\/p>\n \u201cIf 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.\u201d<\/p>\n A.\u00a0\u00a0Damage<\/strong><\/p>\n 66.\u00a0\u00a0The applicant claimed 86,400Turkish liras (TRY)and TRY\u00a0100,000 in respect of pecuniary and non-pecuniary damage respectively.In that connection, he submitted that his trial in absentia and subsequent conviction had marked the end of his commercial life, since banks had been notified of the final judgmentand hadin turn refused to grant him loans or issue him with chequebooks. That was also the reason why, at the time of his arrest by the police, he had not been able to pay an amount as little as TRY\u00a0500, and why that finehad been converted into imprisonment (tazyik hapsi).Moreover, he had no longer been able to fulfil the condition of having no criminal record in order to continue working as a translator.His job applications had also been rejected due to his criminal record. According to the applicant\u2019s submissions, his conviction was deleted from his criminal record on 30 October 2013. As a result, in respect of pecuniary damage, he claimed the minimum wage \u2013TRY 800 \u2013 for each of the months between the date he had lodged his application and 30 October 2013.Lastly, in relation to determining any amount due in respect of non-pecuniary damage, the applicant asked the Court to take into consideration the fact that he had been deprived of his freedom for three days.<\/p>\n 67.\u00a0\u00a0The Government argued that the State could not be required to pay damages in respect of loss for which it was not responsible.<\/p>\n 68.\u00a0\u00a0As for pecuniary damage, the Court notes that it cannot speculate as to what the outcome of the trial would have been had it been in conformity with Article 6, and therefore an award of just satisfaction can only be based on the fact that the applicant did not have the benefit of the guarantees of that Article. It therefore makes no award in respect of pecuniary damage, since it is not possible to anticipate what the outcome of the trial would have been had it been conducted in the applicant\u2019s presence (compare and contrast Barber\u00e0, Messegu\u00e9 and Jabardo v. Spain (Article 50), 13\u00a0June 1994, \u00a7 16-20, Series A no. 285\u2011C, and Party for a Democratic Society (DTP) and Others v.\u00a0Turkey, nos.\u00a03840\/10 and 6 others, \u00a7\u00a7\u00a0133\u2011136, 12\u00a0January 2016).<\/p>\n 69.\u00a0\u00a0As for non-pecuniary damage, the Court refers to its settled case-law to the effect that, in the event of a violation of Article 6 \u00a7 1 of the Convention, the applicant should, in so far as possible, be put in the position that he would have been in had the requirements of that provision not been disregarded (see Somogyi v. Italy, no. 67972\/01, \u00a786, ECHR 2004\u2011IV). It further considers that where, as in the instant case, an individual has been convicted following proceedings that have entailed breaches of the requirements of Article 6 of the Convention, a retrial or the reopening of the case, if requested, represents in principle an appropriate way of redressing the violation (see Moreira Ferreira v.Portugal (no. 2) [GC], no.\u00a019867\/12, \u00a7\u00a049, ECHR 2017 (extracts), and Sejdovic, cited above, \u00a7126). In that connection, the Court also points out that Article 311 of the Code of Criminal Procedure allows for the reopening of the domestic proceedings in the event that the Court finds a violation of the Convention. It further considersthat the applicant must have sustained non\u2011pecuniary damage which cannot be sufficiently compensated for by the finding of a violation. Ruling on an equitable basis, it awards the applicant 5,000 euros (EUR) in respect of non-pecuniary damage, plus any tax that may be chargeable on this amount.<\/p>\n B.\u00a0\u00a0Costs and expenses<\/strong><\/p>\n 70.\u00a0\u00a0The applicant also claimed EUR 2,000in respect of his lawyers\u2019 fees \u2013 an amount corresponding to thirty-four hours of legal work consisting of meetings with the applicant, the examination of his case, and the preparation of the observations before the Court. He further requested EUR 200 for costs and expenses incurred before the domestic courts.In support of those claims, the applicant submitted a legal fee agreement, the Bar Association\u2019s scale of fees, and a breakdown of the amount of time spent by his lawyers on the case.