CASE OF M.T.B. v. TURKEY
Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing)
Jon Fridrik Kjølbro;Ledi Bianku;Nebojša Vučinić;Robert Spano;Stéphanie Mourou-Vikström
5. The applicant was born in 1953 and lives in Istanbul. 6. On 10 May 1999 a certain İ.Ö. lodged a criminal complaint against the applicant, claiming that he had issued an uncovered cheque dated 26 April 1999. 7. On the same date the Bakırköy public prosecutor’s office indicted the applicant in the Bakırköy Criminal Court of First Instance under section 16 (1) of Law no. 3167 – in force at the material time – for issuing an uncovered cheque. The cheque bore the applicant’s name underneath the name of the company of which he was president of the executive board, and the address of the company on the cheque was indicated as being “... Bakırköy / Istanbul”. 8. On 2 September 1999 the trial court held a preparatory hearing (tensip) and ordered that a summons be served on the applicant. 9. On 6 October 1999 the trial court sent a copy of the bill of indictment, together with the notice of the first hearing, to the address written on the cheque. On the same day the trial court asked the Bakırköy public prosecutor’s office to confirm the applicant’s identity and enquire about his full address and provide it with this information. 10. On 7 October 1999 the summons was returned on the grounds that the applicant had left that address, leaving “P.K. [post box] 5 Bakırköy” as an alternative address. 11. Within the context of the enquiries to find out what the applicant’s new address was, it appears that the Bakırköy public prosecutor’s office asked the police and the mayor of the neighbourhood (muhtarlık) to collect information. In that connection, the police went to the address written on the cheque and concluded that the applicant had left it. According to the information received from the mayor of the neighbourhood, the applicant had left that address without giving any notification. 12. On 14 February 2000 the trial court held the first hearing in the absence of the applicant. The court decided to authorise his detention in absentia (tevkif müzekkeresi) with a view to obtaining his statements, under Article 223 of the former Code of Criminal Procedure, in force at the material time. 13. Between 14 February 2000 and 13 October 2004 the trial court waited for the detention order to be executed. 14. On 11 October 2001, while the criminal proceedings were ongoing, another court in Istanbul, namely the Bağcılar Criminal Court of First Instance, sent a summons to the applicant’s home address – “... Avcılar / Istanbul” – requiring him to give evidence as a complainant in another set of criminal proceedings. 15. On 16 July 2001, in another set of criminal proceedings, the Küçükçekmece public prosecutor’s office delivered a decision not to prosecute, in which it also indicated the applicant’s address as being “... Avcılar / Istanbul”. 16. On 26 May 2003 the trial court once again attempted to serve the summons at the address written on the cheque, but failed to do so for the same reasons. 17. On 21 June 2004 the trial court decided to serve the summons at the same address, in accordance with section 35 (4) of the Notification Act (Law no. 7201). 18. On 13 October 2004 the trial court convicted the applicant as charged and sentenced him to a fine (ağır para cezası) of 500,000,000 Turkish liras (TRL). That judgment was served on the applicant on 30 October 2004. The seven-day time-limit for lodging an appeal against the judgment expired, and in the absence of an appeal it became final. 19. On an unspecified date in 2006 several police officers from the Firuzköy police station in Avcılar, Istanbul, went to the applicant’s apartment with an arrest warrant and invited him to attend the police station. At the police station, the applicant was informed that an arrest warrant had been issued against him following his conviction by a criminal court, and that he would be put in prison unless he paid the 500 Turkish liras (TRY) fine previously imposed by the court. The applicant, who was unaware of any criminal proceedings against him, requested the details of the judgment in question and applied to the registry of the Bakırköy Criminal Court of First Instance for further information. 20. Upon examining the relevant case file at the registry of the first-instance court, the applicant discovered that he had been charged and convicted in absentia for issuing an uncovered cheque on 27 April 1999 and sentenced to a fine of TRY 500, an amount corresponding to the amount of the cheque. Moreover, the judgment, which had been delivered on 13 October 2004 by the Bakırköy Criminal Court of First Instance, had become final in the absence of an appeal. 21. On 5 May 2006 the applicant lodged an appeal with the Bakırköy Criminal Court of First Instance, challenging the judgment in question on the grounds that it had been delivered in his absence and the accusations against him were ill-founded. He emphasised that he had not received any notice of the criminal proceedings or the judgment, not even when he had gone to the Bakırköy public prosecutor’s office three months prior to the delivery of the impugned judgment to obtain his criminal record details for an unrelated matter. He added that the claimant in the criminal proceedings, İ.Ö., was his former girlfriend, and that he had given her a blank cheque as a guarantee that he would discharge their joint debt to a bank. They had in fact signed an official document on 12 March 1998 in the presence of a lawyer confirming that İ.Ö. would only be entitled to cash this cheque if the applicant failed to discharge their joint debt to the bank. Upon settling the debt with the bank, the applicant had requested that İ.Ö. return the blank cheque to him, but İ.Ö. had failed to do so, alleging that she had lost it. He had accordingly reported the cheque as missing to the bank, and had asked to be notified in the event of any attempts to cash it. On 27 April 1999, very shortly after his move to a new address, his former girlfriend had apparently attempted to cash the cheque, and when the cheque had not cleared, had brought a criminal complaint against him. Despite his instructions, he had not been contacted by his bank when the cheque in question had been deposited by İ.Ö., nor had he been advised that the cheque had bounced. 22. On the same day the Bakırköy Civil Court of First Instance issued a summary judgment dismissing the applicant’s appeal as lodged out of time. It held that the judgment of 13 October 2004 had been duly served on him on 30 October 2004 in accordance with section 35 of Law no. 7201, and the appeal should therefore have been submitted by 8 November 2004. 23. On 22 May 2006 the applicant appealed against the summary judgment, reiterating the arguments he had previously submitted to the Bakırköy Civil Court of First Instance. He emphasised that, although his accurate address details could easily have been obtained from the mayor of the neighbourhood, the judgment of October 2004 had been served at the address which his company had moved out of on 15 April 1999. In his absence, it had apparently been posted on the door of the building. He therefore requested that the judgment which had been delivered in his absence be quashed or rectified. 24. On 21 September 2006 the Principal Public Prosecutor at the Court of Cassation delivered her opinion on the applicant’s appeal, where she requested that the first-instance court’s judgment of 5 May 2006 be quashed on account of the unlawful service of the initial judgment rendered in his absence. 25. On 2 October 2006 the Court of Cassation upheld the lower court’s decision, holding that the judgment in question had been duly served on the applicant in accordance with section 35 of Law no. 7201 on Notifications. 26. On 8 November 2006, in accordance with Article 308 of the Code of Criminal Procedure, the applicant requested that the Principal Public Prosecutor at the Court of Cassation lodge an application to have the Court of Cassation’s decision set aside. 27. It appears that the applicant was imprisoned on 24 November 2006 on account of his failure to pay the fine of TRY 500 imposed by the Bakırköy Criminal Court of First Instance on 13 October 2004. 28. On 26 November 2006 the applicant was conditionally released. 29. On 1 December 2008 the Principal Public Prosecutor at the Court of Cassation rejected the applicant’s application under Article 308 of the Code of Criminal Procedure, maintaining that the applicant’s arguments had already been examined by the Court of Cassation in its decision of 2 October 2006.