BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
SECOND
SECTION
CASE OF PİROĞLU AND KARAKAYA v. TURKEY
(Applications
nos. 36370/02 and 37581/02)
JUDGMENT
STRASBOURG
18 March 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 Piroğlu and Karakaya 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,
Antonella
Mularoni,
Danutė
Jočienė,
Dragoljub
Popović, judges,
and
Sally Dollé, Section Registrar,
Having
deliberated in private on 27 November 2007 and 26 February 2008,
Delivers
the following judgment, which was adopted on that last-mentioned
date:
PROCEDURE
- The
case originated in two applications (nos. 36370/02 and 37581/02)
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 two Turkish nationals, Mr
Ecevit Piroğlu and Mrs Mihriban Karakaya (“the
applicants”), on 17 August 2002 and 18 August 2002
respectively.
- The
applicants were represented by Ms E. Yıldız and Mr Zeynel
Kaya respectively, lawyers practising in Izmir. The Turkish
Government (“the Government”) were represented by their
Agent.
- On
2 May 2006 the Court joined the applications (Rule 42 § 1),
declared them partly inadmissible and decided to communicate to the
Government the complaints concerning both applicants' right to a fair
and public hearing, and the second applicant's right to freedom of
expression and freedom of association. Under the provisions of
Article 29 § 3 of the Convention, the Court decided to examine
the merits of the applications at the same time as their
admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1974 and 1962, respectively, and live in
Izmir. They were members of the executive board of the Izmir Branch
of the Human Rights Association (“the Association”) at
the time of lodging their applications to the Court. There were two
different sets of criminal proceedings brought against the
applicants; however, it should be noted that the first applicant's
case concerned only the first set of proceedings, regarding the
Association members with prior convictions.
A. Proceedings regarding the Association members with
prior convictions
- On
10 July 2001 the Izmir Governor sent a letter to the Association
requesting that the membership of thirteen persons, including the
second applicant, be annulled as they were considered to be involved
in illegal activities. In this letter it is said that, although the
second applicant had been taken into police custody on 30 April 1999,
she had subsequently been released as it had not been established
that she had any connection with the illegal TKP/ML-TIKKO (the
Turkish Communist Party / Marxist-Leninist–Turkish Workers' and
Peasants' Liberation Army).
- On
6 August 2001 the Association replied to the Governor that they would
not comply with the request since none of these thirteen persons had
prior convictions which would ban them from founding or becoming a
member of an association, as provided by section 4 §§ 2 and
3 and section 16 of the Associations Act (Law no. 2908).
- On
17 October and 31 October 2001 respectively, the Izmir Public
Prosecutor informed the applicants that a prosecution had been
initiated against them for non-compliance with section 4 of Law no.
2908, but that no court proceedings would be initiated if they paid a
fine of 142,366,000 Turkish liras (TRL)
per person within ten days. The applicants did not pay the fine
within ten days as required by the payment order.
- Subsequently,
on 3 December 2001 the Izmir Public Prosecutor filed a bill of
indictment against the applicants and the other members of the Board.
The public prosecutor requested that the accused be fined under
Section 75 of the Associations Act and Article 119 of the Criminal
Code for their failure to comply with the Izmir Governor's request.
The bill of indictment was not notified to the applicants.
- On
26 December 2001 the Izmir Magistrates' Court, without holding a
hearing, found the applicants and the other co-accused guilty as
charged and, by a penal order (ceza kararnamesi), fined them
TRL 213,548,400
per person. In doing so, the court relied on the “simplified
procedure” stipulated in Article 386 of the Code of Criminal
Procedure for relatively minor offences.
- The
applicants and the other co-accused lodged an objection with the
Izmir Criminal Court against the decision of 26 December 2001.
- On
6 February 2002 the Izmir Criminal Court dismissed the objection
without a hearing.
- The
applicants paid the amounts due.
