SECOND SECTION

CASE OF DÄ°LÄ°PAK AND KARAKAYA v. TURKEY

( Applications nos. 7942/05 and 24838/05 )

JUDGMENT

[Extract]

STRASBOURG

4 M arch 2014

This judgment may be subject to editorial revision.

In the case of Dilipak and Karakaya v. Turkey ,

The European Court of Human Rights ( Second Section ), sitting as a Chamber composed of:

Guido Raimondi, President, Işıl Karakaş, Peer Lorenzen, András Sajó, Helen Keller, Paul Lemmens, Robert Spano, judges, and Stanley Naismith , Section Registrar ,

Having deliberated in private on 4 February 2014 ,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1 . The case originated in two applications (nos. 7942/05 and 24838/05 ) 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 Abdurrahman Dilipak and Mr Hasan Karakaya (“the applicants”), on 28 January 2005 and 16 June 2005 respectively .

2 . Mr Dilipak was represented by Mr S. Döğücü, a lawyer practising in Istanbul. Mr Kara kaya was represented by Mr A Pac c ı, another lawyer practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent.

3 . The applicants alleged , in particular, that their right of acc es s to a court had been infringed, as had their right to freedom of expression .

4 . On 6 June 2009 the applications were communicated to the Government .

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5 . The applicants were born in 1949 and 1953 respectively and live in Ä°stanbul . They are both journalists who were working for the Akit daily newspaper at the material time.

A. Background to the case

6 . On 25 June 2000, on the occasion of the funeral of Admiral Güven Erkaya, the former Commander-in-Chief of the navy and member of the National Security Council, M r Karakaya publi shed an article in the Akit daily newspaper, wh ose front-page headline read “We will not waive our rights”. In the article the journalist criti cised the late Admiral for the role he had played in the politi cal process triggered by the meeting of the N ational Security Council o n 28 February 1997, which some observers have called a “post- modern coup d ’ é tat ” .

7 . On 26 June 2000 M r Dilipak also published an article in the same newspaper on Admiral Erkaya , critici s ing his action s .

B. Proceedings before the region al court

8 . On 29 September 2000 the deceased ’ s famil y brought a civil action for damages in the Ankara Civil Court of First Instance (“the Civil Court ”) against the applic ants and the company owning the newspaper . The family also lodged a complaint with the Istanbul public prosecutor ’ s office .

9 . When bringing their civil action, the Erkaya family gave the newspaper ’ s registered office as the defendants ’ address .

10 . However , the posta l service did not succeed in serving the summons and the statement of claim on the applic ants at this address , as they were not to be found there . This fac t was confirmed by the elected neighbourhood leader ( muhtar ) , who countersigned the report noting that the summons could not be served on the relevant persons .

11 . Th e Civil Court then asked the police to ascertain the applic ants ’ addresses .

12 . According to the Civil Court , after the police had completed their inquiries, they inform ed it of two addresses in Istanbul : one in the Aksaray neighbourhood ( Küçüklanga Caddesi no. 103 ) , in respect o f M r Karakaya , and the other in the Mecidiyeköy neighbourhood ( Mecidiye Caddesi no . 7/50 Çavuşoğlu İş Merkezi ) , in respect o f M r Dilipak.

13 . The decision was subsequently taken to send fresh summonses to these addresses .

14 . The record of the service of M r Karakaya ’ s summons stated that it had been handed to a certain N.G., describing him as an “ authorised employee ” ( yetkili personel ).

15 . In the case of Mr Dilipak, the summons could not be served on the ground that he was unknown at the stated address .

16 . The Civil Court decided to serve the summons via publication in the press on the ground that it was impossible to ascertain Mr Dilipak ’ s address .

17 . On 21 January 2003 , in the absence of the defendants , who had never a ppear ed at the hearings, the Civil Court delivered a judgment ordering them jointly to pay the sum of 30 , 000 Turkish lir as (TRY), equivalent to some 17, 000 euros (EUR), together with interest in arrears from 25 June 2000 , for non-pecuniary damage .

