SECOND SECTION

DECISION

Application no . 40988/06 EKSERT TUR Ä° ZM TA Åž IMACILIK TEKSTÄ°L GIDA SAN. VE TÄ°C. LTD. Åž T Ä°. against Turkey and 7 other applications (see list appended)

The European Court of Human Rights (Second Section), sitting on 2 July 2013 as a Chamber composed of:

Guido Raimondi, President, Danutė Jočienė , Peer Lorenzen , András Sajó , Işıl Karakaş , Nebojša Vučinić , Helen Keller, judges,

and Stanley Naismith , Section Registrar ,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

A. The circumstances of the case

The applicants were issued with traffic fines for violating various provisions of the Traffic Code (Law no. 2918). They all brought proceedings before the Criminal Magistrates ’ Courts, objecting to these fines. In each case, the courts evaluated and rejected their objections without holding a hearing.

All applicants complained under Article 6 § 1 of the Convention of their inability to submit their arguments before the domestic courts during the proceedings concerning their objections to the traffic fines. Details of the facts and criminal proceedings and the applicants ’ further complaints are indicated in the table attached .

B. Relevant domestic law and practice

1. Traffic Code (Law no. 2918)

The relevant section of the Traffic Code reads:

Section 112

“Proceedings concerning the offences set forth by this Code, except for offences which require temporary annulment of a driving licence, will be conducted by traffic courts and where these are not available by criminal magistrates ’ courts.”

2. Misdemeanours Act (Law no. 5326)

The relevant sections of the Misdemeanours Act read:

Section 27

“Objections to administrative sanctions or fines shall be brought before criminal magistrates ’ courts.”

Section 28

“...

(4) The court shall notify the claimant of the defendant ’ s pleas. The court may hear the parties on a set day and [at a set] time, either at the parties ’ request or on its own motion. There shall be at least one week between the notification and the hearing day. Both of the parties or their representatives shall be present during the hearing. The decision may be rendered in the parties ’ absence if they are not present without legitimate reason. This shall be clearly specified in the notification letter.

(7) After having evaluated all the evidence in its possession and having heard the submissions of both parties, the court shall give the party against whom the fine or sanction was issued [the opportunity] to make a final statement. The court shall render its final decision in the presence of both parties.

(8) The court shall,

a. reject the objection if it finds the fine or sanction to be lawful;

b. annul the fine or sanction if it finds it to be unlawful.

...

(10) Decisions of the magistrates ’ courts concerning fines up to 2,000 Turkish Liras are final.”

Section 29

“(1) An objection to a decision of a magistrates ’ court may be lodged before the nearest assize court.

(2) The assize court shall examine the objection without holding a hearing.”

3. Decision of the Constitutional Court

By a decision dated 12 December 2007 the Constitutional Court annulled a clause of the Traffic Code which had established that fines issued in the presence of the persons concerned were final. The Constitutional Court held that the clause breached the principle of equality and the rule of law, as it restricted citizens ’ access to court against administrative acts and decisions. The above-mentioned decision was published in the Official Gazette on 30 January 2008.

THE LAW

Given the similarity of the applications as regards both facts and law, the court deems it appropriate to join them.

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

The applicants complained under Article 6 § 1 of the Convention that they had been unable to defend themselves in person or through legal assistance, as there had been no public hearing in their cases. Article 6 § 1, in so far as relevant, provides:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”

The Government maintained that the applicants had failed to ask the domestic courts to hold a hearing. In this respect, they referred to section 28(4) of the Misdemeanours Act.

The Court reiterates that the entitlement to a “public hearing” in Article 6 § 1 necessarily implies a right to an “oral hearing”. However, the obligation under Article 6 § 1 to hold a public hearing is not an absolute one. Thus, a hearing may be dispensed with if a party unequivocally waives his or her right thereto and there are no questions of public interest making a hearing necessary. A waiver can be made explicitly or tacitly, in the latter case by, for example, refraining from submitting or maintaining a request for a hearing (see, among other authorities, HÃ¥kansson and Sturesson v. Sweden , 21 February 1990, § 66, Series A no. 171 ‑ A , and Schuler- Zgraggen v. Switzerland , 24 June 1993, § 58, Series A no. 263) .

