Přehled
Rozsudek
SECOND SECTION
CASE OF DİLİPAK AND KARAKAYA v. TURKEY
(Applications nos. 7942/05 and 24838/05)
JUDGMENT
[Extract]
STRASBOURG
4 March 2014
This judgment may be subject to editorial revision.
In the case of Dilipak and Karakaya v. Turkey,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
Guido Raimondi, President,
Işıl Karakaş,
Peer Lorenzen,
András Sajó,
Helen Keller,
Paul Lemmens,
Robert Spano, judges,
and Stanley Naismith, Section Registrar,
Having deliberated in private on 4 February 2014,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in two applications (nos. 7942/05 and 24838/05) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Turkish nationals, Mr Abdurrahman Dilipak and Mr Hasan Karakaya (“the applicants”), on 28 January 2005 and 16 June 2005 respectively.
2. Mr Dilipak was represented by Mr S. Döğücü, a lawyer practising in Istanbul. Mr Karakaya was represented by Mr A Paccı, another lawyer practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent.
3. The applicants alleged, in particular, that their right of access to a court had been infringed, as had their right to freedom of expression.
4. On 6 June 2009 the applications were communicated to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicants were born in 1949 and 1953 respectively and live in İstanbul. They are both journalists who were working for the Akit daily newspaper at the material time.
A. Background to the case
6. On 25 June 2000, on the occasion of the funeral of Admiral Güven Erkaya, the former Commander-in-Chief of the navy and member of the National Security Council, Mr Karakaya published an article in the Akit daily newspaper, whose front-page headline read “We will not waive our rights”. In the article the journalist criticised the late Admiral for the role he had played in the political process triggered by the meeting of the National Security Council on 28 February 1997, which some observers have called a “post-modern coup d’état”.
7. On 26 June 2000 Mr Dilipak also published an article in the same newspaper on Admiral Erkaya, criticising his actions.
B. Proceedings before the regional court
8. On 29 September 2000 the deceased’s family brought a civil action for damages in the Ankara Civil Court of First Instance (“the Civil Court”) against the applicants and the company owning the newspaper. The family also lodged a complaint with the Istanbul public prosecutor’s office.
9. When bringing their civil action, the Erkaya family gave the newspaper’s registered office as the defendants’ address.
10. However, the postal service did not succeed in serving the summons and the statement of claim on the applicants at this address, as they were not to be found there. This fact was confirmed by the elected neighbourhood leader (muhtar), who countersigned the report noting that the summons could not be served on the relevant persons.
11. The Civil Court then asked the police to ascertain the applicants’ addresses.
12. According to the Civil Court, after the police had completed their inquiries, they informed it of two addresses in Istanbul: one in the Aksaray neighbourhood (Küçüklanga Caddesi no. 103), in respect of Mr Karakaya, and the other in the Mecidiyeköy neighbourhood (Mecidiye Caddesi no. 7/50 Çavuşoğlu İş Merkezi), in respect of Mr Dilipak.
13. The decision was subsequently taken to send fresh summonses to these addresses.
14. The record of the service of Mr Karakaya’s summons stated that it had been handed to a certain N.G., describing him as an “authorised employee” (yetkili personel).
15. In the case of Mr Dilipak, the summons could not be served on the ground that he was unknown at the stated address.
16. The Civil Court decided to serve the summons via publication in the press on the ground that it was impossible to ascertain Mr Dilipak’s address.
17. On 21 January 2003, in the absence of the defendants, who had never appeared at the hearings, the Civil Court delivered a judgment ordering them jointly to pay the sum of 30,000 Turkish liras (TRY), equivalent to some 17,000 euros (EUR), together with interest in arrears from 25 June 2000, for non-pecuniary damage.
18. The Civil Court considered that in his article Mr Dilipak had insinuated that the deceased would pay for his wrongdoing and that justice would be done The Civil Court noted that he had used the phrase “may your land be abundant”, which was reserved for non-Muslims. It cited the following passage in particular:
“Whatever you do, do not remind me of the injunction ‘do not speak ill of the dead’. This injunction does not apply to Hitler, Mussolini or Stalin. Otherwise the Koran would not say what it does about Nimrod and Pharaoh. Güven Erkaya was certainly not Hitler, but nonetheless he holds a particular place in the consciousness of our people.”