- Subsequently,
on 16 December 2002 one of the co-accused, Mr N.B., applied to
the Ministry of Justice, requesting the Minister to refer the case to
the Court of Cassation by way of a written order (yazılı
emir).
- On
29 January 2003 the Minister of Justice issued a written order and
instructed the Chief Public Prosecutor at the Court of Cassation to
ask the Court of Cassation to set aside the judgment concerned.
- On
14 April 2003 the Court of Cassation quashed the judgment of the
Izmir Criminal Court dated 6 February 2002 and the case file was
remitted to the Izmir Magistrates' Court.
- On
14 May 2003 the Izmir Magistrates' Court held a preparatory hearing
and included the case in its list. It further decided to summon all
of the defendants, including the applicants, to its next hearing.
- On
14 July, 7 August and 22 October 2003 respectively, the court held
three hearings.
- At
its last hearing, held on 22 October 2003, the Magistrates' Court
held that it lacked jurisdiction to hear the case because, following
the promulgation of Law no. 4854 on 24 April 2003, the sentence
imposed on the applicants for not complying with the Izmir
Governorship's order had been classified as an administrative fine.
During the proceedings, none of the defendants made submissions to
the court.
- On
25 February 2004 the Court of Cassation upheld the decision of the
Izmir Magistrates' Court. The case file was sent to the Governorship
of Izmir.
2. Proceedings regarding the Platform of Conscientious
Objectors to War
- On
9 October 2001 the Association, together with several local
non-governmental organisations (NGOs), took part in a civil society
movement called the “Platform of Conscientious Objectors to
War” and made a collective press declaration in protest against
the military operations of the United States of America (USA) in
Afghanistan.
- On
an unspecified date, the prosecutor notified the second applicant
that a prosecution had been initiated against her under Section 34 of
the Associations Act for her involvement with the “Platform of
Conscientious Objectors to War”, an organisation without any
lawful status. The prosecutor also informed the applicant that no
court proceedings would be initiated if she paid a fine of TRL
142,366,000 within ten days.
- In
the absence of payment, the prosecutor filed an indictment on
3 December 2001, charging the second applicant and five other
board members of the Association with a violation of Section 34 of
the Act. In the indictment, the prosecutor stated that the platform
had no legal basis under Turkish law. The bill of indictment was not
served on the second applicant.
- On
31 December 2001 the Izmir Magistrates' Court, following the
simplified procedure and thus without a hearing, convicted the second
applicant as charged (case no. 2001/2160). By issuing a penal order,
it sentenced her to an increased fine of TRL 213,548,400.
However, the court suspended the sentence pursuant to section 6 of
Law no. 647 on the execution of sentences.
- On
18 February 2002 the second applicant lodged an objection with the
İzmir Criminal Court against the penal
order. She argued that her conviction infringed her right to freedom
of expression and that “a collective press declaration”
could not be classified as a contribution to the establishment of an
unlawful organisation. She further complained that the indictment had
not been communicated to her and that the court had not obtained
statements or heard counter-evidence from her.
- On
20 February 2002 the criminal court dismissed her objection, again
without holding a hearing.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
relevant Articles of the Code of Criminal Procedure which was in
force at the time of the events read as follows:
Article 302
“Unless otherwise specifically provided by law,
objection proceedings are conducted without a hearing. If necessary,
the public prosecutor [may be] heard.”
Article 386
“As regards infringements falling within its
jurisdiction, the ... magistrates' court makes its ruling, without
holding a hearing, through a penal order. The order can only be given
in cases of simple or aggravated fines or in relation to offences
carrying a maximum prison sentence of three months ...”
Article 387
“The judge schedules a hearing if he sees an
inconvenience in ruling in the absence of one.”
Article 390
“A hearing shall be held if an objection is raised
to a prison sentence imposed by a penal order. (...)
The suspect can be represented by defence counsel during
the hearing. (...)
Objections to penal orders (...) are examined by a judge
at the criminal court of first instance, in line with the procedure
described under Articles 301, 302 and 303. The objection would
suspend the execution of the penal order.”
