YASAR v. TURKEY
Inadmissible
Christos Rozakis
The applicant is a Turkish citizen, born in 1942 in Konya, Turkey. He is a practising lawyer in İzmir. The applicant is represented before the Court by Mr Güney Dinç and Mr Nevzat Erdemir, both practising lawyers in İzmir. A. The facts of the case as submitted by the applicant may be summarised as follows. In 1991 the applicant represented five landlords in a special enforcement procedure for the eviction of tenants renting their building during which the judge agreed to stay the eviction in view of the defendant’s offer of security. The judge dismissed the applicant’s objection to his decision. On 11 May 1992 one of the applicant’s clients (T.K.) sent the judge a personal telegram stating that his decision was “very arbitrary, unheard of and biased”. The client stated that if the judge did not change his former decision, he would, under Article 573 of the Code of Civil Procedure (Hukuk Usulu Muhakemeleri Kanunu), hold him personally liable for any damage which may result. On 18 May 1992 the applicant and three of his other clients signed a warning letter which they sent to the judge through the intermediary of a public notary. The letter referred to the telegram dated 11 May 1992 as “our telegram” and alleged that the judge’s decisions were “contrary to clear and definite provisions of a Law which needed no interpretation” within the meaning of Article 573 § 2 of the Code of Civil Procedure. The warning letter also referred to Article 574 § 2 of the Code of Civil Procedure which requires that any judge who refuses to accept a petition or to commence proceedings be warned in a notarised warning letter before an action can be initiated against him. On 22 May 1992 the judge lifted his stay of execution decision. On the same day the defendants were evicted from the building. On 22 May 1992 the judge lodged a complaint with the Head Office of the Public Prosecutor of İzmir, accusing the applicant and his clients of insulting (hakaret) and threatening (tehdit) a judge in their telegram and notarised warning letter. The Public Prosecutor eventually brought charges against the applicant under Article 266 § 3 of the Turkish Criminal Code which makes it a criminal offence to insult or threaten a judge in the exercise of his judicial functions. The first hearing before the 1st Assize Court of İzmir was held on 28 March 1994. On that date, the judge happened to be sitting as a substitute member of the three-judge Assize Court. When it was time for the case in question to be heard, the judge took off his robe, left his seat for another substitute judge who came to replace him and sat in the place designated for complainants. During the hearing the judge was heard in his capacity of complainant. The applicant and his lawyers did not challenge the objectivity of the two other judges who were sitting with the judge prior to the hearing within the time-limit prescribed by Article 24 of the Code of Criminal Procedure. After the hearing, the judge took his seat as the substitute judge of the 1st Assize Court of İzmir for the hearings in the other cases listed for that day. At a further hearing and in reply to the closing submissions of the Public Prosecutor, the applicant’s lawyers argued that the applicant had not personally co-signed T.K.’s telegram of 11 May 1992 and could not therefore be held liable for its contents. He maintained that he had no intention to insult or threaten the judge, his only purpose being to protect the interests of his clients by requesting that the impugned decision be changed and to remind the judge of his personal liability under Article 573 § 2 of the Code of Civil Procedure if the decision remained unchanged. In their final submissions the applicant’s lawyers referred to the first hearing held on 28 March 1994. In this respect, they complained inter alia, about the fact that the complainant judge who had brought the criminal proceedings against him served as a member of the 1st Assize Court of İzmir in other cases. They argued that in the course of the proceedings the complainant wrongfully tried to influence his colleagues on the bench. Without making a motion for the disqualification of any of the judges (“hakimin reddi talebi”), they concluded their observations on this issue with the words “We convey this situation to the Court’s understanding of law and justice”. On 3 November 1994 the 1st Assize Court of İzmir acquitted the applicant on the charge of threatening the judge. However, it convicted him of insulting the judge contrary to Article 266 § 3 of the Turkish Criminal Code and sentenced him to five months’ imprisonment and a fine of 100,000 Turkish liras. The prison sentence was converted to a fine and suspended. The total fine imposed on the applicant was 833,333 Turkish liras. In its reasoning, the court held that the applicant’s reference to the telegram in the text of the notarised warning letter, with the words “our telegram”, was sufficient evidence to conclude that the applicant had been involved in preparing and sending the telegram. According to the court, the legal terminology used in the telegram indicated that it had not been drafted by a layman, but by a lawyer, namely the applicant. The court furthermore held that “a telegram” was not a method prescribed by law for warning judges. With reference to Article 138 § 2 of the Constitution (Anayasa), the court added that a judge could not be addressed in the exercise of his judicial powers in a manner intended to give him instructions. The court concluded, inter alia, that the sending of a notarised warning letter to the judge was not appropriate in the circumstances since the judge had not refrained from accepting petitions or commencing proceedings. One of the three judges on the 1st Assize Court of İzmir dissented on the basis that the applicant could not be held responsible for a telegram which he had not co-signed and that he had not intended to insult the judge. On 2 December 1994 the applicant’s lawyers appealed to the Court of Cassation (Yargıtay). They referred to the opinion of the dissenting judge. In his grounds of appeal the applicant relied on the argument that the trial court did not attach sufficient importance to the fact that immediately before his trial began the complainant judge had been sitting on the bench of that same court. They also requested a hearing before the Court of Cassation. On 18 May 1995 the Office of the Chief Public Prosecutor of the Court of Cassation submitted in writing its closing opinion to the 4th Chamber of the Court of Cassation for Criminal Matters. The Office of the Chief Public Prosecutor submitted that the applicant’s reference in the text of the notarised warning letter to the words “our telegram” was not sufficient evidence to conclude that the applicant had in fact written the telegram which, moreover, had not been signed by him. The Chief Public Prosecutor advised the Court of Cassation that the applicant’s conviction should be quashed. This written opinion was not served on the applicant. On 7 July 1995 the 4th Chamber of the Court of Cassation for Criminal Matters rejected the applicant’s request for a hearing and upheld the judgment of the 1st Assize Court of İzmir. It found that the applicant was able to submit and have considered at his trial all evidence in his defence to the charges. The court concluded that the reasoning in the trial court’s judgment was sufficient, consistent and based on a proper evaluation of the evidence. B. Relevant domestic law Chapter 3 of the Turkish Code of Criminal Procedure contains provisions governing the disqualification of a judge. Article 24 provides: “A motion for disqualification on grounds of suspected partiality of a judge may be made at any time before the final decision to open the trial or the accusation is read, and in the event of an appeal the motion to disqualify an appellate judge may be made at any tine before the presentation of the rapporteur’s report in those cases where there is a hearing, and in cases where there is no hearing, the motion may be made at any time before the initiation of the appellate review. Where the circumstances entitling one to move for disqualification arise subsequent to the aforementioned ones, the motion may be made at any time prior to the final disposition of the case.” According to Article 25 of the Code: “A motion for disqualification may be made by a petition to the court or by making a declaration to the clerk of the court having him prepare a formal petition in that respect. The party seeking the motion is obliged to submit proof of the grounds upon which disqualification is sought and a mere statement of belief is insufficient proof. The court may require a judge whose disqualification is sought to comment on the particulars which furnish the basis of the motion, and the judge must set forth his conclusions as to the sufficiency of these particulars.” Article 26 of the Code states, inter alia: The motion to disqualify a judge is decided by that court of which the challenged judge is a member. However, if the non-participation of the challenged judge results in the court lacking a sufficient quorum and the court is a court of first instance, the Aggravated Felony court in the same jurisdiction shall decide on the matter ...”.