CASE OF DİRİ DIRI v. TURKEY
Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-2 - Presumption of innocence)
András Sajó;Françoise Tulkens;Guido Raimondi;Isabelle Berro-Lefèvre
5. The applicant was born in 1960 and lives in Trabzon. He used to work as a security guard in a security van for Akbank, a private bank in Turkey. 6. On 16 July 1998, on their return from one of the branches of the bank, the applicant and his two colleagues working in the same van realised that a sum of money (approximately 10,000 euros) was missing. 7. On 23 July 1998 the applicant was questioned by the police and on 3 September 1998 the Trabzon prosecutor filed an indictment formally charging the applicant and his two colleagues with the offence of breach of trust. 8. On 22 December 2000, while the criminal proceedings against the applicant and his colleagues were in progress, Law No. 4616 entered into force. Law No. 4616 provides for the suspension of criminal cases in respect of certain offences committed before 23 April 1999. 9. On 22 December 2003 the Istanbul Assize Court considered the following: “...[the applicant] has committed the offence of breach of trust. Nevertheless, the offence was committed before 23 April 1999 and it thus falls within the ambit of Law No. 4616. It is accordingly decided not to convict [the applicant] but to suspend the proceedings in accordance with Law No. 4616” 10. On 13 February 2004 the applicant appealed against the Assize Court’s decision, arguing that if the proceedings had not been postponed his innocence would have been proved. 11. On 8 June 2006 the Court of Cassation decided that the Istanbul Assize Court’s decision was not appealable because it was not a decision containing a definitive conclusion. It considered, however, that the applicant’s appeal could be examined as an “objection” and forwarded it to the Court of Cassation’s prosecutor for the necessary action to be taken. 12. On 25 August 2006 the Istanbul Assize Court examined the objection and rejected it. 13. On 30 August 1998 lawyers representing Akbank lodged a claim with the Trabzon Labour Court for the return of the missing money from the applicant and the two colleagues who had been working with him on the day it went missing. 14. On 17 June 2004 the Trabzon Labour Court ordered the applicant and his two colleagues to repay the missing money to the bank together with the “highest rates of interest applicable”. It considered, on the basis of the Istanbul Assize Court’s decision of 22 December 2003, that the applicant and his colleagues had “committed the offence” in question and embezzled the money. The applicant appealed against the decision and drew the Court of Cassation’s attention to the fact that he had not been convicted of any offence by the Istanbul Assize Court, which, in fact, had decided to suspend the proceedings. 15. The Court of Cassation quashed the decision in so far as it concerned the rate of interest applicable. On 19 July 2005 the Trabzon Labour Court decided, in line with the Court of Cassation’s decision, that a lower rate of interest should apply. An appeal lodged against that decision by the applicant was rejected by the Court of Cassation on 26 September 2005. 16. On 30 October 1998 the applicant’s contract of employment was terminated by his employer. The applicant and his two colleagues brought a case against the bank before the Trabzon Labour Court claiming compensation for their dismissal. 17. On 21 September 2004 the Trabzon Labour Court rejected the applicant’s claim for compensation for his dismissal. It stated as follows: “The case concerns the compensation claim for the dismissal of the plaintiffs who worked for the respondent bank and who, instead of bringing [a sum of] money they had collected from one of the bank’s branches back to their branch of the bank, embezzled it...According to the Istanbul Assize Court’s decision of 22 December 2003, the plaintiffs committed the offence of breach of trust that the proceedings were suspended in accordance with Law No. 4616...” 18. The applicant appealed against the decision, arguing that the criminal proceedings against him had been suspended by the Istanbul Assize Court. He further argued that the proper course of action for the Labour Court would have been to collect its own evidence, hear witnesses, and reach its conclusion on the basis of that evidence. 19. On 26 May 2005 the Court of Cassation quashed the Labour Court’s decision of 21 September 2004. It held that the Istanbul Assize Court’s decision had suspended the proceedings and not convicted the applicant. The Labour Court had erred in rejecting the applicant’s claim without hearing any of the witnesses proposed by him or obtaining expert reports, or even examining the Istanbul Assize Court’s case file. 20. On 13 October 2005 the Trabzon Labour Court reiterated its decision of 21 September 2004. In the opinion of the Labour Court, the applicant had caused financial losses to the bank by embezzling the money and knew that his employment had been terminated because of that. Any expectation on the part of the applicant of receiving compensation for his dismissal would therefore damage confidence in the judiciary and, for that reason, the Labour Court could not adhere to the Court of Cassation’s decision of 26 May 2005. 21. On 24 May 2006 an appeal lodged by the applicant against the Labour Court’s decision was rejected by the Court of Cassation, which considered that the Labour Court’s decision was in accordance with its decision of 26 May 2005. This decision was communicated to the applicant on 1 August 2006. 22. Law No. 4616, in so far as relevant, provides as follows: “4. In respect of offences committed before 23 April 1999 which are punishable by a maximum prison sentence of ten years: - where no criminal investigation has been commenced or no indictment has been filed, institution of prosecution shall be suspended; - where the criminal prosecution has reached the final stages but no definitive finding on the merits has been adopted or where a definitive finding on the merits has not yet become final, adoption of a definitive finding on the merits shall be suspended. If the person concerned is detained on remand, he or she shall be released. Documents and evidence concerning such offences shall be kept until the statute of limitations has been reached. In cases where an offence of the same kind or an offence which is punishable by a more severe prison sentence has been committed before the statute of limitations has been reached, a new prosecution shall be brought in respect of the previous offence which was the subject matter of the suspension or the suspended proceedings shall be resumed. If no offences of the same kind or an offence which is punishable by a more severe prison sentence has been committed before the statute of limitations has been reached, no public prosecutions may be brought against those who benefited from the suspension and the suspended proceedings shall be permanently terminated. ...”