18 . Th e Civil Court considered that in his article M r Dilipak had insinuated that the d eceased would pay for his wrongdoing and that justice would be done The Civil Court noted that he had used the phrase “ may your land be abundant” , which was reserved for non- M us lims . I t cited the following passage in particular :

“Whatever you do, do not remind me of the injunction ‘ do not speak ill of the dead ’ . This injunc tion does not apply to Hitler, Mussolini or Stalin . Otherwise the K oran would not say what it does about Nimrod and Pharaoh . Güven Erkaya was certainly not Hitler, but nonetheless he holds a particular place in the consci ousness of our people . ”

19 . In the case of M r Karakaya , the Civil Court held that he had insinuated that the circumstances surrounding the Admiral ’ s death – particularly his cancer – were but his due for the suffering which he had infli cted on the people . I t noted that the journalist had also written that this death had not saddened him , that he would not attend the Admiral ’ s funeral and that he would not waive his righ ts over him . [1] I t also noted the following passage:

“He made the people weep, but now his family are weeping ... He invented the lie that Koranic school students swore an oath to combat the secular system and Atatürk. The Koranic schools may now be closed, b u t so are Erkaya ’ s eyes . ”

20 . The Civil Court conclu ded that the applic ants had “ exceeded the limits of criti cism by launching a person a l attack on the deceased on the ground of his functions ” , especially since he had been a “ valorous army command er who [ had ] served the nation ” .

21 . Furthermore , i t pointed out that inquiries had been carried out into the d e fendants ’ economic and social situation and that the turnover of the company owning the Akit newspaper had been ascertained from the tax authorities .

22 . The judgment was not served on M r Karakaya because he no longer lived at the latest address known to the registry ( Küçüklanga Caddesi ). As he had not informed the court of his change of address , the judgment was deemed to have been s e rv ed in accordance with section 35 of the N otification Act ( see paragraphs 57-66 below ).

23 . The record drawn up by the notify ing officer stated that a local resident , R.Ö., had been questioned about M r Karakaya ’ s new address, albeit in vain . A s tamp used by the local muhtar indi cates that the address of service was a business address which had not been recorded in his fi les .

24 . In the case of M r Dilipak, the judgment was served via publication in a newspaper on 14 April 2003. The judgment became final on 29 May 2003.

25 . On 3 June 2003 the Civil Court added an annotation to its judgment to the effect that it was fin al ( kesinleÅŸme ÅŸerhi ).

26 . On 9 June 2003 the Erkaya family submitted a copy of the final judgment to the Ankara Enforcement Office and brought enforce ment proceedings . On the same day the pay ment orders were drawn up and posted to the applic ants ...

27 . M r Dilipak re ceived his payment order at his home address in the Acıbadem neighbourhood in Kadıköy (Istanbul). M r Karakaya also re ceived his order at his home address in Beylikdüzü (Istanbul) .

28 . On an unspecified date the applic ants sought leave from the Civil Court to appeal on points of law against the judgment of 21 January 2003, observing that they had been apprised of the latter on recei pt of the aforementioned pay ment ord er s .

29 . On 17 June 2003 the Civil Court rejected the applicants ’ a ppeal ( temyiz dilekçesinin reddi ) on the ground that the judgment had become fin al .

C. Proceedings before the Court of C assation

30 . The applic ants lodged an appeal on points of law against the 17 June 2003 decision .

31 . M r Dilipak c hallenged the lawfulness of serving the documents in question by publication in the press , contending that this procedure could only be used after all other methods had failed . He pointed out that he had been residing at the same address for more than twenty years, and submitted that the requisite steps had not been taken to find his address . In his view, his address could have been easily ascertained by means of a s imple letter to the Journalists ’ Association ( Gazeteciler Cemiyeti ) o r to the D irect orate General of Press , P ublications and I nformation (a department operating under the Prime Minister , with responsibility for issuing press passe s ).

