SECOND SECTION

Application no. 47081/06 M. T . B . against Turkey lodged on 8 November 2006

STATEMENT OF FACTS

The applicant, Mr M. T. B. , is a Turkish national, who was born in 1953 and lives in Istanbul.

A. The circumstances of the case

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

On an unspecified date in 2006 several police officers from the Firuzköy Police Station in Avcılar , Istanbul, showed up at the applicant ’ s apartment with an arrest warrant and invited him to 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) penalty ordered by the relevant 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.

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 monetary penalty of TRY 500 [1] , corresponding to the amount of the cheque . The judgment, which was delivered on 13 October 2004 by the Bakırköy Criminal Court of First Instance, had moreover become final in the absence of an appeal.

On 5 May 2006 the applicant submitted an appeal request to the Bakırköy Criminal Court of First Instance, challenging the judgment in question on the grounds that it had been delivered in his absence and that 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 went to the Bakırköy Public Prosecutor ’ s Office just 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 issued a blank cheque to her as a guaranty that he would discharge their joint debt to a bank. They had in fact signed a protocol on 12 March 1998, in the presence of a lawyer, 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 İ.Ö. to return him the blank cheque , 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 requested 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 did not clear, had brought a criminal complaint against him. Despite his instructions, he was not contacted by his bank when the cheque in question was deposited by İ.Ö., nor was he advised that the cheque had bounced.

On the same day the Bakırköy Civil Court of First Instance issued a summary judgment dismissing the applicant ’ s appeal request as having been 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 Article 35 the Law no. 7201 on Notifications, and the appeal request should therefore have been submitted by 8 November 2004.

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 ( muhtarl ı k ) , the judgment of October 2004 had been served at the address which he had moved out of on 15 April 1999, where, in his absence, it had apparently been posted on the building door. He therefore requested that this judgment which had been delivered in his absence be quashed or rectified.

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.

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 Article 35 of the Law no. 7201 on Notifications and Article 55 of the Regulation on Notifications.

It appears that the applicant was imprisoned on 24 November 2006 on account of his failure to pay the amount of TRY 500 ordered by the Bakırköy Criminal Court of First Instance on 13 October 2004.

On 26 November 2006 the applicant was conditionally released.

B. Relevant domestic law

Articles 10 and 35 of Law no. 7201 on Notifications provided as follows at the material time:

“10. Service is made on a party at [his or her] last known address...

35. If a person, who has been duly served [with a notice] in person or at his or her address, changes address, [he/she] is under an obligation to notify the new address to the authority which had issued the notification. In that case, future notifications shall be made to the new address.

If the new address is not as such notified and the officer in charge of serving the notice cannot determine the new address, a copy of the document to be served shall be affixed to the main door of the building at the former address, and the date the document was thus affixed shall be considered as the date of service.

Services made thereafter at the old address shall be considered to have been made on the notified party.”

Article 55 of the Regulation on Notifications provides as follows in so far as relevant:

“...

If the officer serving the notice cannot determine the new address of the notified party, the document to be served shall be returned to the authority which had issued it. If the relevant authority is informed of the new address by a third party, the document shall be served at that address. If not, ... one copy of the document shall be affixed on the door at the old address, and another copy on a board at the court house ( divanhane ). The date on which the document was affixed on the door shall be considered as the date of service.

...”

COMPLAINTS

The applicant complains under Article 6 of the Convention that the criminal proceedings against him were conducted and concluded in his absence and that he was convicted in absentia .

QUESTION S TO THE PARTIES

Did the applicant, who claims not to have been notified of the charges against him and who was convicted in absentia , have a fair trial within the meaning of Article 6 of the Convention? Did the domestic authorities show the requisite diligence in tracing the applicant? Did the applicant have the opportunity to obtain a fresh determination of the merits of the charge against him, in respect of both law and fact, as required by the Convention case-law (see, Sejdovic v. Italy [GC], no. 56581/00, ECHR 2006 ‑ II )?

The Government are kindly requested to submit the file pertaining to the criminal proceedings in question .

[1] 1 The gross minimum wage at the time of the delivery of the judgment was TRY 444.15 per month.