SECOND SECTION
\nCASE OF SANCAKLI v. TURKEY
\n(Application no. 1385\/07)<\/p>\n
JUDGMENT
\nSTRASBOURG
\n15 May 2018<\/p>\n
FINAL
\n15\/08\/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 Sancakl\u0131 v. Turkey,<\/strong><\/p>\n The European Court of Human Rights (Second Section), sitting as a Chamber composed of:<\/p>\n Paul Lemmens, President, Having deliberated in private on 3 April 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. 1385\/07) 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\u00a0R\u0131fat\u00a0Sancakl\u0131 (\u201cthe applicant\u201d), on 29 December 2006.<\/p>\n 2.\u00a0\u00a0The applicant was represented by Mr\u00a0\u0130.\u00a0Mende\u015fa\u011fu, a lawyer practising in Istanbul. The Turkish Government (\u201cthe Government\u201d) were represented by their Agent.<\/p>\n 3.\u00a0\u00a0The applicant alleged that he had not had a fair trial in that the domestic courts had not held a hearing during the criminal proceedings against him, which resultedin his being ordered to pay an administrative fine.<\/p>\n 4.\u00a0\u00a0On 14 October 2009 the application was communicated to the Government.<\/p>\n THE FACTS<\/strong><\/p>\n I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE<\/p>\n 5.\u00a0\u00a0The applicant was born in 1955 and lives in Istanbul.<\/p>\n 6.\u00a0\u00a0On 2 October 2004 the B\u00fcy\u00fck\u00e7ekmece Magistrates\u2019 Court issued a search warrant allowing the gendarmerie to conduct searches of public places and suspected persons in a designated area.<\/p>\n 7.\u00a0\u00a0Late at night on the same day,the gendarmerie carried out a search at the Sancak Hotel, which is owned by the applicant.The records drawn up afterwards noted that during the course of the search, a certain M.\u015e. had approached the plain-clothes officers outside the hotel and told them that he had a girl inside. It was then established that M.\u015e. trafficked women. He and a woman in the hotel were both taken to the gendarmerie headquarters.<\/p>\n 8.\u00a0\u00a0The search records, which were prepared a few hours after the search and signed by the hotel\u2019s manager, showed that five women of foreign nationalities had been staying at the hotel with some men and that they had all been taken to the gendarmerie headquarters.<\/p>\n 9.\u00a0\u00a0On 3 October 2004 the gendarmerie questioned several men as suspects and five women as victims. They all confirmed that they had been staying at the hotel for prostitution purposes. Some of the women were asked whether they knew of any complicity between the traffickers and the management of Sancak Hotel, to which they responded in the negative.<\/p>\n 10.\u00a0\u00a0On the same day the applicant was arrested and taken into the custody of the gendarmerie on suspicion of facilitating prostitution.<\/p>\n 11.\u00a0\u00a0On 4 October 2004 the applicant gave statements to the gendarmerie. He denied having provided premises for prostitution. He argued that he did not allow procurers into his hotel and had never seen M.\u015e. before.<\/p>\n 12.\u00a0\u00a0On the same day, the gendarmerie also questioned the hotel\u2019s manager, who stated that both he and the applicant were very strict about keeping procurers out of their hotel.<\/p>\n 13.\u00a0\u00a0On 30 May 2005 the B\u00fcy\u00fck\u00e7ekmece Public Prosecutor issued an indictment against the applicant and three other persons. He accused them of failure to obey an order from an official authority under Article 526 \u00a7\u00a01 of the Criminal Code (Law no. 765) in force at the time, on the ground that they had provided premises for prostitution in their hotels.<\/p>\n 14.\u00a0\u00a0On 1 June 2005 the Misdemeanours Act (Law no. 5326) and the new Code of Criminal Procedure (Law no. 5271) entered into force.<\/p>\n 15.\u00a0\u00a0On 10 June 2005 the B\u00fcy\u00fck\u00e7ekmece Magistrates\u2019 Court assessed the case without holding a hearing. Establishing that the accused had provided premises for prostitution in their hotels, itheld that the applicant had failed to obey the orders of an official authority as charged andshould be punished accordingly. It then sentenced him to an administrative fine of 100\u00a0Turkish liras (TRY)[1] pursuant to Section 32 of the Misdemeanours Act (Law no.\u00a05326).<\/p>\n 16.\u00a0\u00a0The applicant objected to that decision, arguing that his defence rights had been restricted in that the court had sentenced him to the fine solely on the basis of the statements taken previously by the police, and without hearing him in person. He maintained that he accepted clients into his hotel in compliance withthe relevant regulation and that he could not be expected to refuse to offer accommodation to foreign nationals or to question their motives for staying there.