19. In the case of Mr Karakaya, the Civil Court held that he had insinuated that the circumstances surrounding the Admiral’s death –particularly his cancer – were but his due for the suffering which he had inflicted on the people. It noted that the journalist had also written that this death had not saddened him, that he would not attend the Admiral’s funeral and that he would not waive his rights over him.[1] It also noted the following passage:
“He made the people weep, but now his family are weeping ... He invented the lie that Koranic school students swore an oath to combat the secular system and Atatürk. The Koranic schools may now be closed, but so are Erkaya’s eyes.”
20. The Civil Court concluded that the applicants had “exceeded the limits of criticism by launching a personal attack on the deceased on the ground of his functions”, especially since he had been a “valorous army commander who [had] served the nation”.
21. Furthermore, it pointed out that inquiries had been carried out into the defendants’ economic and social situation and that the turnover of the company owning the Akit newspaper had been ascertained from the tax authorities.
22. The judgment was not served on Mr Karakaya because he no longer lived at the latest address known to the registry (Küçüklanga Caddesi). As he had not informed the court of his change of address, the judgment was deemed to have been served in accordance with section 35 of the Notification Act (see paragraphs 57-66 below).
23. The record drawn up by the notifying officer stated that a local resident, R.Ö., had been questioned about Mr Karakaya’s new address, albeit in vain. A stamp used by the local muhtar indicates that the address of service was a business address which had not been recorded in his files.
24. In the case of Mr Dilipak, the judgment was served via publication in a newspaper on 14 April 2003. The judgment became final on 29 May 2003.
25. On 3 June 2003 the Civil Court added an annotation to its judgment to the effect that it was final (kesinleşme şerhi).
26. On 9 June 2003 the Erkaya family submitted a copy of the final judgment to the Ankara Enforcement Office and brought enforcement proceedings. On the same day the payment orders were drawn up and posted to the applicants ...
27. Mr Dilipak received his payment order at his home address in the Acıbadem neighbourhood in Kadıköy (Istanbul). Mr Karakaya also received his order at his home address in Beylikdüzü (Istanbul).
28. On an unspecified date the applicants sought leave from the Civil Court to appeal on points of law against the judgment of 21 January 2003, observing that they had been apprised of the latter on receipt of the aforementioned payment orders.
29. On 17 June 2003 the Civil Court rejected the applicants’ appeal (temyiz dilekçesinin reddi) on the ground that the judgment had become final.
C. Proceedings before the Court of Cassation
30. The applicants lodged an appeal on points of law against the 17 June 2003 decision.
31. Mr Dilipak challenged the lawfulness of serving the documents in question by publication in the press, contending that this procedure could only be used after all other methods had failed. He pointed out that he had been residing at the same address for more than twenty years, and submitted that the requisite steps had not been taken to find his address. In his view, his address could have been easily ascertained by means of a simple letter to the Journalists’ Association (Gazeteciler Cemiyeti) or to the Directorate General of Press, Publications and Information (a department operating under the Prime Minister, with responsibility for issuing press passes).
32. He pointed out that the judgment had become enforceable on 3 June 2003 and that the payment order had been drawn up and sent to his home within one week of that date. Furthermore, the address had been given to the Department for the Execution of Sentences by counsel for the Erkaya family. He specified that the latter had long been in possession of his address and had deliberately refrained from saying so until the judgment had become final.
33. Mr Dilipak concluded that neither the summons nor the judgment had been validly served on him.
34. Mr Karakaya, for his part, complained that the documents had been served at another person’s address rather than his own.
35. He pointed out that in accordance with the law, when judicial documents were served at a business address, they could be handed over to one of the addressee’s permanent employees if, and only if, the addressee was absent. He submitted that in the present case, the documents had been served at a business address but that the person mentioned in the record had not been one of his employees. Moreover, the record did not mention the reason why the documents had not been handed over to him in person.
