Communicated on 30 August 2017

SECOND SECTION

Application no. 18085/10 Hamdi AKIN against Turkey lodged on 11 November 2009

STATEMENT OF FACTS

1. The applicant, Mr Hamdi Akın, is a Turkish national, who was born in 1953 and lives in Ankara. He is represented before the Court by Mr İ . Akın, a lawyer practising in Ankara.

A. The circumstances of the case

2. The facts of the case, as submitted by the applicant, may be summarised as follows.

3. On 25 September 2007 the applicant wrote a cheque to a certain F.G. However, the cheque was rejected by the bank as the applicant did not have sufficient funds.

4. On 19 November 2007, upon the complaint of F.G., the Kad ı k öy Public Prosecutor filed an indictment against the applicant, accusing him of drawing a dishonoured cheque, pursuant to the now repealed Law on the Regulation of Payments by Cheque (Law no. 3167).

5. At the first hearing on 26 November 2007 the Kad ı k öy Criminal Court of General Jurisdiction ordered that the applicant be invited to the next hearing.

6. At the following hearing on 13 March 2008 the court noted that the applicant had moved from the address provided by the complainant. It requested all registered addresses of the applicant from the bank which had issued the cheque.

7. The bank provided two addresses of the applicant; the work address, where the applicant could not be found previously, and his home address. Having obtained that information, the Kad ı k öy Criminal Court sent another notification to the applicant ’ s work address. The letter was returned once again.

8. Following the subsequent hearings the court served two more notifications at the same address. In the absence of the applicant, the documents were approved by the mayor of the neighbourhood and posted on the door, in line with Section 35 § 2 of the Law on Notifications (Law no. 7201).

9. On 3 February 2009 the Criminal Court found the applicant guilty as charged and sentenced him to a judicial fine. The judgment was sent to the applicant ’ s work address and was once again returned as the applicant could not be found there.

10. On an unspecified date the applicant was arrested. He claims to have been imprisoned due to his failure to pay the fine imposed by the court.

11. On 9 September 2009 the applicant appealed against the judgment, indicating that he had not been informed of the criminal proceedings against him until the time he was arrested by the police. In that respect, he argued that the notifications had been made solely to his work address although his home address was registered at the Civil Registry and the Ankara Chamber of Commerce and had been announced in the Trade Registry Gazette. He also requested the restitution of the time-limit to lodge an appeal pursuant to Article 40 of the Criminal Code on Procedure (Law no. 5271).

12. On 28 September 2009 the Kad ı k öy Criminal Court rejected the applicant ’ s appeal for being out of time. The court did not indicate anything with regard to the applicant ’ s request for restitution of the time-limit. Nor did it respond to his submissions concerning the notification procedure.

13. The applicant objected to that decision. He stated that the court had violated his right to defence as it had insisted on serving the documents at his work address although it had been informed of his home address. He further referred to two decisions of the Court of Cassation, in which the high court had ruled that the first-instance courts must have established whether the accused had other addresses, in line with Section 28 § 2 of the Law on Notifications, before concluding the notification process pursuant to Section 5 § 2 .

14. On 12 October 2009 the Kad ı k öy Assize Court rejected the applicant ’ s objection.

15. On an unspecified date following the introduction of the present application and the entry into force of the recent Law on Cheques (Law no. 5941) the applicant was released . In 2012 further amendments decriminalising the act of drawing dishonoured cheques were made to that new law. Subsequently, all legal consequences of the criminal proceedings against the applicant were removed from the judicial records.

B. Relevant domestic law

16. The relevant sections of Law on Notifications (Law no. 7201) read as follows:

Section 28 – Notification by publication

“Notification to a person whose address is unknown shall be made through publication.

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 mayor 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 institutions which it considers relevant and request a police investigation.”

Section 35 – Obligation to communicate changes in address

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

Where [this] person has failed to communicate 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 entrance to the building corresponding to the old address; the date on 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.”

17 . Section 106 § 3 of the Law on the Execution of Penalties and Security Measures (Law no. 5275) reads as follows:

“If the convicted person fails to pay the judicial fine within the specified period following service of the payment order upon him, he shall be imprisoned by decision of the public prosecutor for the number of days that corresponds to the unpaid amount.”

18. Article 40 of the Code on Criminal Procedure (Law no. 5271) stipulates that if a person misses a time-limit without there being any fault attributable to him or her , he or she may request its restitution.

19. According to Law on Cheques (Law no. 5941), which entered into force on 20 December 2009, drawing cheques without having sufficient funds in the bank account does not carry a prison sentence. Following the amendments made to that law by Law No. 6273 on 3 February 2012, the act was no longer classified as a criminal offence but as an infraction ( kabahat ) subject to administrative measures such as preventing the person from having a cheque book until the time he paid his debt together with its interest.

However, with recent amendments made to the Law on Cheques by Law no. 6278 on 9 August 2016, the act is once again classified as an offence bearing criminal liability. Section 5 of the Law now indicates that drawing dishonoured cheques would be subject to a judiciary fine, which would be converted into imprisonment in case the convicted person fails to pay it.

COMPLAINT

20. The applicant complains under Article 6 of the Convention that he was denied a fair trial in that he was excluded from the criminal proceedings against him due to the deficiencies in the notification procedure. In that connection, he argues that the Kadıköy Criminal Court of General Jurisdiction served the documents only at one of his addresses, although it had been informed of another address, where he could be reached. He further maintains that the court rejected his request for the restitution of the time-limit without indicating any reasons for doing so.

QUESTION TO THE PARTIES

1. Did the applicant have a fair hearing in the determination of the criminal charge against him, in accordance with Article 6 § 1 of the Convention? In particular, has there been a violation of the applicant ’ s right of access to a court as a result of the domestic authorities ’ failure to notify him of the criminal proceedings conducted against him and their subsequent refusal of his requests for the restitution of the time-limit he had missed?

2. The Government are invited to provide the Court with copies of all the relevant documents concerning the criminal proceedings against the applicant, including the transcripts of all the hearings, the documents concerning the notifications made to the applicant during the course of the proceedings and those with regard to the applicant ’ s imprisonment and eventual release.