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SECOND
SECTION
CASE OF NURHAN YILMAZ (2) v. TURKEY
(Application
no. 16741/04)
JUDGMENT
STRASBOURG
8 April
2008
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Nurhan Yılmaz (2) v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Ireneu Cabral Barreto,
Rıza
Türmen,
Vladimiro Zagrebelsky,
Danutė
Jočienė,
András Sajó,
Nona
Tsotsoria, judges,
and Françoise Elens-Passos,
Deputy Section Registrar,
Having
deliberated in private on 18 March 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 16741/04) against the Republic
of Turkey lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Turkish national, Ms Nurhan Yılmaz (“the
applicant”), on 21 April 2004.
- The
applicant was represented by Mrs Ö. Mungan, a lawyer practising
in Mardin. The Turkish Government (“the Government”) were
represented by their Agent.
- On
6 November 2006 the Court decided to give notice of the application
to the Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1978 and lives in Izmir.
- The
applicant was the representative of the Izmir branch of a political
journal, namely the “Bread and Justice” magazine.
- On
29 April 2003 the police conducted a search in the journal's office,
and found certain books and magazines which they suspected to be
illegal. These publications were confiscated.
- On
an unspecified date, the applicant was summoned to the police station
to give a statement concerning the ongoing investigation. She was
accompanied by her lawyer during her interrogation.
- On
19 June 2003 the Izmir public prosecutor filed an indictment with the
Izmir Magistrates' Court. He accused the applicant of “failure
to obey the order of an official authority”, under Article 526
§ 1 of the Criminal Code, on the ground that some of the
materials gathered from her office had been previously declared
illegal by a decision of the Istanbul State Security Court. The
indictment was not served on the applicant.
- On
14 July 2003 the Izmir Magistrates' Court, without holding a hearing,
issued a penal decree and found the applicant guilty as charged. It
sentenced her to three months' imprisonment. The court then commuted
the applicant's sentence to a fine of 606,874,000 Turkish liras.
In doing so, the court relied on the “simplified procedure”
stipulated in Article 386 of the Code of Criminal Procedure for
relatively minor offences.
- On
15 October 2003 the applicant challenged this decision before the
Izmir Criminal Court. In her petition, the applicant complained that
her defence rights had been breached as she was never heard by the
domestic court. It was also noted in the petition that, when the
applicant was summoned to the police station to give a statement, she
had been accompanied by her lawyer during the interrogation.
- On
17 October 2003 the Criminal Court dismissed the objection without
holding a hearing. The applicant was notified of this final decision
on 27 October 2003.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- A
full description of the relevant domestic law may be found in the
judgment of Mevlüt Kaya v. Turkey (no. 1383/02, §§
11-13, 12 April 2007).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant complained that she had been unable to defend herself in
person or through legal assistance, as there had been no public
hearing in her case. She also alleged that she had been deprived of
legal assistance whilst in police custody. In respect of her
complaints, she relied on Article 6 §§ 1 and 3 (c) of the
Convention, which in so far as relevant read as follows:
“1. In the determination of ... any
criminal charge against him, everyone is entitled to a fair ...
hearing ... by [a] ... tribunal...
3. Everyone charged with a criminal offence
has the following minimum rights: ...
(c) to defend himself in person or through
legal assistance of his own choosing or, if he has not sufficient
means to pay for legal assistance, to be given it free when the
interests of justice so require; ...”
- The
Government contested these arguments.
A. Admissibility
- As regards the applicant's complaint concerning the
lack of legal assistance in police custody, the Government argued
that the applicant was never taken into police custody. They
maintained that, in the course of the investigation, the applicant
had been summoned to the police station to give a statement, and that
during her interrogation her lawyer had been present. They contended
that this fact had also been accepted by the applicant in her appeal
petition to the Izmir Criminal Court dated 15 October 2003.
- The applicant made no comments on this point.