32 . He pointed out that the judgment had become enforceable on 3 June 2003 and that the pay ment ord er had been drawn up and sent to his home within one week of that date . Furthermore, the address had been given to the Department for the Execution of Sentences by counsel for the Erkaya family . He specified that the latter had long been in possession of his address and had deliberately refrained from saying so until the judgment had become fin al .

33 . Mr Dilipak conclu ded that neither the summons nor the judgment had been validly served on him .

34 . M r Karakaya, for his part, complained that the documents had been served at ano the r person ’ s address rather than his own .

35 . He pointed out that in accordance with the law , when judicial documents were serv ed at a business address, they could be handed over to one of the addressee ’ s permanent employees if, and only if, the addressee was absent. He submitted that in the present case, the documents had been serv ed at a business address but that the person mentioned in the record had n ot been one of his employee s . Moreover, the record did not mention the reason why the documents had not been handed over to him in person .

36 . L astly , he found it surprising that the claimants had considered throughout the proceedings that his address was “ Küçüklanga Cadd esi no: 103 – Aksaray/Istanbul ” and that , less than a week after the judgment had become fin al , they had su ddenly found his real address and given it to the Department for the Execution of Sentences .

37 . On 24 December 2003 the Court of C assation dismissed on the merits the appeal on points of law against the impugned judgment on the ground that the latter was “ in conformity with procedural and statutory law ” .

38 . On 13 September 2004 Mr Dilipak submitted a request for rectification of the judgment .

39 . He submitted that the Civil Court had not made any serious attempt to find his address .

40 . Mr Dilipak pointed out that the court had ind eed submitted a request to the police and that the report sent to the court had indicat ed one address f or each of the other two defendants , but that n either of these addresses had concerned him . He specified that the document in the case file co ntain ed a handwritten entry “ Mutakil San Is. Ad.Dem, M.Köy ” alongside his name, that the author of this entry was unknown, and that the judge had, strangely enough, considered that it referred to the address “Mecidiye Cad. no: 7/50 Cavuşoğlu Iş Merkezi Mecidiyeköy Istanbul ” , to which he had decided to send the summons made out to him .

41 . Explaining that according to the law and the case-law of the Court of Cassation the court should have made enquiries among the relevant government departments and institutions and not confined itself to police searches, he accused the court of having failed to take the necessary action. In this connection , he produced letters from the civil status register , the Press Council ( Basın Konseyi ), the Journalists ’ Association , the D irect orate General of Press , P ublications and I nformation, a nd an employers ’ organisation (MÜSIAD) , stating that according to their fi les , he was a long -term resident of the Acıbadem neighbourhood in Istanbul. He also submit ted a document from the elected leader of the Acıbadem neighbourhood to the effect that he had been living at the sa me address in th at neighbourhood since 22 July 1989.

42 . M r Dilipak also presented a letter from the Istanbul Governor ’ s Office confirming that he had been assigned a bodyguard . I n his view this meant that his address was known to the police.

43 . Moreover , the Social Security Department, the Land Registry and the Municipal Council had all been aware of his address .

44 . He also submitted that the Erkaya family must have known his address because i t had been mentioned in the case file for the criminal proceedings which they had jointed as intervening partie s , the summons had been sent to him at that address and he had stated the same address at his hearing before the Ankara Criminal Court .

45 . He based his whole line of reasoning on the case-law of the Court of C assation, including a judgment delivered by its Joint C ivil Chambers on 29 September 1999 (1991/1-609 E – 1999/744 K). I n this judgment the court had s tressed the importance of judicial noti ces , which were closely li nked to the rights of the d efence . It had held that efforts to ascertain an address should be very wide-ranging, cover ing e nquiries to government bodies such as municipal councils, civil status and land registries and various professional bodie s, and that such action should not be confined to police investigations.

46 . On an unspecified date M r Karakaya also submitted a request for rectification of the judgment .

