DISSENTING OPINION OF JUDGE LEMMENS

1. To my regret, I am unable to follow the majority in its conclusion that there has been no violation of Article 6 § 1 of the Convention. That conclusion is based on the view that the fine imposed on the applicant is merely an “administrative” sanction. I respectfully disagree, as I consider that the proceedings brought against the applicant were of a “criminal” nature and that the fine imposed was a “criminal” one.

2. The charges brought against the applicant were based on Article 526 § 1 of the Criminal Code, and the case was sent to the Magistrates ’ Court, a criminal court.

Two days later the Misdemeanours Act entered into force. The same offence was now the object of section 32 § 1 of that Act. Article 526 of the Criminal Code was abolished.

If charges had been brought after the entry into force of the Misdemeanours Act, an administrative authority could have imposed an administrative sanction (section 22 of the Misdemeanours Act). However, the case was pending before a criminal court. In such a situation, section 24 of the Misdemeanours Act was applicable: when that court (in our case the Magistrates ’ Court) found that the offence was a misdemeanour, it had to deliver a decision imposing an “administrative sanction”.

The term “administrative sanction” referred, in my opinion, to the sanctions classified as such in the Misdemeanours Act. Among these sanctions is listed a fine, called an “administrative fine” (section 16 of the Misdemeanours Act).

3. The majority refer to section 32 of the Misdemeanours Act to conclude that the impugned fine was “administrative” under domestic law.

It is true that section 32 § 1 provides that an “administrative fine” is to be imposed on those who have committed the offence of which the applicant was found guilty. However, this does not turn the fine actually imposed by the Magistrates ’ Court into an “administrative” one for the purposes of Article 6 of the Convention .

The Convention distinguishes between, on the one hand, offences prosecuted before and punished by courts, and on the other, offences, often of a minor nature, which are prosecuted before and punished by administrative authorities. Proceedings before a court are subject to the guarantees of Article 6. Proceedings before an administrative authority are not subject to these guarantees, but if the charge is “criminal” in the (autonomous) sense of Article 6, that provision requires that the person concerned is able to take any decision thus made against him or her before a tribunal that does offer the guarantees of Article 6 (see the principle established in Öztürk v. Germany , 21 February 1984, § 56, Series A no. 73).

Had the fine imposed on the applicant been handed down by an administrative authority, it would have been a truly “administrative” sanction, and the Convention would then have required that the applicant could challenge that fine before a court. The Misdemeanours Act provides for such a possibility (for an example in our case-law, see Özmurat İnşaat Elektrik Nakliyat Temizlik San. ve Tic. Ltd. Şti. v. Turkey , no. 48657/06, 28 November 2017; for other examples involving judicial review of a sanction imposed by an administrative authority (and raising an issue about the right to an oral hearing), see Hüseyin Turan v. Turkey , no. 11529/02, 4 March 2008, and Suhadolc v. Slovenia (dec.), no. 57655/08, 17 May 2011). Sections 27 and 28 of that Act provide that the person concerned can challenge an “administrative” sanction imposed by an administrative authority before the Magistrates ’ Court, which can annul the sanction. In such a case, the Magistrates ’ Court acts as an administrative court: it does not have the power to impose a sanction itself, it can only examine whether the sanction imposed by the administrative authority is a lawful one.

In the applicant ’ s case, the situation was very different. The Magistrates ’ Court examined the charge brought against the applicant on the merits, found that the offence was a misdemeanour under the Misdemeanours Act, declared the applicant guilty of that offence, and applied the sanction provided by the Misdemeanours Act. The entire proceedings were judicial in nature. The only thing that was “administrative” was the name given to the sanction by domestic law.

That characterisation cannot, in my opinion, change the nature of the charge. Whatever the term used for the sanction ultimately imposed, the charge was, from beginning to end, a “criminal” one.

I therefore believe that the charge was “criminal” already under the first of the Engel criteria: the proceedings in question were classified as criminal under domestic law.

