KAYA proti Turecku

SECOND SECTION

FINAL DECISION

Application no. 43517/02
by Mehmet Sait KAYA
against Turkey

The European Court of Human Rights (Second Section), sitting on 26 September 2006 as a Chamber composed of:

Mr J.-P. Costa, President,
Mr I. Cabral Barreto,
Mr R. Türmen,
Mr M. Ugrekhelidze,
Mrs A. Mularoni,
Mrs E. Fura-Sandström,
Mr D. Popović, judges,
and Mrs S. Dollé, Section Registrar,

Having regard to the above application lodged on 7 November 2002,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together.

Having regard to the partial decision of 20 September 2005,

Having regard to the observations submitted by the respondent Government,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Mehmet Sait Kaya, is a Turkish national who was born in 1963 and lives in Izmir. He was represented before the Court by Mr B. Özdemir, a lawyer practising in Izmir.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

On 11 September 2001 a person who engaged the applicant as a repairman filed a complaint with the Urla Public Prosecutor, alleging that he had been menaced by the applicant. The Public Prosecutor took the statements of the complainant’s witnesses.

On 12 October 2001 the applicant gave statements at the Urla Police Station, where he denied all allegations against him.

On 6 November 2001 the Urla Public Prosecutor imposed a fine of 142,665,600[1] Turkish liras (TRL) on the applicant for menacing others (sair tehdidat), in accordance with Articles 119 and 191 of the Criminal Code. This order was notified to the applicant on 6 December 2001.

Since the applicant failed to pay the fine within ten days, as required by the payment order, on 28 December 2001 the public prosecutor filed an indictment with the Urla Criminal Court, charging the applicant under Articles 119 and 191 of the Criminal Code.

On 20 June 2002, the Urla Magistrate’s Court delivered a criminal decree (ceza kararnamesi), sentencing the applicant to a penalty of TRL 213,548,400[2]. However, considering his clean record, the court decided to defer the applicant’s sentence.

On 19 July 2002 the applicant filed an objection against the criminal decree. Besides disputing the facts of the alleged incident, he maintained that he had been deprived of the guarantees of a fair trial before the Urla Magistrate’s Court, provided by Article 6 of the Convention. He argued, in particular, that as the court had decided on the basis of the case-file, he had been deprived of his right to defend himself, submit evidence, put questions to the witnesses and have witnesses on his behalf heard by the court. He also complained of the fact that the court had decided on the basis of the witness statements previously taken by the Public Prosecutor, rather than questioning them itself.

On 26 July 2002 the Urla Assize Court confirmed the facts of the incident as presented by the complainant and dismissed the applicant’s objection, without making any remarks concerning the fairness of procedure.

B. Relevant domestic law

The Criminal Code provides as relevant:

Article 119

“... No legal investigation will be initiated against the offender, provided that the above-mentioned payments, together with the charges, are paid within ten days following notification by the Public Prosecutor;

When the case is transferred to court, if the accused pays within 10 days the sum calculated according to the provisions of this article, the case will be struck out of the list.”

Article 191

“The person who menaces someone with threats of causing harm, will be sentenced to six months of imprisonment. ...

In case of other types of threats the fine is five thousand four hundred Turkish liras. No investigation will be initiated unless the injured party files a complaint.”

COMPLAINTS

The applicant complained that the fine ordered by the public prosecutor and its approval by the criminal courts, with no possibility of an effective appeal to the Court of Cassation, had deprived him of his right to a “tribunal” for the purposes of Article 6 § 1 of the Convention.

Moreover, the applicant complained under Article 6 § 3 (b), (c) and (d) of the Convention that he did not have adequate time and facilities for the preparation of his defence and that he had not been allowed to defend himself in person. Furthermore, he contended that he had been deprived of his right to examine witnesses against him and to obtain the attendance and examination of witnesses on his behalf.

THE LAW

Notice of the application was given to the Government, who submitted their observations on the admissibility and merits of the applicant’s complaints on 25 January 2006. On 30 January 2006 the applicant was invited to submit his observations in reply. However, the Court notes that the applicant has failed to do so. Moreover, he has failed to respond to a registered letter dated 16 May 2006, warning him of the possibility that his case might be struck out of the Court’s list if he did not reply.

Having regard to Article 37 § 1 (a) of the Convention, the Court concludes that the applicant does not intend to pursue the application. Furthermore, in accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the examination of this application to be continued. Accordingly, the application of Article 29 § 3 of the Convention should be discontinued.

For these reasons, the Court unanimously

Decides to strike the application out of its list of cases.

S. Dollé J.-P. Costa
Registrar President

[1]. Equivalent to approximately 103 euros (EUR) at the time of the events.

[2]. Equivalent to approximately to EUR 162 euros at the time of the criminal decree.