47 . On 14 February 2005 the court dismissed the applic ants ’ requests on the ground that the conditions had not been met for rectif ying the judgment .

48 . On 5 February 2007 the Ministry of Justice invited the Public Prosecutor at the Court of Cassation to lodge an appeal in the interests of the law against the judgment of 21 January 2003 on the ground that the rules on notification of judicial documents had been infringed. He backed up his argument s by citing the aforementioned judgment adopted on 29 September 1999 by the Joint Civil Chambers of the Court of C assation.

49 . On 2 April 2007 the Court of C assation dismissed the appeal in the interests of the law lodged by the Public Prosecutor ’ s Office .

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E. Request to re open proceedings

54 . On 3 August 2012 the applic ants applied for the reopening of the proceedings before the Ankara Civil Court of First Instance a nd a stay of execution of the judgment of 21 January 2003. In support of their application , they submitted that criminal proceedings for an attempted coup d ’ é tat had been instituted against senior army officers who had been on the N ational Security Council i n February 1997, a nd that those concerned had been taken in to pre-trial detention . According to the applic ants, this was a new fact that had been u n kn o wn to the court at the time of the judgment . The y pointed out that this fact was liable to cast doubt on the court ’ s use of such laudatory expressions a s “ valorous army command er who served the nation ” in connection with the deceased . Furthermore, the applicants submitted that the applications which they had lodged with the Court were currently under examination and that a finding of a violation of the Convention was a ground for reopening the proceedings . T hey therefore invited the court to order a stay of execution of the judgment until the Court had heard and determined the ir applications .

55 . By an ord er of 16 August 2012, the Civil Court decided to su spend the enforcement procedure on condition of pay ment of a su r ety of TRY 164, 000 ( approximately EUR 74 , 500 at the time ).

56 . No information has been provided on t he action taken on this ord er .

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Provisions on notification

57 . Section 17 of the Notification Act ( Law n o. 7201 ) provides that notification of persons exercising their occupation or trade on a permanent basis at the same workplace can, in their absence, be effected vis-à-vis one of their permanent employees .

58 . Section 28 of the Act provides :

“The address of a person on whom it has not been possible to serve a document and whose residence, address or workplace has proved untraceable, in the light of the foregoing provisions, shall be deemed unknown.

If the person ’ s address is unknown , the notifying officer shall inform the elected neighbourhood or village leader of the situation . The latter must then add an entry to this effect to the notification record . Additionally , the authority from which the notification emanates must make enquiries about the person ’ s address to the government departments and institu tions which it considers relevant and request a police investigation . ”

59 . Before 19 March 2003 t he third sentence of this section had been worded as follows :

“ Additionally , the authority from which the notification emanates may, if it deems necessary , make enquiries about the person ’ s address to the government departments and institutions and request a police investigation . ”

60 . Section 35 of the same Act read s as follows :

“ Where a person on whom a document has been served personally or at his or her home address in accordance with legally established procedures change s address , he or she must without delay communicate the new address to the judicial authority from which the notification emanated . In such cas es all subsequent notifications must be effected at the new address .

Where [ this ] person has failed to communi cate his or her new address and the notifying officer has been unable to ascertain this new address , a copy of the document to be served shall be posted at the entr ance to the building corresponding to the old address ; the date o n which the copy is posted shall be treated as the date of notification.

Subsequent notifications effected in this way at the old address shall be deemed to have been effected vis-à-vis the addressee . ”

61 . This system was slightly amended in 2011 to take ac co un t of the dat abase known as the “ ad d ress recording syst e m ” n ew ly established by the D irect orate G e n e ral of C ivil Status and C itiz en ship of the M inist r y of the Int e ri o r in order to facilit ate administrative procedure s.

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THE LAW

I. JOIN DER OF THE CASES

67 . The Court notes that the two applications are similar in terms of the facts , the pri mary complaints and the substantive issues which they raise . Consequently it considers it appropri ate to join them in pursuance of Rule 42 § 1 of the Rules of Court .