4. The majority do not contest that the applicant had, as a matter of principle, the right to an oral, and even a public, hearing before the Magistrates ’ Court. As is reiterated in the judgment, “this principle is particularly important in the criminal context, where generally there must be, at first instance, a tribunal which fully meets the requirements of Article 6, and where an applicant has an entitlement to have his case ‘ heard ’ , with the opportunity, inter alia , to give evidence in his own defence, to hear the evidence against him, and to examine and cross-examine the witnesses” (see paragraph 43 of the judgment, referring to Jussila v. Finland [GC], no. 73053/01, § 40, ECHR 2006 ‑ XIV).

I agree with the majority that the obligation to hold a hearing is not absolute (see paragraph 44 of the judgment, referring to Jussila , cited above, § 40).

I disagree, however, with the majority ’ s subsequent approach, which is based on the fact that the proceedings against the applicant did not concern the “hard core of criminal law”, but rather belonged to a category of cases “which do not carry any significant decree of stigma” and for which “the guarantees of the limb of Article 6 applying to criminal law do not necessarily apply with their full stringency” (see paragraph 44 of the judgment).

The distinction made by the majority is based on Jussila (cited above, § 43). However, in Jussila the second of the above-mentioned categories of cases related to cases “not strictly belonging to the traditional categories of the criminal law”, but which nevertheless are considered to concern “criminal charges” under the Engel criteria. It was noted that the application of these criteria resulted in “a gradual broadening of the criminal head [of Article 6 § 1]” ( ibid. ). I would like to add that the cases belonging to this second category are more akin to administrative-law cases, where an administrative court reviews an administrative act.

By contrast, however, as explained above, the case brought against the applicant was criminal in all its essential aspects. Thus, it did not belong to the category of cases that fell under Article 6 § 1 because of the application of the broad Engel criteria. The proceedings before the Magistrates ’ Court concerned, in my opinion, the “hard core of criminal law”, notwithstanding the minor nature of the sanction that could be imposed.

For such cases, an oral hearing at first instance is the general rule and the exceptions to that rule “essentially [come] down to the nature of the issues to be decided by the competent national court” (see Jussila , cited above, § 42). An oral hearing is not required, for example, “where there are no issues of credibility or contested facts which necessitate a hearing and the courts may fairly and reasonably decide the case on the basis of the parties ’ submissions and other written materials” ( ibid. , § 41, referred to in paragraph 45 of the present judgment). The modest character of the fine and the degree of stigma carried by it (see paragraph 49 of the judgment) do not come into play to justify dispensing with an oral hearing in such cases.

5. According to the majority, the applicant “did not challenge the credibility of statements given by or to the gendarmerie or request evidence to be presented and heard by the court, but merely maintained that there had not been sufficient evidence to prove that he had been aware of the prostitution” (see paragraph 48 of the judgment).

I find it hard to draw such a conclusion from the facts of the case. We do not know whether the applicant contested the charge brought against him before the Magistrates ’ Court, and if so, what were his arguments. But we do know that in his objection to the decision of the Magistrates ’ Court “he maintained that he accepted clients into his hotel in compliance with the relevant regulation and that he could not be expected to refuse to offer accommodation to foreign nationals or to question their motives for staying there” (see paragraph 16 of the judgment). I assume that the applicant had already raised these arguments before the Magistrates ’ Court, or could have raised them before that court. If so, it seems to me that these were arguments raising issues of fact, which lent themselves to an oral development by the applicant and to a direct assessment of his credibility by the Magistrates ’ Court.

However, the Magistrates ’ Court declared the applicant guilty solely on the basis of the file, that is, on the basis of statements made by, among others, the applicant and the hotel manager (see paragraphs 11-12 of the judgment). This way of proceeding was, in my opinion, not compatible with Article 6 § 1 of the Convention.

6. Theoretically, the question could arise whether a public hearing before the Assize Court, which examined the applicant ’ s objection to the decision of the Magistrates ’ Court, would have been capable of correcting the defect before the first-instance court (see Findlay v. the United Kingdom , 25 February 1997, § 79, Reports of Judgments and Decisions 1997 ‑ I). However, in the present case this is a purely hypothetical question, since the Assize Court did not hold a hearing either.

7. Since the applicant did not benefit from an oral hearing before the Magistrates ’ Court or before the Assize Court, I believe that there has been a violation of Article 6 § 1.

[1] . 62 euros at the time of the events .