- In
a judgment given on 30 June 2004, the Constitutional Court declared
Article 390 § 3 of the Code of Criminal Procedure
unconstitutional and a nullity. It held that the lack of a public
hearing before the Criminal Court of First Instance which examines
objections to penal orders would be a deprivation of the right
guaranteed by Article 6 of the Convention, as well as Article 36 of
the Constitution.
- Article
343 § 1 of the Code of Criminal Procedure, concerning references
to the Court of Cassation by written order of the Minister of Justice
(Yazılı emir ile bozma – “ the
reference by written order”) provides:
“Where the Minister of Justice has been informed
that a judge or court has delivered a judgment that has become final
without coming under the scrutiny of the Court of Cassation, he may
issue a formal order to the Chief Public Prosecutor requiring him to
ask the Court of Cassation to set aside the judgment concerned ...”
29. The
relevant provisions of the Associations Act (Law no. 2908),
which was in force at the time provided as follows:
Section
4
“Everyone
over the age of eighteen and qualified to exercise civil rights has
the right to establish an association without prior notice.
However, the following persons, even if they have
benefited from an amnesty, may not found an association:
...
2.
a)
Persons convicted of any of the following offences:
shameful offences such as embezzlement, dishonesty, bribery, theft,
fraud, forgery, abuse of religious belief, fraudulent bankruptcy,
offences of smuggling other than for manufacturing, supply or
consumption, [or] improper interference in official competitive
tender procedures, procurements and sales.
b) Any person convicted of those offences appearing in
the first chapter of Book Two of the Turkish Penal Code, or of open
incitement to commit such offences.
c) Any person convicted of incitement to enmity and
hatred on grounds of differences of class, race, language, religion
or region under paragraph two of Article 312 of the Turkish Penal
Code, or of counterfeiting under Articles 316, 317 or 318 of the same
code.
d) Any person convicted of committing, for political and
ideological purposes, those actions mentioned in the first, second or
third paragraphs of Article 536 of the Turkish Penal Code, or those
in the first, second, third, fourth or fifth paragraphs of Article
537 of the same Code ...”
Section 16
“Everyone over the age of eighteen and qualified
to exercise civil rights has the right to become a member of an
association. However, those indicated in the second paragraph of
section 4 of this Law may not be members of associations.”
Section 34
“Associations may not form organisations other
than federations or confederations.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicants complained under Article 6 § 1 of the Convention that
they had been deprived of their right to a fair and public hearing in
the determination of the criminal charges against them. They stressed
the fact that the courts had determined their case without holding a
hearing. The applicants further alleged a breach of Article 6 §
3 (a) of the Convention in that they had not been informed promptly
of the accusations against them as the public prosecutor's indictment
had not been communicated to them. They also maintained that they had
been deprived of their rights to defend themselves in person or
through a lawyer, and to submit counter arguments and evidence,
including the examination of witnesses, within the meaning of Article
6 § 3 (b), (c) and (d).
- Article
6, in so far as relevant reads 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:
(b) to have adequate time and facilities for
the preparation of his defence;
(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;
(d) to examine or have examined witnesses
against him and to obtain the attendance and examination of witnesses
on his behalf under the same conditions as witnesses against him;
...”
A. Admissibility
- The Government argued that the second applicant had
failed to exhaust domestic remedies in respect of the second set of
criminal proceedings. In this connection, they stated that at the end
of the first set of criminal proceedings, at the request of one of
the co-accused, the Ministry of Justice had issued a written order
and referred the case to the Court of Cassation. As the second
applicant did not follow the same procedure for the second set of
proceedings, in the Government's view she could not be considered to
have exhausted domestic remedies within the meaning of Article 35 §
1 of the Convention.
