Published on 9 May 2022

SECOND SECTION

Applications nos. 74601/14 and 78295/14 Dilek GENÇ against Turkey and Dilek GENÇ against Turkey lodged on 24 November 2014 and 15 December 2014 respectively communicated on 22 April 2022

SUBJECT MATTER OF THE CASE

The applications concern the alleged unfairness of the different set of proceedings whereby the applicant sought to challenge the administrative fines imposed on her on account of, inter alia , the alleged lack of a statutory provision in the Administrative Procedure Act (Law no. 2577) enabling the examination of witnesses at proceedings before the administrative courts and the domestic courts’ failure to state the reasons in dismissing her objections.

The applicant was the owner of a music hall in İzmir at the time of the events giving rise to the present applications and on different dates the municipality of İzmir imposed fines on her for failing to comply with the official closing hours on the ground that she had failed to comply with the mandatory closing hours set up by the municipalities, namely 12 p.m. The fines were based on the reports drawn up by the police officers, indicating that there had been customers inside the music hall after 12 p.m., whereas the applicant contested that claim by maintaining that there had only been her workers in the music hall, who had been cleaning the place and making the necessary preparations, and asked the administrative courts to hear them as witnesses. Relying on the police report and without holding a hearing, the İzmir Administrative Court dismissed the applicant’s claims.

On different dates the Constitutional Court declared the applicant’s individual applications inadmissible, holding that her complaints relating to the fairness of the proceedings and the right to obtain the attendance of witnesses had been manifestly ill-founded.

QUESTIONS TO THE PARTIES

1. Did the administrative fines fall within the ambit of the criminal limb of Article 6 of the Convention? In the affirmative, did the applicant have a fair hearing in the determination of the criminal charges against her, in accordance with Article 6 § 1 of the Convention (see Sancaklı v. Turkey , no. 1385/07, §§ 28-31, 15 May 2018, and Özmurat Ä°nÅŸaat Elektrik Nakliyat Temizlik San. ve Tic. Ltd. Åžti. v. Turkey , no. 48657/06, §§ 22 ‑ 26, 28 November 2017)? In particular, could the applicant effectively challenge the fines imposed on her before tribunals that offered the guarantees of Article 6 § 1 of the Convention, including, in particular, the principles of equality of arms and adversarial proceedings and the right to a reasoned judgment?

2. Having regard to the applicant’s contention that there was no right under the Administrative Procedure Act to summon and examine witnesses, was the applicant able to obtain the attendance of witnesses on her behalf under the same conditions as witnesses against her, as required by Article 6 § 3 (d) of the Convention (see, mutatis mutandis , Topić v. Croatia , no. 51355/10, §§ 43-49, 10 October 2013)?

The Government are requested to clarify the domestic legal provisions concerning the examination of witnesses applicable in proceedings falling within the ambit of the Administrative Procedure Act (Law no. 2577).

The Government are further invited to submit copies of all the relevant documents concerning the applicant’s case, including but not limited to, documentary evidence against the applicant, and the written submissions of the applicant throughout the proceedings

Applications nos. 74601/14 and 78295/14

No.

Application no.

Case name

Applicant Year of Birth Nationality

Represented by

1.

74601/14

Genç v. Turkey

Dilek GENÇ 1973 Turkish

Kamuran AKYÃœZ

2.

78295/14

Genç v. Turkey

Dilek GENÇ 1973 Turkish

Osman Zuhat BÄ°LEN