II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

68 . Relying on Article 6 § 3 of the Convention, the applic ants alleged that their right to a court ha d been violated.

69 . The Government contested that argument.

70 . The Court reiterates that, being the master of the characterisation to be given in law to the facts of a case, it does not consider itself bound by the characterisation given by the parties (see , among other authorities , Remzi Aydın v . Tur key , n o. 30911/04, § 44, 20 February 2007). In the present case it consider s that it should examine the complaints in the light of A rticle 6 § 1, the relevant parts of which provide :

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ... ”

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B. Merits

1. As regards Mr Dilipak

a) The p arties ’ submissions

72 . Th e first applicant complained that he had not been informed of the action brought against him before the Ankara Civi l Court of First Instance and that he had been unable to t a ke par t in the ensuing proceedings. He complained that the Civil Court had not been sufficiently diligent in seeking his address and had resorted too readily to the extreme solution of notification via publication in the press. He submitted that his address could have easily been found if the court ha d made enquiries with the relevant government departments and profession a l bodie s. His status as a journalist was very well known, and he accused the Civil Court of having fail ed to contact the D irect orate G e n e ral of P ress , P ublications and I nformation , for example, despite the fact that this department was responsible for issuing press passe s .

73 . He also claimed that his ad d ress was known to the clai m ant party and that the latter had a cted in bad faith on the grou n d s that the sa me lawyers had repr e sent ed them during the civil and crimi nal proce edings and that his ad d ress had been pe rf ec t ly well known during the criminal proc ee d ings .

74 . H e argu ed that there had been a veritable conspiracy against him . In this connection, he pr odu c ed documents which he s ubmitte d were from the Balyoz case file ( f or a sum mary of this case see Doğan v . Tur key (d e c.), n o. 28484/10, 10 Ap ril 2012 , o r Çakmak v . Tur key (d e c.), n o. 58223/10, 19 February 2013) , in which he had apparently been d e sign ated as a “ target ” on the sa me basis as other journalist s said to have oppos ed a military coup d ’ é tat .

75 . Th e Government submitted that the right to take part in proceedings was not absolu te and could be subject to reasonable restriction s in the interests of the proper administration of justice. They contended that in the present case the Civil Court had used all the resources available to it to inform the applicant of the action brought against him: the search of the premises deemed to be his home address, the request for a police search, the notice posted in the court entrance hall and, lastly, the publication in a national daily newspaper.

b) The Court ’ s assessment

78 . Furthermore , the Court r eiterates that it has already examined , in cases concerning criminal proceedings ( see , fo r example , Sejdovic v . Italy [GC], n o. 56581/00, § 82, E CH R 2006 ‑ II), that although proceedings which take place in the accused ’ s absence are not of themselves incompatible with Article 6 of the Convention, a denial of justice nevertheless undoubtedly occurs where a person convicted in absentia is unable subsequently to obtain from a court which has heard him a fresh determination of the merits of the charge, in respect of both law and fact, where it has not been established that he has waived his right to appear and to defend himself (see Colozza , cited above, § 29, and Einhorn v. France (dec.), no. 71555/01 , § 33, ECHR 2001-XI), o r that he intended to escape tria l ( see Medenica v . S witzerland , n o. 20491/92, § 55, E CH R 2001 ‑ VI).

79 . The Court also r eiterates that while neither the letter n or the sp i rit of A rticle 6 of the Convention prevent a person from waiving , of his or her own free will, either expressly or tacitly, the safeguards on a fair trial ( see Kwiatkowska v . Italy (d e c.), n o. 52868/99, 30 November 2000), a waiver of the right to take part in the hearing must, if it is to be effective for Convention purposes, be established in an unequivocal manner and be attended by minimum safeguards commensurate to its importance ( see Poitrimol v . France , 23 November 1993, § 31, Series A n o. 277 ‑ A) ; nor must it not run counter to any important public interest ( see HÃ¥kansson and Sturesson v . Sweden , 21 February 1990, § 66, Series A n o. 171-A).