- The
Court notes that the remedy referred to by the Government is an
extraordinary remedy under Turkish law. According to Article 343 of
the Code of Criminal Procedure (see paragraph 28 above), the Chief
Public Prosecutor at the Court of Cassation is empowered to refer a
case to the Court of Cassation, but he may do so only on the formal
instructions of the Minister of Justice. The remedy in question is
therefore not directly accessible to people whose cases have been
tried. Consequently, regard being had to the generally recognised
rules of international law, it is not necessary to attempt this
remedy in order to comply with the requirements of Article 35 §
1 of the Convention (see Öztürk v. Turkey [GC],
no. 22479/93, § 45, ECHR 1999 VI). Accordingly,
the Court dismisses the Government's preliminary objection.
- The Court notes that this part 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 a 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
- The
Court considers that, in the instant case, it is more appropriate to
deal with the applicants' complaints under Article 6 § 1
globally due to the overlapping nature of the issues and since the
sub-paragraphs of Article 6 § 3 may be regarded
as specific aspects of the general fairness guarantee of the first
paragraph.
- 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 applicants' prosecution. Both the Izmir Magistrates'
Court, which issued the penal orders and fined the applicants, and
the Izmir Criminal Court, which examined their objections, took their
decisions on the basis of the documents in the case files. The
applicants were not given the opportunity to defend themselves in
person or through a lawyer before the courts which determined their
cases. The Court, therefore, considers that they were not able to
participate in the criminal proceedings effectively. As regards the
subsequent procedure which started upon the written order issued by
the Minister of Justice on 29 January 2003, the Court notes that no
defence submissions were taken from the applicants and the other
co accused during the proceedings, which ended without curing or
providing redress for the earlier defects (see, a contrario,
Şentuna v. Turkey (dec.), no. 71988/01, 25 January
2007).
- In view of the above, the Court concludes that the
procedure followed by the judicial authorities prevented the
applicants from exercising their 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 10 OF THE CONVENTION
- Relying
on Article 10 of the Convention, the second applicant alleged that
her right to freedom of expression had been infringed, as she had
been convicted of taking part in a movement and participating in a
collective press declaration criticising the military actions of the
USA in Afghanistan.
- Article
10 of the Convention, in its relevant part, provides as follows:
“1. Everyone has the right to freedom
of expression. This right shall include freedom to hold opinions and
to receive and impart information and ideas without interference by
public authority and regardless of frontiers. ...
2. The exercise of these freedoms, since it
carries with it duties and responsibilities, may be subject to such
formalities, conditions, restrictions or penalties as are prescribed
by law and are necessary in a democratic society ... for the
prevention of disorder or crime, ...”
A. Admissibility
- The Court notes that this complaint 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. Whether there was interference
- The
Government denied that there had been interference, arguing that the
second applicant had not been sentenced for making a press
declaration, but for failing to comply with the Associations Act (Law
no. 2908) which had been in force at the time. They maintained
that, according to section 34 of that Act, associations could only
form federations and confederations.
- The
second applicant contested these arguments and claimed that her
conviction constituted an interference with her right to freedom of
expression within the meaning of Article 10 of the Convention.
- The
Court notes that this case differs from a number of other cases
concerning freedom of expression against Turkey that have come before
it. In the instant case, the second applicant was convicted under
section 34 of the Associations Act for her participation in the
“Platform of Conscientious Objectors to War”, which was a
civil society movement initiated by several local NGOs to protest
against the military actions of the USA in Afghanistan. As indicated
in the public prosecutor's indictment dated 3 December 2001,
this “platform” was not a legal person in domestic law.
- The
Court observes that the local NGOs which formed the Platform,
including the Izmir Human Rights Association, made a joint press
declaration on 9 October 2001 and the applicant, in her capacity as a
board member of the Association, was convicted on 31 December 2001 on
the basis of section 34 of the Associations Act. The Court considers
that the second applicant's conviction and sentence for being part of
a movement whose aim was to draw attention to a topical issue at the
time constituted an interference with her freedom of expression.