- It is observed that the applicant was not taken into
police custody in connection with the criminal proceedings in
question. It is also clear that, when the applicant was summoned to
the police station to give a statement, she was accompanied by her
lawyer (see paragraphs 7 and 10 above). Consequently, the Court finds
this complaint to be wholly unsubstantiated and rejects it as being
manifestly ill-founded, pursuant to Article 35 §§ 3 and 4
of the Convention.
- However, the Court notes that the remainder of the
application is not manifestly ill-founded within the meaning of
Article 35 § 3 of the Convention. It further notes that it is
not inadmissible on any other grounds. It must therefore be declared
admissible.
B. Merits
1. General principles
- The
Court reiterates that it is a fundamental principle enshrined in
Article 6 § 1 that court hearings should be held in public. This
public character protects litigants against the administration of
justice without public scrutiny; it is also one of the means whereby
people's confidence in the courts can be maintained. By rendering the
administration of justice transparent, publicity contributes to the
achievement of the aim of Article 6 § 1, namely a fair
trial, the guarantee of which is one of the principles of any
democratic society (see, among other authorities, Stefanelli
v. San Marino, no.35396/97, § 19, ECHR 2000 II).
- Read
as a whole, Article 6 guarantees the right of an accused to
participate effectively in the criminal trial. In general, this
includes not only the right to be present, but also the right to
receive legal assistance if necessary, and to follow the proceedings
effectively. Such rights are implicit in the very notion of an
adversarial procedure and can also be derived from the guarantees
contained in sub-paragraphs (c) and (e) of Article 6 § 3 (see,
among other authorities, Stanford v. the United Kingdom,
judgment of 23 February 1994, Series A no. 282-A, pp. 10–11,
§ 26).
- Furthermore, Article 6 § 1 does not
guarantee a right of appeal against a decision of first instance.
Where, however, domestic law provides for a right of appeal, the
appeal proceedings will be treated as an extension of the trial
process and, accordingly, will be subject to Article 6 (see Delcourt
v. Belgium, judgment of 17 January 1970, Series A no.
11, § 25).
2. Application in the present case
- At
the outset, the Court notes that, in a judgment delivered on 30 June
2004, the Constitutional Court unanimously declared Article 390 § 3
of the former Criminal Code unconstitutional and a nullity, holding
that depriving individuals of a public hearing was an infringement of
the right to a fair trial. Furthermore, with the new Criminal Code
and the Code of Criminal Procedure, which came into force on 1 June
2005, the practice of issuing penal orders ceased to exist.
- However,
the Court observes that, in accordance with the relevant domestic law
prevailing at the time of the events, no public hearing was held
during the applicant's prosecution. Both the Izmir Magistrates'
Court, which issued the penal order and fined the applicant, and the
Izmir Criminal Court, which examined her objection, took their
decisions on the basis of the documents in the case file. The
applicant was not given the opportunity to defend herself in person
or through a lawyer before the courts which determined her case. The
Court, therefore, considers that the applicant was not able to
participate in the criminal proceedings effectively.
- In view of the above, the Court concludes that the
procedure followed by the judicial authorities prevented the
applicant from exercising her defence rights properly and thus
rendered the criminal proceedings unfair.
- Consequently,
there has been a violation of Article 6 § 1 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO
THE CONVENTION
- The
applicant alleged that the confiscation of the various books and
magazines, following the police search, constituted a breach of
Article 1 of Protocol No. 1.
- The
Court notes that this property was owned by the journal, not the
applicant, and that she did not lodge the present application to the
Court on behalf of the journal. Therefore, there has been no
interference with any of the applicant's property rights, within the
meaning of Article 1 of Protocol No. 1, and she cannot claim a
breach of such rights on the journal's behalf (see Nurhan Yılmaz
v. Turkey, no. 21164/03, § 26, 11 December
2007).
- It
follows that this part of the application is manifestly ill-founded
and must be rejected pursuant to Article 35 §§ 3 and 4 of
the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
- The
applicant did not submit a claim for just satisfaction. Accordingly,
the Court considers that there is no call to award her any sum on
that account.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the
applicant's right to a fair hearing admissible and the remainder of
the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention.
Done in English, and notified in writing on 8 April 2008, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Françoise
Tulkens
Deputy Registrar President