<\/p>\n 17.\u00a0\u00a0On 3 February 2006 after examining the case on the basis of the case file, the Bak\u0131rk\u00f6y Assize Court upheld the decision of the Magistrates\u2019 Court.That decision was final.<\/p>\n 18.\u00a0\u00a0On 24 May 2006 an official letter was sent to the applicant. It was indicated on the envelope that the applicant was invited to a hearing concerning his case, which would be held on 10 July 2006. The envelope did not show any confirmation that the letter had been served on him.<\/p>\n 19.\u00a0\u00a0The applicant\u2019s lawyer stated that he hadreceived a copy of the final decisionat the registry of the B\u00fcy\u00fck\u00e7ekmece Magistrates\u2019 Court on 11\u00a0July 2006. In support of his claim, he submitted a copy of the Assize Court\u2019s decision, on which a lawyer working at his office had noted that he had been served with the copy in person on that date. That document was later stamped and certified as an authentic copy by the registry of the domestic court.<\/p>\n 20.\u00a0\u00a0Following communication of the present application, on 21\u00a0December 2009 a public prosecutor prepared an assessment report, summarising the events in the case. He concluded that the final decision had been served on the applicant on 26 May 2006.<\/p>\n 21.\u00a0\u00a0On 2 January 2014 both the applicant and the Government were asked under Rule 54 \u00a7 2 (c) of the Rules of Court to provide the Courtwith a document indicating the notification date of the final decision by 16\u00a0January 2014 at the latest. The parties did not respond to that request.<\/p>\n 22.\u00a0\u00a0On 3 November 2017 the Government were once again asked to provide documents regarding the commencement of the six-month time\u2011limit, in particular the content of the envelope from the B\u00fcy\u00fck\u00e7ekmece Magistrates\u2019 Court dated 24 May 2006 and the document in support of the public prosecutor\u2019s claim that the final decision had been served on the applicant on 26 May 2006. On 30November 2017 the Government informed the Court that they could not find the requested documents.<\/p>\n II.\u00a0\u00a0RELEVANT DOMESTIC LAW<\/p>\n 23.\u00a0\u00a0Article 526 \u00a7 1 of the former Criminal Code (Law no. 765), which regulated failure to obey an order from an official authority, read as follows:<\/p>\n \u201cA light term of prison sentence between three and six months and a fine … shall be imposed on those who fail to comply with a legal order or a measure which was issued by anofficial authority within the context of a judicial act or in order to protect public security, public order or general health, provided that the act in question does not constitute a separate offence.\u201d<\/p>\n 24.\u00a0\u00a0The relevant sections of the Misdemeanours Act (Law no.\u00a05326), which entered into force on 1 June 2005, read:<\/p>\n Section 24<\/p>\n \u201cWhen the prosecuted offence is found to be a misdemeanour, the relevant court shall deliver a decision imposing an administrative sanction.\u201d<\/p>\n Section 29<\/p>\n \u201c1.\u00a0\u00a0An objection to a decision issued by a magistrates\u2019 court may be lodged before the nearest assize court in accordance with the provisions of the Code of Criminal Procedure. The objection should be lodged within seven days of service of the decision on the parties;<\/p>\n 2.\u00a0\u00a0The assize court shall examine the objection on the basis of the case file (without holding a hearing);<\/p>\n …<\/p>\n 4.\u00a0\u00a0The final decision of the assize court shall be served on the parties…\u201d<\/p>\n Section 32<\/p>\n \u201c1.\u00a0\u00a0An administrative fine of 100 Turkish liras shall be imposed on those who fail to comply with a legal order which was issued by an official authority in order to protect public security, public order or general health. The imposition of this fine shall be decided by the official authority who issued the legal order.<\/p>\n …<\/p>\n 3.\u00a0\u00a0The reference made by other laws to Article 526 of the(former)Criminal Code (Law no. 765) shall be understood as a reference to this Section. \u201d<\/p>\n 25.\u00a0\u00a0The relevant articles of the Code of Criminal Procedure (Law no.\u00a05271), which also entered into force on 1 June 2005, read as follows:<\/p>\n Article 270<\/p>\n \u201cThe authority examining the objection may communicate it to the public prosecutor and the other party in order toobtain their written observations. The authority may conduct further investigation into the matter…\u201d<\/p>\n Article 271<\/p>\n \u201c1.