Thus, in order to be compatible with Article 10, that interference
must satisfy three conditions: it must be “prescribed by law”,
pursue one or more legitimate aims under the second paragraph of the
provision and be “necessary in a democratic society” to
achieve those aims.
2. Was the interference “prescribed by law”?
- The
Government considered that the interference was prescribed by section
34 of the Associations Act, which prevented associations from forming
or being part of a legal entity other than a federation or
confederation.
- The
Court reiterates that the expression “in accordance with the
law” not only requires that the impugned measure should have
some basis in domestic law, but also refers to the quality of the law
in question, requiring that it should be accessible to the person
concerned and foreseeable as to its effects (see Rotaru v. Romania
[GC], no. 28341/95, § 52, ECHR 2000 V). It
notes that the scope of the notion of foreseeability depends to a
considerable degree on the content of the impugned text, the field it
is designed to cover and the number and status of those to whom it is
addressed (see Gorzelik and Others v. Poland [GC],
no. 44158/98, § 65, 17 February 2004).
- In
the instant case, the Court is called upon to examine whether, in the
light of the particular circumstances of the case, section 34 of the
Associations Act relied on by the Government had the requisite
quality of law, i.e. whether it was sufficiently accessible and
foreseeable.
- As
regards accessibility, the Court notes that the provision satisfied
this condition, as the Associations Act had been published in the
Official Gazette of 7 October 1983.
- On
the issue of foreseeability, the Court observes that the wording of
section 34 stipulated that associations could only form federations
and confederations. However, in the Court's view, this wording was
not sufficiently clear to enable the members of the applicant's
Association to have realised that rallying to a movement or
“platform” would lead to criminal sanctions being imposed
on them. The Court finds it difficult to see how supporting such a
movement could be deemed to amount to the formation of an
organisation within the meaning of Section 34. It considers that the
domestic courts thus extended the scope of section 34 beyond that
which could have been reasonably foreseen in the circumstances of the
case (cf. Karademirci and Others v. Turkey, nos. 37096/97
and 37101/97, § 42, ECHR 2005 I).
- As
a result, in sentencing the second applicant to a fine, and
notwithstanding the fact that this sentence was subsequently
suspended, the domestic courts failed to observe the condition of
foreseeability. Accordingly, the interference with the applicant's
freedom of expression was not prescribed by law. That being so, the
Court is not required to determine whether this interference pursued
a legitimate aim or whether it was proportionate to the aim pursued.
- The
Court concludes, therefore, that there has been a violation of
Article 10 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION
- The
second applicant also relied on Article 11 of the Convention,
complaining that she had been convicted, pursuant to Sections 4 and
50 of the Associations Act, for not annulling the membership of
thirteen persons, including her own, of the Human Rights Association.
58. The
Government denied the allegation, stating that the second applicant
had been sentenced to a fine because of a failure to comply with a
procedural obligation under Section 4 of the Act. She had not been
convicted on account of the aims, political stance or activities of
the Association.
- Article
11 of the Convention, in its relevant part, provides as follows:
“1. Everyone has the right to freedom
of peaceful assembly and to freedom of association...
2. No restrictions shall be placed on the
exercise of these rights other than such as are prescribed by law and
are necessary in a democratic society ... for the prevention of
disorder or crime ...”
A. Admissibility
60. The Court notes that
this complaint 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. Whether there was
interference
- The
Government maintained that there had been no interference with the
second applicant's rights under Article 11 of the Convention.
- The
Court considers that the second applicant's conviction on the
membership question constituted, in itself, an interference with her
rights under Article 11.
2. Was the interference “prescribed by law”?
- The
Government contended that the second applicant's conviction was
prescribed by law, namely the Associations Act, and that it had
pursued the legitimate aim of preventing disorder.
- The
second applicant maintained that the interference in question was not
prescribed by law, as at the material time the law stipulated that
only those who had been convicted of certain offences were not
entitled to be members of an association. However, she had had no
prior conviction which would have required the annulment of her
membership.