36. Lastly, he found it surprising that the claimants had considered throughout the proceedings that his address was “Küçüklanga Caddesi no: 103 – Aksaray/Istanbul” and that, less than a week after the judgment had become final, they had suddenly found his real address and given it to the Department for the Execution of Sentences.
37. On 24 December 2003 the Court of Cassation dismissed on the merits the appeal on points of law against the impugned judgment on the ground that the latter was “in conformity with procedural and statutory law”.
38. On 13 September 2004 Mr Dilipak submitted a request for rectification of the judgment.
39. He submitted that the Civil Court had not made any serious attempt to find his address.
40. Mr Dilipak pointed out that the court had indeed submitted a request to the police and that the report sent to the court had indicated one address for each of the other two defendants, but that neither of these addresses had concerned him. He specified that the document in the case file contained a handwritten entry “Mutakil San Is. Ad.Dem, M.Köy” alongside his name, that the author of this entry was unknown, and that the judge had, strangely enough, considered that it referred to the address “Mecidiye Cad. no: 7/50 Cavuşoğlu Iş Merkezi Mecidiyeköy Istanbul”, to which he had decided to send the summons made out to him.
41. Explaining that according to the law and the case-law of the Court of Cassation the court should have made enquiries among the relevant government departments and institutions and not confined itself to police searches, he accused the court of having failed to take the necessary action. In this connection, he produced letters from the civil status register, the Press Council (Basın Konseyi), the Journalists’ Association, the Directorate General of Press, Publications and Information, and an employers’ organisation (MÜSIAD), stating that according to their files, he was a long-term resident of the Acıbadem neighbourhood in Istanbul. He also submitted a document from the elected leader of the Acıbadem neighbourhood to the effect that he had been living at the same address in that neighbourhood since 22 July 1989.
42. Mr Dilipak also presented a letter from the Istanbul Governor’s Office confirming that he had been assigned a bodyguard. In his view this meant that his address was known to the police.
43. Moreover, the Social Security Department, the Land Registry and the Municipal Council had all been aware of his address.
44. He also submitted that the Erkaya family must have known his address because it had been mentioned in the case file for the criminal proceedings which they had jointed as intervening parties, the summons had been sent to him at that address and he had stated the same address at his hearing before the Ankara Criminal Court.
45. He based his whole line of reasoning on the case-law of the Court of Cassation, including a judgment delivered by its Joint Civil Chambers on 29 September 1999 (1991/1-609 E – 1999/744 K). In this judgment the court had stressed the importance of judicial notices, which were closely linked to the rights of the defence. It had held that efforts to ascertain an address should be very wide-ranging, covering enquiries to government bodies such as municipal councils, civil status and land registries and various professional bodies, and that such action should not be confined to police investigations.
46. On an unspecified date Mr Karakaya also submitted a request for rectification of the judgment.
47. On 14 February 2005 the court dismissed the applicants’ requests on the ground that the conditions had not been met for rectifying the judgment.
48. On 5 February 2007 the Ministry of Justice invited the Public Prosecutor at the Court of Cassation to lodge an appeal in the interests of the law against the judgment of 21 January 2003 on the ground that the rules on notification of judicial documents had been infringed. He backed up his arguments by citing the aforementioned judgment adopted on 29 September 1999 by the Joint Civil Chambers of the Court of Cassation.
49. On 2 April 2007 the Court of Cassation dismissed the appeal in the interests of the law lodged by the Public Prosecutor’s Office.
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E. Request to reopen proceedings
54. On 3 August 2012 the applicants applied for the reopening of the proceedings before the Ankara Civil Court of First Instance and a stay of execution of the judgment of 21 January 2003. In support of their application, they submitted that criminal proceedings for an attempted coup d’état had been instituted against senior army officers who had been on the National Security Council in February 1997, and that those concerned had been taken into pre-trial detention. According to the applicants, this was a new fact that had been unknown to the court at the time of the judgment. They pointed out that this fact was liable to cast doubt on the court’s use of such laudatory expressions as “valorous army commander who served the nation” in connection with the deceased. Furthermore, the applicants submitted that the applications which they had lodged with the Court were currently under examination and that a finding of a violation of the Convention was a ground for reopening the proceedings. They therefore invited the court to order a stay of execution of the judgment until the Court had heard and determined their applications.