82 . The Court notes that there is nothing in the case file to show how the police went about finding the applicant ’ s supposed address or what other police action was taken . Nor did the Government mention this subject in their observations.

83 . The Court note s that the Civil Court would not appear to have looked into the steps taken by the police or considered the advisability of further action before resorting to notification via publication in the press , despite the f act that the latter approach often has negative consequences for the addressee .

84 . In this context , it observe s that no attempts were apparently made to contact the civil status registry , professional bodie s o r the department responsible for issuing press passes, despite the fact that it was well known that the applicant was a journalist .

85 . I n short , the Court has found no evidence that the action that co uld legitimately and reasonably have be en expected of the authorities was ever taken ; indeed , all the evidence points to the contrary . The Court considers it quite dis concer ting that as soon as the judgment was ready for execution , the applicant ’ s rea l address was found without any difficulty , less than a week after th at judgment had become fin al .

86 . Accordingly , the Court considers that the applicant was not given the opportunity to particip ate in the proceedings against him and to defend his interests .

88 . Accordingly , it remains to be determined whether domestic law afforded the applic ant, with sufficient cert ainty , an opportunity to appear at a new trial .

89 . In the instant case, the Court observe s that three appeals were lodged in order to achieve that aim .

91 . Secondly , the Ministry of Justice ord ered a n appeal to be lodged in the interests of the law . As its name would suggest, however, this re medy is only relevant from a legal perspective , inasmuch as its aim is to ensure consistency of the law by eliminating an unlawful decision. In deed, the possible setting aside of a judgment in such cases has no effect on the situation of the parties to proceedings . At all events , the Court note s that in the instant case this re medy was dismissed by the Court of C assation.

92 . Thirdly , the applic ant recently lodged an application to reopen proceedings . The Court observes, however, that this application is still pending and that the court applied to has not yet adjudicated on its admissibility. It also notes that the conditions for using such a re medy do not include the inability of one of the parties to take part in the initial proceedings because of lack of notification o r of any other factor invalidating the notification. It further note s that the applic ant based his application not on this circumstance but on the discovery of new facts germane to the merits of the case, that is to say t h e instigation of a criminal investigation in respect of the members of the N ational Security Council who were involved in the decisions taken in the wake of the meeting of 28 February 1997.

93 . Consequently , the Court considers that the application to reopen proceedings will not afford the applic ant, with sufficient cert ainty , an opportunity to appear a t a new trial to present his defence . Moreover, it notes that the Government ha ve never stated the contrary .

2. As regards M r Karakaya

( a) The parties ’ submissions

96 . Th e second applic ant com plain e d that he had not been inform e d of the action brough t against him by the Ankara Civil Court of First Instance and that he had been given no oportunity to take part in the ensui ng proc ee dings . He alleged that the Civil Court had not shown suffi cient diligen ce in seeking his address and had conside r ed val id the service of documents a t an address other than his actual home address, on an individu al who was not his employee . He also submitted that his address could have been ascertained from a number of government departments or from the court which had ruled on the criminal a s p ect of the case .

97 . The Government contended that there had been no infringement of the applic ant ’ s rights because they took the view that he had been validly notifi ed of the proceedings against him .

( b) The Court ’ s assessment

98 . The Cour t r epeats the princip l es which it reiterated above (see paragraph s 76 to 79 above ).

99 . It observe s that the Ankara Civil Court of First Instance followed the same approach as for the first applicant by first of all attempting to serve the summons and statement of claim at the address provided by the claimant party and th e n , since the second applic ant was untraceable at this address , deciding to order a police search . The Court notes that the Civil Court sent the second notification to the address supplied by the police, that in the addressee ’ s absence it was handed over to a certain N.G. , who was d escribed as an “ authorised employee ” of the applic ant, and that the notification thus performed was considered to have been effected vis-à-vis the applic ant. The Court also notes that when the judgment had to be served on the applic ant at the end of the proceedings , the sa me address was u sed, and as the applic ant was not to be found at this address and had not given the Civil Court any other address , the notification was deemed to have been effected vis-à-vis the addressee in accordance with the legislation i n force .