- As to the requirement of legality, according to the
Court's case-law, which is also mentioned above (paragraph 51), the
expression “in accordance with the law” refers to the
quality of the legislation in question. Domestic law must afford a
measure of protection against arbitrary interference by public
authorities with Convention rights, in respect of which the rule of
law, one of the basic principles of a democratic society, would not
condone unfettered powers being conferred on the executive.
Consequently, the law must indicate with sufficient clarity the scope
of any executive discretion and the manner of its exercise (see Hasan
and Chaush v. Bulgaria [GC], no. 30985/96, § 84,
ECHR 2000-XI). It must furthermore provide adequate and effective
safeguards against abuse, which may in certain cases include
procedures for effective scrutiny by the courts (see, Glas
Nadezhda EOOD and Elenkov v. Bulgaria, no. 14134/02, § 46,
11 October 2007).
- Turning
to the present case, the Court notes at the outset that the
interference with the second applicant's freedom of association
stemmed from Sections 4 and 16 of the Associations Act, which
provided that those who had been convicted of certain offences were
not entitled to become members of an association. The Court observes
that the second applicant contended that there had been no reason to
terminate the membership of the thirteen people, including her own.
She maintained that, although she had been taken into custody in
1999, she had been released and no criminal proceedings had been
brought against her at that time. The Court is persuaded by the
applicant's claim in the light of the Izmir Governor's letter of 10
July 2001 (paragraph 5 above). Consequently, the Government have not
demonstrated why the public authorities could otherwise have
legitimately required the annulment of the applicant's membership.
- This element leads the Court to conclude that the
second applicant was deprived of proper legal protection against
arbitrary interference with her freedom of association, as there was
a failure to meet the requirements of lawfulness. That being so, the
Court is again not required to determine whether this interference
pursued a legitimate aim or whether it was proportionate to the aim
pursued.
- There
has therefore been a violation of Article 11 of the Convention.
IV. 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.”
A. Damage
- Both
applicants requested compensation for the pecuniary damage resulting
from their obligation to pay a fine. Furthermore, they requested
EUR 1,000 and EUR 1,750, respectively, for non-pecuniary damage.
- The
Government contested these claims.
- As
regards pecuniary damage, the Court notes that it cannot speculate as
to what the outcome of proceedings compatible with Article 6 of the
Convention would have been. Accordingly, it makes no award under this
head (see Karahanoğlu v. Turkey, no. 74341/01, §
43, 3 October 2006).
- Moreover,
the Court considers that the finding of a violation constitutes in
itself sufficient just satisfaction for any non-pecuniary damage
suffered by the first applicant.
- As
regards the second applicant, in view of the violations found under
Articles 10 and 11 of the Convention, and ruling on an equitable
basis, the Court awards EUR 1,000 for her non-pecuniary damage.
B. Costs and expenses
- The
applicants claimed 2,750 new Turkish liras (YTL) and YTL 5,400
respectively for the costs and expenses incurred before the Court. In
respect of their claims, they referred to the Izmir Bar Association's
Scale of Fees.
- The
Government contested the claims.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, the applicants have
not substantiated that they have actually incurred the costs so
claimed. Accordingly, it makes no award under this head.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the remainder of the applications
admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention in respect of both applicants;
3. Holds that there has been a violation of Article
10 of the Convention in respect of the second applicant;
- Holds that there has been a violation of Article
11 of the Convention in respect of the second applicant;
- Holds that the finding of a violation
constitutes in itself sufficient just satisfaction for any
non-pecuniary damage sustained by the first applicant;
- Holds
(a) that
the respondent State is to pay the second applicant, within three
months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention,
EUR 1,000 (one thousand euros) in respect of non-pecuniary damage, to
be converted into New Turkish liras at the rate applicable at the
date of settlement and free of any taxes or charges that may be
payable;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicants' claim
for just satisfaction.
Done in English, and notified in writing on 18 March 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally
Dollé Françoise Tulkens Registrar President