55. By an order of 16 August 2012, the Civil Court decided to suspend the enforcement procedure on condition of payment of a surety of TRY 164,000 (approximately EUR 74,500 at the time).
56. No information has been provided on the action taken on this order.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Provisions on notification
57. Section 17 of the Notification Act (Law no. 7201) provides that notification of persons exercising their occupation or trade on a permanent basis at the same workplace can, in their absence, be effected vis-à-vis one of their permanent employees.
58. Section 28 of the Act provides:
“The address of a person on whom it has not been possible to serve a document and whose residence, address or workplace has proved untraceable, in the light of the foregoing provisions, shall be deemed unknown.
If the person’s address is unknown, the notifying officer shall inform the elected neighbourhood or village leader of the situation. The latter must then add an entry to this effect to the notification record. Additionally, the authority from which the notification emanates must make enquiries about the person’s address to the government departments and institutions which it considers relevant and request a police investigation.”
59. Before 19 March 2003 the third sentence of this section had been worded as follows:
“Additionally, the authority from which the notification emanates may, if it deems necessary, make enquiries about the person’s address to the government departments and institutions and request a police investigation.”
60. Section 35 of the same Act reads as follows:
“Where a person on whom a document has been served personally or at his or her home address in accordance with legally established procedures changes address, he or she must without delay communicate the new address to the judicial authority from which the notification emanated. In such cases all subsequent notifications must be effected at the new address.
Where [this] person has failed to communicate his or her new address and the notifying officer has been unable to ascertain this new address, a copy of the document to be served shall be posted at the entrance to the building corresponding to the old address; the date on which the copy is posted shall be treated as the date of notification.
Subsequent notifications effected in this way at the old address shall be deemed to have been effected vis-à-vis the addressee.”
61. This system was slightly amended in 2011 to take account of the database known as the “address recording system” newly established by the Directorate General of Civil Status and Citizenship of the Ministry of the Interior in order to facilitate administrative procedures.
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THE LAW
I. JOINDER OF THE CASES
67. The Court notes that the two applications are similar in terms of the facts, the primary complaints and the substantive issues which they raise. Consequently it considers it appropriate to join them in pursuance of Rule 42 § 1 of the Rules of Court.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
68. Relying on Article 6 § 3 of the Convention, the applicants alleged that their right to a court had been violated.
69. The Government contested that argument.
70. The Court reiterates that, being the master of the characterisation to be given in law to the facts of a case, it does not consider itself bound by the characterisation given by the parties (see, among other authorities, Remzi Aydın v. Turkey, no. 30911/04, § 44, 20 February 2007). In the present case it considers that it should examine the complaints in the light of Article 6 § 1, the relevant parts of which provide:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
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B. Merits
1. As regards Mr Dilipak
a) The parties’ submissions
72. The first applicant complained that he had not been informed of the action brought against him before the Ankara Civil Court of First Instance and that he had been unable to take part in the ensuing proceedings. He complained that the Civil Court had not been sufficiently diligent in seeking his address and had resorted too readily to the extreme solution of notification via publication in the press. He submitted that his address could have easily been found if the court had made enquiries with the relevant government departments and professional bodies. His status as a journalist was very well known, and he accused the Civil Court of having failed to contact the Directorate General of Press, Publications and Information, for example, despite the fact that this department was responsible for issuing press passes.
73. He also claimed that his address was known to the claimant party and that the latter had acted in bad faith on the grounds that the same lawyers had represented them during the civil and criminal proceedings and that his address had been perfectly well known during the criminal proceedings.