<\/p>\n 71.\u00a0\u00a0The Government stated that the applicant\u2019s lawyers had only taken part in the preparation of the observations and just satisfaction claims, and argued that the amount of the lawyers\u2019 fees did not reflect the truth, as it was high in comparison to similar proceedings. They further maintained that the applicant had failed to submit any proof of payment except in relation to the postal expenses. Accordingly, they asked the Court to dismiss the applicant\u2019s claims.<\/p>\n 72.\u00a0\u00a0According to the Court\u2019s 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 are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the full sum claimed, covering costs under all heads.<\/p>\n C.\u00a0\u00a0Default interest<\/strong><\/p>\n 73.\u00a0\u00a0The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.<\/p>\n III.\u00a0\u00a0APPLICATION OF ARTICLE 46 OF THE CONVENTION<\/p>\n 74.\u00a0\u00a0Article 46 of the Convention provides:<\/p>\n Article 46<\/p>\n \u201c1.\u00a0\u00a0The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.<\/p>\n 2.\u00a0\u00a0The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.\u201d<\/p>\n 75.\u00a0\u00a0The applicant submitted that the violation in the instant case stemmed from a structural problem in Turkey, since Turkish law did not provide for an effective remedy either allowing for appeals or reopening proceedings conducted in the absence of an accused who had not had knowledge of those proceedings or waived his right to appear in person or escaped justice. Hence, under Article 46 of the Convention, he asked the Court to indicate to the respondent Government general measures that could be taken to put an end to the situation complained of.<\/p>\n 76.\u00a0\u00a0The Government did not make any submissions on this issue.<\/p>\n 77.\u00a0\u00a0In the particular circumstances of the present case and bearing in mind that a retrial or the reopening of the case, if requested, represents in principle an appropriate way of redressing the violation in the instant case, the Court does not consider it necessary to indicate general measures that the State ought to adopt for the execution of the present judgment.<\/p>\n FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/strong><\/p>\n 1.\u00a0\u00a0Declaresthe application admissible;<\/p>\n 2.\u00a0\u00a0Holdsthat there has been a violation of Article 6 \u00a7 1 of the Convention;<\/p>\n 3.\u00a0\u00a0Holds, unanimously,<\/p>\n (a)\u00a0\u00a0that the respondent State is to pay the applicant, within three monthsfrom the date on which the judgment becomes final in accordance with Article\u00a044\u00a0\u00a7\u00a02 of the Convention, the following amounts,to be converted into the currency of the respondent State at the rate applicable at the date of settlement:<\/p>\n (i)\u00a0\u00a0EUR 5,000 (five thousand euros), plus any tax that may be chargeable,in respect of non-pecuniary damage;<\/p>\n (ii)\u00a0\u00a0EUR 2,200 (two thousandtwo hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;<\/p>\n (b)\u00a0\u00a0that 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;<\/p>\n 4.\u00a0\u00a0Dismissesthe remainder of the applicant\u2019s claim for just satisfaction.<\/p>\n Done in English, and notified in writing on 12 June 2018, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.<\/p>\n Stanley Naismith\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Robert Spano _______________<\/p>\n [1].\u00a0\u00a0On 1 January 2005 the Turkish lira (TRY) entered into circulation, replacing the former Turkish lira (TRL). TRY 1 = TRL 1,000,000.
\nLedi Bianku,
\nI\u015f\u0131l Karaka\u015f,
\nNeboj\u0161a Vu\u010dini\u0107,
\nValeriu Gri\u0163co,
\nJon Fridrik Kj\u00f8lbro,
\nSt\u00e9phanie Mourou-Vikstr\u00f6m, judges,
\nand Stanley Naismith, Section Registrar,<\/p>\n
\nRegistrar\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n
\n[2].\u00a0\u00a0The gross minimum wage at the time of the delivery of the judgment was TRY\u00a0444.15 per month.<\/p>\n