\u00a0\u00a0Save for the circumstances described by law, the courts shall make decisionsabout objections without holding a hearing. The public prosecutor as well as the defendant or his\/her legal representative may be heard if necessary.<\/p>\n …<\/p>\n 4.\u00a0\u00a0The decision delivered in respect of the objection shall be final…\u201d<\/p>\n 26.\u00a0\u00a0Section 5 of the Criminal Records Act (Law no. 5352) provides that decisions concerning administrative fines are notto be registered in the criminal records even if delivered by a court.<\/p>\n THE LAW<\/strong><\/p>\n ALLEGED VIOLATION OF ARTICLE 6\u00a7 1 OF THE CONVENTION<\/p>\n 27.\u00a0\u00a0The applicant complained that the proceedings had been unfair, in that the domestic court had not held an oral hearingand had imposed an administrative fine without granting him a hearing. He relied on Article\u00a06 \u00a7\u00a01 of the Convention, which, in so far as relevant, reads as follows:<\/p>\n \u201c1.\u00a0\u00a0In the determination of … any criminal charge against him, everyone is entitled to a fair and public hearing … by an independent and impartial tribunal established by law. …\u201d<\/p>\n A.\u00a0\u00a0Admissibility<\/strong><\/p>\n 1.\u00a0\u00a0Applicability of Article 6 of the Convention<\/em><\/p>\n 28.\u00a0\u00a0The Government argued that the imposition of an administrative fine on the applicant did not constitute determination of a criminal charge against him. In that connection they maintained that, although an administrative fine may be regarded as a deterrent measure, it could not be classified as a criminal sanction.<\/p>\n 29.\u00a0\u00a0The Court recalls that in the case of Jussila v. Finland [GC], no.\u00a073053\/01, ECHR 2006\u2011XIV), it examined whether tax surcharge proceedings were \u201ccriminal\u201d within the autonomous meaning of the Article, and to this end relied on three criteria, commonly known as the \u201cEngel criteria\u201d (see Engel and Others v. the Netherlands, 8 June 1976, \u00a7\u00a082, Series\u00a0A no. 22), to be considered in determining whether or not there was a \u201ccriminal charge\u201d. The first criterion is the legal classification of the offence under national law, the second is the very nature of the offence and the third is the degree of severity of the penalty that the person concerned risks incurring. The second and third criteria are alternative and not necessarily cumulative. However, this does not exclude a cumulative approach in cases where separate analysis of each criterion does not make it possible to reach a clear conclusion as to the existence of a criminal charge (see Sergey Zolotukhin v.Russia [GC], no. 14939\/03, \u00a7 53, ECHR 2009, and Steininger v.\u00a0Austria, no.21539\/07, \u00a7 34, 17 April 2012).<\/p>\n 30.\u00a0\u00a0As regards the first criterion, it is clear that the impugned fine was administrative under section 32 of the Misdemeanours Act. However, this is not decisive. As for the second criterion, the Court notes that the offence at issue, namely failure to obey the orders of an official authority, was a misdemeanour and criminal in nature. In that connection, it points out that the applicant was charged with that offence on account of having provided premises for prostitution, an act which did not constitute a separate criminal offence at the time of the events and was regulated as one by the entry into force of the new Criminal Code (Law no. 5237) during the course of the proceedings against the applicant. With regard to the third criterion, the Court observes that, although the administrative fine was not a substantial amount, it was punitive, as clearly stated by the B\u00fcy\u00fck\u00e7ekmece Magistrates\u2019 Court in its decision (see paragraph 15 above). In that respect, it notes that the purpose of the finewas not compensation for damage caused by the applicant but rather a measure to deter the latter from committing the offence again. In the light of the foregoing, the Court finds that Article\u00a06 applies under its criminal head.<\/p>\n 31.\u00a0\u00a0It follows that the Government\u2019s objection of the incompatibility ratione materiae of the applicant\u2019s complaint with Article 6 of the Convention must be dismissed.<\/p>\n 2.\u00a0\u00a0Exhaustion of domestic remedies<\/em><\/p>\n 32.\u00a0\u00a0The Government maintained that the applicant had failed to exhaust the domestic remedies in that he had not brought compensation proceedings before the civil or administrative courts in respect of the damage he had allegedly suffered.<\/p>\n 33.