Furthermore, a hearing may not be necessary due to the exceptional circumstances of the case, for example when it raises no questions of fact or law which cannot be adequately resolved on the basis of the case file and the parties ’ written observations (see, inter alia , Döry v. Sweden , no. 28394/95, § 37, 12 November 2002; Lundevall v. Sweden , no. 38629/97, § 34, 12 November 2002; Salomonsson v. Sweden , no. 38978/97, § 34, 12 November 2002; and, mutatis mutandis , Fredin v. Sweden (no. 2) , 23 February 1994, §§ 21-22 , Series A no. 283 ‑ A, and Fischer v. Austria , 26 April 1995, § 44, Series A no. 312 ).

In the present cases, the Court notes that the applicants did not ask the relevant criminal magistrates ’ courts to hold a hearing. The Court notes that section 28(4) of the Misdemeanours Act provides that a hearing may be held either at the parties ’ request or on the magistrates ’ court ’ s own motion. Thus, the applicants had the possibility of requesting that hearings be held before the criminal magistrates ’ courts. However, it is clear from the documents in the case files that they failed to do so. The Court therefore finds that they can reasonably be considered to have waived their right to a hearing before the criminal magistrates ’ courts (see Blom v. Sweden ( dec. ), no. 28338/95, 14 March 2000).

It follows that this complaint is inadmissible for being manifestly ill-founded, and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

Lastly, certain applicants also alleged violations under Articles 6 and 13 of the Convention and Article 1 of Protocol N o 1 to the Convention.

In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court considers that the remainder of the complaints do not disclose any appearance of a violation of any of the above Articles of the Convention. It follows that these complaints are inadmissible for being manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to join the applications;

Declares the applications inadmissible.

Stanley Naismith Guido Raimondi Registrar President

Appendix

No.

Application no.

Lodged on

Applicant ’ s name,

date of birth, and

place of residence

Rep .

Case-specific facts

Complaints

40988/06

28/09/2006

Eksert Turizm Taşımacılık Tekstil Gıda San. v e Tic. Ltd. Şti .

Ä° zmir

Adnan Terece

In 2005 the applicant company was issued with various traffic fines for parking violations. The applicant company objected to the fines and sought their annulment. On 10 May 2006 , having examined the documents submitted by the İ zmir Police Headquarters and İ zmir Tax Office, the İ zmir Criminal Magistrates ’ Court rejected its objection.

Article 6 §§ 1 and 3 (b) – The applicant company complained about the lack of an oral hearing and maintained that it had not been able to challenge the administration ’ s arguments.

Article 13 – It maintained that the lack of an appeal mechanism had violated its right to an effective remedy.

Article 1 of Protocol No. 1 – The applicant company submitted that it had been deprived of its property by unlawful fines.

41881/06

13/10/2006

Ahmet Kadri Yıldız

20/02/1972

Diyarbakır

Mahsuni Karaman

On 3 March 2006 the applicant was issued with a traffic fine in his absence for having exceeded the speed limit. He objected to the fine. On 19 July 2006 the Diyarbakır Magistrates ’ Court rejected his objection.

Articles 6 and 13 – The applicant complained about the lack of an oral hearing. He maintained that the court had rejected his objection relying solely on the administration ’ s submissions and without evaluating any evidence.

47518/07

16/10/2007

Hasan Kızanlık

17/10/1971

Bursa

Tekin Öztürk

On 22 March 2007 the applicant was issued with a traffic fine for having exceeded the speed limit. On 12 June 2007 the Bursa Criminal Magistrates ’ Court rejected his objection to that fine. The applicant objected to the decision. However, on 27 September 2009 the Bursa Assize Court rejected the objection, stating that the decision of the Magistrates ’ Court was final.

