Information Note on the Court’s case-law 193

February 2016

Öztünç v. Turkey - 14777/08

Judgment 9.2.2016 [Section II]

Article 2

Positive obligations

Article 2-1

Effective investigation

Excessive formalism in application of rule that accused cannot be convicted in absence without first being questioned: violation

Facts – Criminal proceedings initiated in 1984 were still pending before the Assize Court thirty years after the fatal shooting of four brothers. In June 2006 the Court of Cassation found that the Assize Court could not convict the defendants without rehearing their evidence following the Court of Cassation’s initial decision. However, as the defendants we re still evading justice, the Assize Court was unable to reach a verdict on the merits.

Law – Article 2: The Court did not doubt that the authorities had actively sought to find the defendants. It noted further that although they did not appear to have bee n successful, they were under an obligation of means only. Nevertheless, the State was not exempted from all responsibility for the inability to complete the judicial process. Beyond the fact that the defendants had absconded, the deadlock in the proceedin gs was largely due to the domestic legal rules on criminal litigation and their interpretation by the Court of Cassation.

The Court of Cassation considered that the Code of Criminal Procedure prohibited the conviction of fugitive defendants if they had not been heard by the trial court after remittal of the case by the Court of Cassation, even if they had already been heard previously.

The fact that proceedings were conducted in the absence of the accused was not in itself incompatible with Article 6 of the Convention. However, the Court of Cassation’s decision to require the presence of the defendants owing to the nature of the remittal – even though they had been notified of the proceedings, were represented by a lawyer and were in all likelihood seeking t o evade justice – was excessively formalistic.

No incontrovertible argument could justify such preferential treatment for a fugitive defendant: such treatment risked undermining the imperatives of protection contained in Article 2 and rendering nugatory the procedural obligation flowing from the right to life.

The impact on the procedural protection of the right to life was particularly serious: the right afforded fugitive defendants did not merely result in short delays in the proceedings, but in the proceedings becoming paralysed indefinitely. This we nt far beyond what was justified in order to ensure a fair balance between the rights of the accused and the rights of the victims.

In sum, the legislative framework established by the State, and in particular the rules of criminal procedure as interpreted by the domestic courts, had prevented the proceedings from being sufficiently effective to meet the requirements of Article 2 of the Convention and, in particular, the obligation to act with due expedition.

Conclusion : violation (unanimously).

Article 41: EUR 30,000 each in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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