\u00a0\u00a0The Court observes that the applicant\u2019s complaint concerns the fairness of the domestic proceedings as a result of which he was sentenced to an administrative fine. According to both the Misdemeanours Act and the Code of Criminal Procedure, the only effective remedy whereby he could have his complaints examined is the filing of an objection with the nearest Assize Court, to which the applicant had recourse in the present case. Accordingly, the Court rejects the Government\u2019s argument that the applicant failed to exhaust domestic remedies.<\/p>\n 3.\u00a0\u00a0Compliance with the six-month time-limit<\/em><\/p>\n 34.\u00a0\u00a0The Government claimed that the applicant had not complied with the six-month time-limit. In that connection they stated that the final decision in the present case had been delivered by the Bak\u0131rk\u00f6y Assize Court on 3February 2006, whereas the application had been lodged with the Court on 29December 2006.<\/p>\n 35.\u00a0\u00a0The Court reiterates first of all that where an applicant is automatically entitled to be served with a written copy of the final domestic decision, the object and purpose of Article 35 \u00a7 1 of the Convention are best served by counting the six\u2011month period as running from the date of service of the written judgment. The Government did not mention that date in their observations. The Court observes, however, that the two documents annexed to their observations indicate different dates of notification (see paragraphs\u00a018 and 20 above). The first document was a copy of an envelope bearing a postal stamp dated 24 May 2006 but no confirmation that it had actually been served on the applicant. The second was a report drawn up by a public prosecutor following the communication of the present case, which simply noted that the applicant had been notified of the final decision on 26\u00a0May 2006, without referring to any supporting documents.<\/p>\n 36.\u00a0\u00a0However, the applicant claimed that he had learnt of the final decision only when his lawyer went to the registry of the B\u00fcy\u00fck\u00e7ekmece Magistrates\u2019 Court on 11July 2006. In support of his claim, he submitted a copy of the final decision with a note, which was later stamped and certified as an authentic copy by the registry of that court,stating that his lawyer had received the decision on that date (see paragraph 19 above).<\/p>\n 37.\u00a0\u00a0As a result of the conflicting submissionsmade by the parties,in letters dated 2014 and 2017 respectively the Court asked the parties under Rule\u00a054 \u00a7 2 (c) of the Rules of Court to provide it with documents indicating the notification date of the final decision. It requested from the Government, in particular,documents which couldsubstantiate the information submitted previously by them. However, the Government informed the Court that they could not find the relevant documents.<\/p>\n 38.\u00a0\u00a0In view of the foregoing, the Court concludes that the applicant learned of the final decision on 11 July 2006, as supported by the officially recognised document he submitted, and that the six-month period started running on that date. In that connection, it points out that the Government did not challenge the veracity of that document,nor did they claim that the decision had been served on the applicant.<\/p>\n 39.\u00a0\u00a0Consequently, the Court dismisses the Government\u2019s objection under this head as well.<\/p>\n 4.\u00a0\u00a0Conclusion<\/em><\/p>\n 40.\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 41.\u00a0\u00a0The applicant complained that the domestic court\u2019s failure to grant him a hearing during the course of the proceedings violated his right to a fair trial. He argued that although the fine was only a modestone, it carried with it a substantial stigma affecting his reputationsince the offence in question, namely, providing premises for prostitution, was a nefarious one. He further argued that such fines were registered in the criminal records, and would have a negative impact on his personal and business life.<\/p>\n 42.\u00a0\u00a0The Government maintained that if the offence had been committed after 1June 2005, that is to say, after the entry into force of the Misdemeanours Act and the recent Code of Criminal Procedure, the fine would have been imposed directly by the relevant official authority, without any court proceedings. They stated that the domestic court had takenthe new provisions into account in the applicant\u2019s favour and had sentenced him to an administrative fine, which could not be converted into imprisonment and had not been registered in the criminal records. They argued that the outcome of the proceedings could therefore hardly be considered important for the applicant. They further argued that in the present