CASE OF ÖZMURAT İNŞAAT ELEKTRİK NAKLİYAT TEMİZLİK SAN. VE TİC. LTD. ŞTİ. v. TURKEY
Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Public hearing)
Jon Fridrik Kjølbro;Julia Laffranque;Ledi Bianku;Paul Lemmens;Robert Spano
5. The applicant is a construction company, which was established in 2003 and has its seat of business in Mersin. 6. In 2005, after having obtained a permit to operate a mine, the applicant opened a mine in a plot of land of 8,700 m² which it owned. 7. During the course of its mining activities, on 31 January 2006 an audit commission under the Mersin Provincial Administration conducted an inspection. Subsequently, the commission drew up a report, proposing that the applicant should be ordered to pay 131,250 Turkish liras (TRY) for quarrying substantial amounts of sand in the neighbouring plots of 5,000 m², outside of its licensed area. 8. On 8 March 2006 the Tarsus Provincial Administration informed the applicant that it had decided to impose the proposed administrative fine pursuant to Article 19 of the Regulation Concerning Group A Mines (A Grubu Madenlerle İlgili Uygulama Yönetmeliği). 9. On 8 February 2006 the applicant company’s president, Ü.T., filed a complaint with the Mersin Public Prosecutor’s office, stating that one of the auditors in the commission, M.A.L., had told him that the fine had initially been calculated as TRY 500,000 and that he had reduced that amount. Ü.T. claimed that M.A.L. had asked him to pay TRY 10,000 in return and had threatened to have his mine closed if he refused to do so. He indicated that M.A.L. had acted together with a certain F.G., an official at the Provincial Administration. 10. In his police statements on 9 February 2006, Ü.T. described his conversations with M.A.L. in detail. He noted, inter alia, that after the inspection of the audit commission, he had conducted another inspection with an official from the Directorate of Land Registration, and had calculated that he had trespassed on the neighbouring plots by only 400 metres. He also explained that he had acted as an undercover agent in line with the directions of the Public Prosecutor to catch the perpetrators in flagrante delicto. Accordingly, the police gave him TRY 10,000 and noted down the serial numbers of the banknotes. He stated that in line with the instructions of M.A.L. and F.G., he had given the money to a third person, who had received it in the name of the other two. 11. Subsequently, on 16 February 2006 the Mersin Public Prosecutor issued an indictment against M.A.L. and F.G., accusing them of extortion. 12. On 13 May 2011 the Mersin Assize Court found the two officials guilty as charged. The appeal proceedings with regard to that judgment are still pending before the Court of Cassation as of September 2017. 13. In the meantime, on 17 April 2006 the applicant had filed an objection with the Tarsus Magistrates’ Court and requested a stay of execution of the fine. It informed the court of the criminal proceedings pending against certain officials involved, in which they were being tried for extortion. By a subsequent petition dated 5 June 2006, the applicant also requested the court to hold an oral hearing, to carry out an on-site examination, and to hear its witnesses in order to better evaluate the credibility of the inspection report the fine was based on. 14. On 13 June 2006, the Tarsus Magistrates’ Court rejected the applicant’s requests for an oral hearing and on-site examination without indicating any reasons for its decision. Relying on the inspection report drawn up on 31 January 2006, the court rejected the applicant’s objection. 15. The applicant objected to that decision, arguing that the fine had been unlawfully imposed on it and that the Magistrates’ Court had failed to adequately assess the case as it had not held a hearing. It drew the court’s attention once again to the criminal proceedings against the officials involved. 16. On 10 July 2006 the Tarsus Assize Court rejected the applicant’s objection without holding a hearing. 17. On 7 March 2008 the administration seized the plot of land where the applicant conducted mining activities due to the latter’s failure to pay the administrative fine.