100 . The Court note s, however, that the relevant legislation , specifically section 35 ( 2 ) of the N otification Act , provides that the notifying officer must post up a copy of the document to be served at the old address . It observe s that in the present case the record of the notification of the judgment makes no mention of the document in question having been posted up .

101 . The Court nevertheless considers this aspect fairly unimportant .

102 . The Court holds that although the presumption of personal notification as set out in section 35 ( 2 ) of the N otification Act is not in itself incompatible with the Convention, e fforts must nevertheless be made to en sure that the most recent known address really is that of the applic ant o r that the latter h as been informed of the proceedings .

103 . On this specific point, the Court note s that according to the applic ant, the address which was provided by the police and to which the notifications were sent was not his address .

104 . It note s that it cannot be established from the case file how the police proceeded in order to ascertain that the said address was that of the applic ant o r what other action they took , and that the Government have submit ted no information on this matter .

105 . The Court therefore considers that there is nothing to suggest that any serious efforts were made , for example by contact ing the civil status registry, professional bodies , the department responsible for issuing press pass e s o r the court which dealt with the criminal a s pect of the case, in order to determine the applic ant ’ s address .

106 . Furthermore , the Court reiterates that there is nothing to suggest that the applic ant waived his right to a fair trial . It has not been demonstrated, or even alleged , that the applic ant had been apprised of the proceedings from other sources . The main precondition for waiving a right is that the person concerned must know of the existence of the right in question and, therefore, of the related proceedings .

107 . As to whether it was possible to secure the reopening of the proceedings , the Court, with reference to the a spects set out above relating to the first applic ant, considers that no such possibility existed .

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FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Dec ides to join the applications ;

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3 . Holds that there has been a violation of Article 6 of the Convention;

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Done in French, and notified in writing on 4 March 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

             Stanley Naismith Guido Raimondi Registrar President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Spano is annexed to this judgment.

G.R.A. S.H.N.

CONCURRING OPINION OF JUDGE SPANO

1. I agree with the majority in finding a violation of Article 6 § 1 ... of the Convention.

2. In paragraphs 76-79 of the judgment the Court sets out the principles on conviction in absentia deriving from Sejdovic v. Italy [GC], no. 56581/00, § 82, ECHR 2006 II; Colozza v. Italy , 12 February 1985, § 33, Series A no. 89; and Medenica v. Switzerland , no. 20491/92, § 55, ECHR 2001 VI. I would like to stress here that this case would seem to be the first one in which the Court has been squarely confronted with the question whether these principles can be transposed to proceedings which come under the civil head of Article 6 § 1. The Court answers that question in the affirmative in a general and abstract manner (see paragraph 79).

3. In my view, the Court should have adopted a narrower and more cautious approach to this novel issue and confined the application of these principles to the facts of this particular case, where the applicants were not duly notified of the domestic proceedings in accordance with the applicable rules on civil procedure. The domestic court found against them without their ever having an opportunity to reply to the claims submitted, despite the fact that the proceedings before the court involved the applicants ’ right to freedom of expression as guaranteed by Article 10 of the Convention ...

4. In view of these specific facts, and especially the civil right at stake, I concur with my colleagues that there has been a violation of Article 6 § 1 in this case. However, the question whether there are grounds for the principles of conviction in absentia to be applied in other circumstances coming under the civil head of Article 6 § 1 should, in my view, have been left open and decided on a case-by-case basis. Prudence in the development of the law in the area of civil procedure is essential for an international court confronted with a wide range of approaches to the organisation of domestic procedural systems .

[1] . This is a reference to the ritual formula used at Muslim funerals, whereby those present waiv e all rights vis-à-vis the deceased.