case the relevant law had been clear and the facts undisputed, leaving little room for judicial discretion. The case file included many witness statements and an official report proving that the applicant\u2019s hotel was being used for prostitution purposes. Moreover, the applicant had been heard by the authorities during the preliminary investigation stage and had been able to submit his written arguments to the court during the course of the proceedings. The Government concluded that the imposition of an administrative fine without the holding of an oral hearing did not contravene Article 6 of the Convention, in particular taking into account the requirement for efficiency and expediency in the administration of justice.<\/p>\n 2.\u00a0\u00a0The Court\u2019s assessment<\/em><\/p>\n 43.\u00a0\u00a0An oral, and public, hearing constitutes a fundamental principle that is enshrined in Article 6 \u00a7 1. This principle is particularly important in the criminal context, where generally there must be, at first instance, a tribunal which fully meets the requirements of Article 6, and where an applicant has an entitlement to have his case \u201cheard\u201d, with the opportunity, inter alia, to give evidence in his own defence, to hear the evidence against him, and to examine and cross-examine the witnesses (see Jussila, cited above, \u00a7\u00a040).<\/p>\n 44.\u00a0\u00a0That said, the obligation to hold a hearing is not absolute. In Jussila (cited above), the Court found that in the light of the broadening of the notion of a \u201ccriminal charge\u201d to cases not belonging to the traditional categories of criminal law (such as administrative penalties, customs law and tax surcharges), there were clearly \u201ccriminal charges\u201d of differing weights. While the requirements of a fair hearing are strictest concerning the hard core of criminal law, the guarantees of the limb of Article 6 applying to criminal law do not necessarily apply with their full stringency to other categories of cases falling under that head and which do not carry any significant degree of stigma. The Court therefore accepted that an oral hearing might not be required in all cases in the criminal sphere (see Jussila, cited above, \u00a7 43).<\/p>\n 45.\u00a0\u00a0Drawing a parallel with its approach in civil cases, the Court considered that the kind of circumstances which may justify dispensing with an oral hearing essentially depends on the nature of the issues to be dealt with by the competent court \u2013 in particular, whether these raise any question of fact or law which could not be adequately resolved on the basis of the case file. An oral hearing may not be required where there are no issues of credibility or contested facts which necessitate an oral presentation of evidence or the cross-examination of witnesses and where the accused has been given an adequate opportunity to put forward his case in writing and to challenge the evidence against him (see Jussila, cited above, \u00a7\u00a7\u00a041\u201142 and\u00a047\u201148). In this connection, it is legitimate for the national authorities to have regard to the demands of efficiency and economy (Jussila, cited above, \u00a7\u00a042).<\/p>\n 46.\u00a0\u00a0Furthermore, when accepting that a hearing was not necessary in the circumstances of a particular case, the Court has previously takeninto account the modest sum at stake or the minor character of the offence (Jussila, cited above, \u00a7 48, and Suhadolc v. Slovenia (dec.), no.\u00a057655\/08, 17\u00a0May 2011).<\/p>\n 47.\u00a0\u00a0The Court observes in the present case that the domestic proceedings at issue concerned the imposition of an administrative fine on the applicant, which, as such, does not belong to the traditional categories of criminal law (see Suhadolc, cited above).<\/p>\n 48.\u00a0\u00a0Although the proceedings at issue started with an indictment by the public prosecutor in accordance with the former legislation\u2212\u00a0which prescribed a short-term prison sentence for the offence in question\u00a0\u2212the B\u00fcy\u00fck\u00e7ekmece Magistrates\u2019 Court took account of the recent legislation which entered into force only two days after the bill of indictment and sentenced the applicant to a fine of TRY 100 pursuant to section 32 of the Misdemeanours Act. The applicant objected to that judgment, arguing that his defence rights required that he must be heard during an oral hearing before the court. In doing so, he did not challenge the credibility of statements given by or to the gendarmerie or request evidence to be presented and heard by the court, but merely maintained that there had not been sufficient evidence to prove that he had been aware of the prostitution.