74. He argued that there had been a veritable conspiracy against him. In this connection, he produced documents which he submitted were from the Balyoz case file (for a summary of this case see Doğan v. Turkey (dec.), no. 28484/10, 10 April 2012, or Çakmak v. Turkey (dec.), no. 58223/10, 19 February 2013), in which he had apparently been designated as a “target” on the same basis as other journalists said to have opposed a military coup d’état.
75. The Government submitted that the right to take part in proceedings was not absolute and could be subject to reasonable restrictions in the interests of the proper administration of justice. They contended that in the present case the Civil Court had used all the resources available to it to inform the applicant of the action brought against him: the search of the premises deemed to be his home address, the request for a police search, the notice posted in the court entrance hall and, lastly, the publication in a national daily newspaper.
b) The Court’s assessment
76. The Court notes that the possibility for the parties to take part in proceedings flows from the object and purpose of Article 6 of the Convention, taken as a whole. Moreover, the principles of an adversarial hearing and equality of arms are hardly conceivable without the participation of the parties to proceedings (see, mutatis mutandis, Colozza v. Italy, 12 February 1985, § 27, Series A no. 89).
77. The Court reiterates that the Convention system requires the Contracting States to take the necessary steps to ensure the effective enjoyment of the rights guaranteed by Article 6 of the Convention (see T. v. Italy, 12 October 1992, § 29, Series A no. 245‑C, and Vaudelle v. France, no. 35683/97, § 52, ECHR 2001‑I). This presupposes above all that the person against whom the judicial proceedings have been commenced should be informed of this fact.
78. Furthermore, the Court reiterates that it has already examined, in cases concerning criminal proceedings (see, for example, Sejdovic v. Italy [GC], no. 56581/00, § 82, ECHR 2006‑II), that although proceedings which take place in the accused’s absence are not of themselves incompatible with Article 6 of the Convention, a denial of justice nevertheless undoubtedly occurs where a person convicted in absentia is unable subsequently to obtain from a court which has heard him a fresh determination of the merits of the charge, in respect of both law and fact, where it has not been established that he has waived his right to appear and to defend himself (see Colozza, cited above, § 29, and Einhorn v. France (dec.), no. 71555/01, § 33, ECHR 2001-XI), or that he intended to escape trial (see Medenica v. Switzerland, no. 20491/92, § 55, ECHR 2001‑VI).
79. The Court also reiterates that while neither the letter nor the spirit of Article 6 of the Convention prevent a person from waiving, of his or her own free will, either expressly or tacitly, the safeguards on a fair trial (see Kwiatkowska v. Italy (dec.), no. 52868/99, 30 November 2000), a waiver of the right to take part in the hearing must, if it is to be effective for Convention purposes, be established in an unequivocal manner and be attended by minimum safeguards commensurate to its importance (see Poitrimol v. France, 23 November 1993, § 31, Series A no. 277‑A); nor must it not run counter to any important public interest (see Håkansson and Sturesson v. Sweden, 21 February 1990, § 66, Series A no. 171-A).
80. The Court considers it necessary, when examining proceedings that fall within the civil-law aspect of Article 6, to draw inspiration from its approach to criminal-law matters (see paragraph 78 above). In fact, it cannot see any reason for adopting a different approach. In the present case, therefore, it must begin by determining whether the authorities took the necessary steps to inform the first applicant of the existence of the proceedings, and whether the latter had waived his right. If not, it will ascertain whether domestic law provided the applicant with the appropriate means to secure a fresh adversarial hearing.
81. The Court observes that the Civil Court first of all attempted to serve the summons and statement of claim at the address supplied by the claimant party and that, since the applicant was untraceable at this address, it subsequently decided to order a police search. It notes that the Civil Court sent the fresh notification to the address provided by the police and that this attempt also failed because the applicant was not at this address either.
82. The Court notes that there is nothing in the case file to show how the police went about finding the applicant’s supposed address or what other police action was taken. Nor did the Government mention this subject in their observations.
83. The Court notes that the Civil Court would not appear to have looked into the steps taken by the police or considered the advisability of further action before resorting to notification via publication in the press, despite the fact that the latter approach often has negative consequences for the addressee.
