Information Note on the Court’s case-law 25

December 2000

Mercümek v. Turkey (dec.) - 36591/97

Decision 5.12.2000 [Section I]

Article 6

Civil proceedings

Article 6-1

Fair hearing

Refusal of court to hear witnesses in support of applicant’s case while uncertainties remained concerning the other party’s arguments: inadmissible

The applicant sought to withdraw the balance on his accounts with a bank, which inf ormed him that the money which he had deposited had already been withdrawn. The applicant initiated proceedings against the bank before the Commercial Court. The court-appointed experts found no conclusive evidence that the applicant had been paid the sums in issue. The bank later produced a document, allegedly signed by the applicant, according to which he had irrevocably released it from its obligation to pay him the sums deposited. The applicant maintained that the document had been forged. He requested that witnesses be heard on the matter of the authenticity of this document and submitted an expert legal opinion stating that other evidence than this document had to be taken into consideration by the court in order to assess the applicant’s claim properl y. His request, however, was rejected. The court finally dismissed the applicant’s claim on the ground that there was no evidence to prove that the document at stake had been forged by the bank. The president of the court resigned six months after the deci sion and became one of the defendant bank’s legal advisers. The Court of Cassation rejected the applicant’s appeal as well as his further request for rectification of its judgment.

Inadmissible under Article 6 § 1: It cannot be said that the domestic court ’s findings were not supported by evidence or were arbitrary or manifestly unreasonable. The Commercial Court’s decision was reviewed on appeal by the Court of Cassation and its soundness affirmed by a majority. Both judgments were supported by detailed re asoning. As regards the applicant’s complaint that the domestic court did not hear the testimony of his key witness, it appears that the Commercial Court did not permit witnesses to be heard on behalf of the defendant bank and its consideration of the case was based on the parties' own submissions as well as on the findings of court-appointed experts, whose impartiality was not doubted. The decision of the domestic court to conduct the proceedings in this way cannot be impugned from the standpoint of the pr inciple of equality of arms. Moreover, as regards the applicant’s complaint of lack of impartiality of the president of the Commercial Court, he has failed to substantiate that the judge conducted the proceedings in a manner disclosing an appearance of bia s towards the defendant bank with respect either to her behaviour during the trial or to the content of the judgment. It has not been alleged that the judge had any connection and sympathies with the defendant bank before the trial. The fact that after vac ating her position on the bench the judge joined a law office which advised the defendant does not amount to an ascertainable fact which could have raised a doubt as to her impartiality: manifestly ill-founded.

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

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