<\/p>\n 49.\u00a0The Court notes furthermore that the administrative fine imposed on the applicant was a modestone and did not carry a significant degree of stigma. It cannot agree with the applicant\u2019s claim that the proceedings were of considerable personal significance to him in that they were concerned with anefarious crime and had a negative impact on his reputationIn that connection, the Court points out that although the domestic court maintained in its reasoning that the applicant was found to have provided premises for prostitution in his hotel, the offence he was eventually found guilty of was failure to obey the orders of an official authority. Moreover, despite the applicant\u2019s allegation to the contrary, according to the Criminal Records Act, administrative fines such as the one at issue are not registered in the criminal records (see paragraph26 above).<\/p>\n 50.\u00a0\u00a0As regards the domestic regulations concerning the right to an oral hearing, the Court observes that in examining the applicant\u2019s objection to the fine, the Assize Court had the discretion to order an oral hearing if it considered one necessary, pursuant to Article 271 of the Code of Criminal Procedure (Law no. 5271).<\/p>\n 51.\u00a0\u00a0Taking into account the fact that the applicant did not challenge the credibility of statements given by or to the gendarmerie or request evidence to be presented to and heard by the domestic court, the case did not raise any factual issues (see, a contrario, Hannu Lehtinen v.\u00a0Finland, no.\u00a032993\/02, \u00a748, 22 July 2008, andFlisar v. Slovenia, no. 3127\/09, \u00a7\u00a039, 29\u00a0September2011). Moreover, the applicant was able to make his submissions before the domestic court in writing. Accordingly, the Court finds force in the Government\u2019s argument that the domestic court was able to adequately resolve the case on the basis of the case file and therefore did not need to hold an oral hearing. It holds therefore that the absence of an oral hearing was justified in the circumstances of the present case.<\/p>\n 52.\u00a0\u00a0There has accordingly been no violation of Article 6 \u00a7 1 of the Convention.<\/p>\n FOR THESE REASONS, THE COURT,<\/strong><\/p>\n 1.\u00a0\u00a0Declares, unanimously,the application admissible;<\/p>\n 2.\u00a0\u00a0Holds, by six votes to one,that there has been no violation of Article\u00a06 \u00a7\u00a01 of the Convention.<\/p>\n Done in English, and notified in writing on 15 May 2018, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.<\/p>\n Hasan Bak\u0131rc\u0131\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 Paul Lemmens ______________<\/p>\n In accordance with Article\u00a045 \u00a7\u00a02 of the Convention and Rule\u00a074 \u00a7\u00a02 of the Rules of Court, the separate opinion of Judge Lemmens is annexed to this judgment.<\/p>\n P.L. DISSENTING OPINION OF JUDGE LEMMENS<\/strong><\/p>\n 1.\u00a0\u00a0To my regret, I am unable to follow the majority in its conclusion that there has been no violation of Article 6 \u00a7 1 of the Convention. That conclusion is based on the view that the fine imposed on the applicant is merely an \u201cadministrative\u201d sanction. I respectfully disagree, as I consider that the proceedings brought against the applicant were of a \u201ccriminal\u201d nature and that the fine imposed was a \u201ccriminal\u201d one.<\/p>\n 2.\u00a0\u00a0The charges brought against the applicant were based on Article\u00a0526 \u00a7\u00a01 of the Criminal Code, and the case was sent to the Magistrates\u2019 Court, a criminal court.<\/p>\n Two days later the Misdemeanours Act entered into force. The same offence was now the object of section 32 \u00a7 1 of that Act. Article 526 of the Criminal Code was abolished.<\/p>\n If charges had been brought after the entry into force of the Misdemeanours Act, an administrative authority could have imposed an administrative sanction (section 22 of the Misdemeanours Act). However, the case was pending before a criminal court. In such a situation, section\u00a024 of the Misdemeanours Act was applicable: when that court (in our case the Magistrates\u2019 Court) found that the offence was a misdemeanour, it had to deliver a decision imposing an \u201cadministrative sanction\u201d.<\/p>\n The term \u201cadministrative sanction\u201d referred, in my opinion, to the sanctions classified as such in the Misdemeanours Act. Among these sanctions is listed a fine, called an \u201cadministrative fine\u201d (section 16 of the Misdemeanours Act).<\/p>\n 3.\u00a0\u00a0The majority refer to section 32 of the Misdemeanours Act to conclude that the impugned fine was \u201cadministrative\u201d under domestic law.