84. In this context, it observes that no attempts were apparently made to contact the civil status registry, professional bodies or the department responsible for issuing press passes, despite the fact that it was well known that the applicant was a journalist.
85. In short, the Court has found no evidence that the action that could legitimately and reasonably have been expected of the authorities was ever taken; indeed, all the evidence points to the contrary. The Court considers it quite disconcerting that as soon as the judgment was ready for execution, the applicant’s real address was found without any difficulty, less than a week after that judgment had become final.
86. Accordingly, the Court considers that the applicant was not given the opportunity to participate in the proceedings against him and to defend his interests.
87. Moreover, it notes that there is nothing to suggest that the applicant had waived his right to a fair trial. It has not been demonstrated, or even alleged, that the applicant had been apprised of the proceedings from another source. The main precondition for waiving a right is that the person concerned must know of the existence of the right in question and, therefore, of the related proceedings.
88. Accordingly, it remains to be determined whether domestic law afforded the applicant, with sufficient certainty, an opportunity to appear at a new trial.
89. In the instant case, the Court observes that three appeals were lodged in order to achieve that aim.
90. First of all, the applicant lodged an appeal on points of law to challenge the validity of the notification, alleging that there had been shortcomings in the attempts to ascertain his address and that the claimant party had acted in bad faith since it must have known his address. The Court observes that this appeal was dismissed by the domestic courts, which held (without providing reasoned arguments) that notification had been validly effected via publication in the press.
91. Secondly, the Ministry of Justice ordered an appeal to be lodged in the interests of the law. As its name would suggest, however, this remedy is only relevant from a legal perspective, inasmuch as its aim is to ensure consistency of the law by eliminating an unlawful decision. Indeed, the possible setting aside of a judgment in such cases has no effect on the situation of the parties to proceedings. At all events, the Court notes that in the instant case this remedy was dismissed by the Court of Cassation.
92. Thirdly, the applicant recently lodged an application to reopen proceedings. The Court observes, however, that this application is still pending and that the court applied to has not yet adjudicated on its admissibility. It also notes that the conditions for using such a remedy do not include the inability of one of the parties to take part in the initial proceedings because of lack of notification or of any other factor invalidating the notification. It further notes that the applicant based his application not on this circumstance but on the discovery of new facts germane to the merits of the case, that is to say the instigation of a criminal investigation in respect of the members of the National Security Council who were involved in the decisions taken in the wake of the meeting of 28 February 1997.
93. Consequently, the Court considers that the application to reopen proceedings will not afford the applicant, with sufficient certainty, an opportunity to appear at a new trial to present his defence. Moreover, it notes that the Government have never stated the contrary.
94. In conclusion, the Court considers that the requisite steps were not taken to inform the first applicant of the proceedings against him and that the applicant was not given an opportunity to appear at a new trial, despite the fact that he had not waived his right to be present.
95. There has accordingly been a violation of Article 6 of the Convention.
2. As regards Mr Karakaya
(a) The parties’ submissions
96. The second applicant complained that he had not been informed of the action brought against him by the Ankara Civil Court of First Instance and that he had been given no oportunity to take part in the ensuing proceedings. He alleged that the Civil Court had not shown sufficient diligence in seeking his address and had considered valid the service of documents at an address other than his actual home address, on an individual who was not his employee. He also submitted that his address could have been ascertained from a number of government departments or from the court which had ruled on the criminal aspect of the case.
97. The Government contended that there had been no infringement of the applicant’s rights because they took the view that he had been validly notified of the proceedings against him.