Article 6 – The applicant complained that the lack of an oral hearing and his inability to challenge the submissions of the administration had violated the principle of equality of arms.

Article 13 – He complained about the lack of an appeal mechanism.

31143/09

20/05/2009

Ahmet Arılık

01/03/1973

Denizli

İbrahim Selçuk Süleme

On 28 October 2008 the Denizli Traffic Court rejected the applicant ’ s objection to a fine which had been issued against him for not having had the required documents. The court rendered its decision on the basis of the applicant ’ s petition and documents submitted by the administration. The final decision was served on the applicant on 3 February 2009 .

Article 6 – The applicant argued that his right to a fair hearing had been violated in that the court had failed to evaluate the evidence in his favour. He further maintained that different courts had delivered conflicting decisions on the same issue.

38463/09

27/06/2009

Alirıza Tanrıverdiler

08/02/1964

Antalya

On 21 January 2009, after having been examined and undergoing a medical examination concerning the level of alcohol in his blood by the Akdeniz University Hospital, a traffic fine was issued against the applicant for drink -driving. On 25 February 2009 the Antalya Criminal Magistrates ’ Court rejected his objection to the fine. The applicant further objected to this decision. However, on 20 March 2009 the Antalya Assize Court rejected his objection after examining it on the merits, holding that the fine had been lawfully issued.

Article 6 – The applicant complained that the traffic fine had been issued against him and maintained that the court had not evaluated his submissions.

39119/09

10/07/2009

Şükrü Yıldırım

01/01/1980

Ä° stanbul

The application concerns three sets of proceedings regarding traffic fines issued against the applicant on 13 March, 27 March and 1 September 2009 respectively. Following his objections to these fines, on 14 April, 30 July and 1 October 2009 respectively, the Kartal and Şişli Criminal Magistrates ’ Courts rejected the objections.

Article 6 § 1 – The applicant complained that the proceedings had been unfair. He maintained, in particular, that the court had not held a hearing, had not notified the administration of his submissions and had failed to evaluate any evidence. He further stated that the courts had delivered conflicting decisions on the same issue.

Article 6 § 2 – He argued that the presumption of innocence had been violated in that the court had decided on the lawfulness of the fine merely on the basis of the fine itself.

Article 13 – The applicant submitted that the proceedings before the Criminal Magistrates ’ Court had not constituted an effective remedy in that the courts had rejected his objections to the traffic fines without evaluating any evidence.

47953/09

27/08/2009

Gül Bedriye Özkara

23/12/1960

Ankara

On 15 May 2009 the applicant was issued with a traffic fine for having exceeded the speed limit. On 19 June 2009 the Ankara Criminal Magistrates ’ Court rejected her objection to the fine.

Article 6 – The applicant maintained that the proceedings before the Magistrates ’ Court had been unfair in that the court had not held a hearing, had not evaluated any evidence and had rendered its decision in her absence.

58109/09

15/10/2009

Ertan KuÅŸoÄŸlu

01/06/1955

Ä° stanbul

On 5 January 2009 a traffic fine was issued against the applicant for a parking vio lation. On 6 February 2009 the İ stanbul Criminal Magistrates ’ Court rejected the applicant ’ s objection to the fine. The decision was served on the applicant on 15 June 2009. He objected to the Magistrates ’ Court ’ s decision, referring to a decision of the Constitutional Court dated 12 December 2007, which annulled the provision restricting objections to traffic fines. On 5 August 2009 the İ stanbul Assize Court rejected his objection after examining it on the merits.

Article 6 – The applicant maintained that the court had failed to evaluate his submissions and had rendered its decision on the basis of the traffic fine, which had been issued without his knowledge. He further complained that the court had not taken the decision of the Constitutional Court into account.