<\/p>\n It is true that section 32 \u00a7 1 provides that an \u201cadministrative fine\u201d is to be imposed on those who have committed the offence of which the applicant was found guilty. However, this does not turn the fine actually imposed by the Magistrates\u2019 Court into an \u201cadministrative\u201d one for the purposes of Article\u00a06 of the Convention.<\/p>\n The Convention distinguishes between, on the one hand, offences prosecuted before and punished by courts, and on the other, offences, often of a minor nature, which are prosecuted before and punished by administrative authorities. Proceedings before a court are subject to the guarantees of Article 6. Proceedings before an administrative authority are not subject to these guarantees, but if the charge is \u201ccriminal\u201d in the (autonomous) sense of Article 6, that provision requires that the person concerned is able to take any decision thus made against him or her before a tribunal that does offer the guarantees of Article 6 (see the principle established in \u00d6zt\u00fcrk v. Germany, 21 February 1984, \u00a7 56, Series A no.\u00a073).<\/p>\n Had the fine imposed on the applicant been handed down by an administrative authority, it would have been a truly \u201cadministrative\u201d sanction, and the Convention would then have required that the applicant could challenge that fine before a court. The Misdemeanours Act provides for such a possibility (for an example in our case-law, see \u00d6zmurat \u0130n\u015faat Elektrik Nakliyat Temizlik San. ve Tic. Ltd. \u015eti. v. Turkey, no.\u00a048657\/06, 28\u00a0November 2017; for other examples involving judicial review of a sanction imposed by an administrative authority (and raising an issue about the right to an oral hearing), see H\u00fcseyin Turanv. Turkey, no.\u00a011529\/02, 4\u00a0March 2008, and Suhadolc v. Slovenia (dec.), no. 57655\/08, 17\u00a0May 2011). Sections 27 and 28 of that Act provide that the person concerned can challenge an \u201cadministrative\u201d sanction imposed by an administrative authority before the Magistrates\u2019 Court, which can annul the sanction. In such a case, the Magistrates\u2019 Court acts as an administrative court: it does not have the power to impose a sanction itself, it can only examine whether the sanction imposed by the administrative authority is a lawful one.<\/p>\n In the applicant\u2019s case, the situation was very different. The Magistrates\u2019 Court examined the charge brought against the applicant on the merits, found that the offence was a misdemeanour under the Misdemeanours Act, declared the applicant guilty of that offence, and applied the sanction provided by the Misdemeanours Act. The entire proceedings were judicial in nature. The only thing that was \u201cadministrative\u201d was the name given to the sanction by domestic law.<\/p>\n That characterisation cannot, in my opinion, change the nature of the charge. Whatever the term used for the sanction ultimately imposed, the charge was, from beginning to end, a \u201ccriminal\u201d one.<\/p>\n I therefore believe that the charge was \u201ccriminal\u201d already under the first of the Engel criteria: the proceedings in question were classified as criminal under domestic law.<\/p>\n 4.\u00a0\u00a0The majority do not contest that the applicant had, as a matter of principle, the right to an oral, and even a public, hearing before the Magistrates\u2019 Court. As is reiterated in the judgment, \u201cthis principle is particularly important in the criminal context, where generally there must be, at first instance, a tribunal which fully meets the requirements of Article\u00a06, and where an applicant has an entitlement to have his case \u2018heard\u2019, with the opportunity, inter alia, to give evidence in his own defence, to hear the evidence against him, and to examine and cross-examine the witnesses\u201d (see paragraph 43 of the judgment, referring to Jussila v. Finland [GC], no.\u00a073053\/01, \u00a7 40, ECHR 2006\u2011XIV).<\/p>\n I agree with the majority that the obligation to hold a hearing is not absolute (see paragraph 44 of the judgment, referring to Jussila, cited above, \u00a7\u00a040).<\/p>\n I disagree, however, with the majority\u2019s subsequent approach, which is based on the fact that the proceedings against the applicant did not concern the \u201chard core of criminal law\u201d, but rather belonged to a category of cases \u201cwhich do not carry any significant decree of stigma\u201d and for which \u201cthe guarantees of the limb of Article 6 applying to criminal law do not necessarily apply with their full stringency\u201d (see paragraph 44 of the judgment).