(b) The Court’s assessment
98. The Court repeats the principles which it reiterated above (see paragraphs 76 to 79 above).
99. It observes that the Ankara Civil Court of First Instance followed the same approach as for the first applicant by first of all attempting to serve the summons and statement of claim at the address provided by the claimant party and then, since the second applicant was untraceable at this address, deciding to order a police search. The Court notes that the Civil Court sent the second notification to the address supplied by the police, that in the addressee’s absence it was handed over to a certain N.G., who was described as an “authorised employee” of the applicant, and that the notification thus performed was considered to have been effected vis-à-vis the applicant. The Court also notes that when the judgment had to be served on the applicant at the end of the proceedings, the same address was used, and as the applicant was not to be found at this address and had not given the Civil Court any other address, the notification was deemed to have been effected vis-à-vis the addressee in accordance with the legislation in force.
100. The Court notes, however, that the relevant legislation, specifically section 35(2) of the Notification Act, provides that the notifying officer must post up a copy of the document to be served at the old address. It observes that in the present case the record of the notification of the judgment makes no mention of the document in question having been posted up.
101. The Court nevertheless considers this aspect fairly unimportant.
102. The Court holds that although the presumption of personal notification as set out in section 35(2) of the Notification Act is not in itself incompatible with the Convention, efforts must nevertheless be made to ensure that the most recent known address really is that of the applicant or that the latter has been informed of the proceedings.
103. On this specific point, the Court notes that according to the applicant, the address which was provided by the police and to which the notifications were sent was not his address.
104. It notes that it cannot be established from the case file how the police proceeded in order to ascertain that the said address was that of the applicant or what other action they took, and that the Government have submitted no information on this matter.
105. The Court therefore considers that there is nothing to suggest that any serious efforts were made, for example by contacting the civil status registry, professional bodies, the department responsible for issuing press passes or the court which dealt with the criminal aspect of the case, in order to determine the applicant’s address.
106. Furthermore, the Court reiterates that there is nothing to suggest that the applicant waived his right to a fair trial. It has not been demonstrated, or even alleged, that the applicant had been apprised of the proceedings from other sources. The main precondition for waiving a right is that the person concerned must know of the existence of the right in question and, therefore, of the related proceedings.
107. As to whether it was possible to secure the reopening of the proceedings, the Court, with reference to the aspects set out above relating to the first applicant, considers that no such possibility existed.
108. The Court therefore concludes that there has been a violation of Article 6 of the Convention.
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FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Decides to join the applications;
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3. Holds that there has been a violation of Article 6 of the Convention;
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Done in French, and notified in writing on 4 March 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Guido Raimondi
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Spano is annexed to this judgment.
G.R.A.
S.H.N.
CONCURRING OPINION OF JUDGE SPANO
1. I agree with the majority in finding a violation of Article 6 § 1 ... of the Convention.
2. In paragraphs 76-79 of the judgment the Court sets out the principles on conviction in absentia deriving from Sejdovic v. Italy [GC], no. 56581/00, § 82, ECHR 2006 II; Colozza v. Italy, 12 February 1985, § 33, Series A no. 89; and Medenica v. Switzerland, no. 20491/92, § 55, ECHR 2001 VI. I would like to stress here that this case would seem to be the first one in which the Court has been squarely confronted with the question whether these principles can be transposed to proceedings which come under the civil head of Article 6 § 1. The Court answers that question in the affirmative in a general and abstract manner (see paragraph 79).
3. In my view, the Court should have adopted a narrower and more cautious approach to this novel issue and confined the application of these principles to the facts of this particular case, where the applicants were not duly notified of the domestic proceedings in accordance with the applicable rules on civil procedure. The domestic court found against them without their ever having an opportunity to reply to the claims submitted, despite the fact that the proceedings before the court involved the applicants’ right to freedom of expression as guaranteed by Article 10 of the Convention ...
4. In view of these specific facts, and especially the civil right at stake, I concur with my colleagues that there has been a violation of Article 6 § 1 in this case. However, the question whether there are grounds for the principles of conviction in absentia to be applied in other circumstances coming under the civil head of Article 6 § 1 should, in my view, have been left open and decided on a case-by-case basis. Prudence in the development of the law in the area of civil procedure is essential for an international court confronted with a wide range of approaches to the organisation of domestic procedural systems.
[1]. This is a reference to the ritual formula used at Muslim funerals, whereby those present waive all rights vis-à-vis the deceased.