<\/p>\n The distinction made by the majority is based on Jussila (cited above, \u00a7\u00a043). However, in Jussila the second of the above-mentioned categories of cases related to cases \u201cnot strictly belonging to the traditional categories of the criminal law\u201d, but which nevertheless are considered to concern \u201ccriminal charges\u201d under the Engel criteria. It was noted that the application of these criteria resulted in \u201ca gradual broadening of the criminal head [of Article\u00a06 \u00a7 1]\u201d (ibid.). I would like to add that the cases belonging to this second category are more akin to administrative-law cases, where an administrative court reviews an administrative act.<\/p>\n By contrast, however, as explained above, the case brought against the applicant was criminal in all its essential aspects. Thus, it did not belong to the category of cases that fell under Article 6 \u00a7 1 because of the application of the broad Engel criteria. The proceedings before the Magistrates\u2019 Court concerned, in my opinion, the \u201chard core of criminal law\u201d, notwithstanding the minor nature of the sanction that could be imposed.<\/p>\n For such cases, an oral hearing at first instance is the general rule and the exceptions to that rule \u201cessentially [come] down to the nature of the issues to be decided by the competent national court\u201d (see Jussila, cited above, \u00a7\u00a042). An oral hearing is not required, for example, \u201cwhere there are no issues of credibility or contested facts which necessitate a hearing and the courts may fairly and reasonably decide the case on the basis of the parties\u2019 submissions and other written materials\u201d (ibid., \u00a7 41, referred to in paragraph\u00a045 of the present judgment). The modest character of the fine and the degree of stigma carried by it (see paragraph 49 of the judgment) do not come into play to justify dispensing with an oral hearing in such cases.<\/p>\n 5.\u00a0\u00a0According to the majority, the applicant \u201cdid not challenge the credibility of statements given by or to the gendarmerie or request evidence to be presented and heard by the court, but merely maintained that there had not been sufficient evidence to prove that he had been aware of the prostitution\u201d (see paragraph 48 of the judgment).<\/p>\n I find it hard to draw such a conclusion from the facts of the case. We do not know whether the applicant contested the charge brought against him before the Magistrates\u2019 Court, and if so, what were his arguments. But we do know that in his objection to the decision of the Magistrates\u2019 Court \u201che maintained that he accepted clients into his hotel in compliance with the relevant regulation and that he could not be expected to refuse to offer accommodation to foreign nationals or to question their motives for staying there\u201d (see paragraph 16 of the judgment). I assume that the applicant had already raised these arguments before the Magistrates\u2019 Court, or could have raised them before that court. If so, it seems to me that these were arguments raising issues of fact, which lent themselves to an oral development by the applicant and to a direct assessment of his credibility by the Magistrates\u2019 Court.<\/p>\n However, the Magistrates\u2019 Court declared the applicant guilty solely on the basis of the file, that is, on the basis of statements made by, among others, the applicant and the hotel manager (see paragraphs 11-12 of the judgment). This way of proceeding was, in my opinion, not compatible with Article\u00a06 \u00a7 1 of the Convention.<\/p>\n 6.\u00a0\u00a0Theoretically, the question could arise whether a public hearing before the Assize Court, which examined the applicant\u2019s objection to the decision of the Magistrates\u2019 Court, would have been capable of correcting the defect before the first-instance court (see Findlay v. the United Kingdom, 25February 1997, \u00a7 79, Reports of Judgments and Decisions 1997\u2011I). However, in the present case this is a purely hypothetical question, since the Assize Court did not hold a hearing either.<\/p>\n 7.\u00a0\u00a0Since the applicant did not benefit from an oral hearing before the Magistrates\u2019 Court or before the Assize Court, I believe that there has been a violation of Article 6 \u00a7 1.<\/p>\n ______________<\/p>\n [1].\u00a0\u00a062 euros at the time of the events.<\/p>\n
\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 Hasan Bak\u0131rc\u0131, Deputy Section Registrar,<\/p>\n
\nDeputy Registrar\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
\nH.B.<\/p>\n