TÜRKMEN proti Turecku

SECOND SECTION

CASE OF TÜRKMEN v. TÜRKİYE

(Application no. 27818/17)

JUDGMENT

STRASBOURG

3 March 2026

This judgment is final but it may be subject to editorial revision.

In the case of Türkmen v. Türkiye,

The European Court of Human Rights (Second Section), sitting as a Committee composed of:

Jovan Ilievski, President,
Oddný Mjöll Arnardóttir,
Stéphane Pisani, judges,
and Dorothee von Arnim, Deputy Section Registrar,

Having regard to:

the application (no. 27818/17) against the Republic of Türkiye lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 28 February 2017 by a Turkish national, Mr Özay Türkmen (“the applicant”), who was born in 1970, lives in Ankara and was represented by Mr H. Tepe, a lawyer practising in Ankara;

the decision to give notice of the complaints concerning the right to a fair trial to the Turkish Government (“the Government”) represented by their Agent at the time, Mr Hacı Ali Açıkgül, former Head of the Department of Human Rights of the Ministry of Justice of the Republic of Türkiye, and to declare inadmissible the remainder of the application,

the Government’s observations;

the decision to reject the Government’s objection to the examination of the application by a Committee;

Having deliberated in private on 3 February 2026,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1. The case concerns, under Article 6 § 1 of the Convention, the alleged unfairness of proceedings whereby the applicant, owner of a liquor store, sought to challenge a fine, imposed on him under section 7 of Law no. 4250 on Monopoly of Alcohol and Alcoholic Beverages on the basis of police reports, for selling alcohol outside the permitted selling hours. In particular, the application concerns the domestic courts’ alleged failure to hold a public hearing in reviewing the fine and the applicant’s alleged inability to effectively challenge it.

THE COURT’S ASSESSMENT

ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

1. Admissibility

2. The Government submitted that the criminal limb of Article 6 was not applicable to the proceedings in the present case for the following reasons. Firstly, the act for which the applicant had been fined was not set out in the Criminal Code and the fine had been imposed as a result of administrative proceedings. Administrative fines were determined by an administrative authority and they could not be classified as a criminal sanction, as their aim was deterrent, but not punitive. Lastly, administrative fines could neither be entered into criminal records nor converted to imprisonment in the event of non-payment.

3. The applicant failed to submit his observations on the admissibility and merits of the application within the time-limit allotted to him.

4. The Court reiterates that the assessment of the applicability of Article 6 under its criminal limb is based on three criteria, commonly known as the “Engel criteria” (see Engel and Others v. the Netherlands, 8 June 1976, § 82, Series A no. 22). The first criterion is the legal classification of the offence under national law, the second is the very nature of the offence, and the third is the nature and degree of severity of the penalty that the person concerned risks incurring (see, among other authorities, Gestur Jónsson and Ragnar Halldór Hall v. Iceland [GC], nos. 68273/14 and 68271/14, §§ 75‑98, 22 December 2020).

5. In several other cases against Türkiye, the Court has already held that the criminal head of Article 6 of the Convention was applicable to proceedings concerning minor offences under various laws which were also aimed at a specific group with a particular status, and which were also punishable by administrative fines, an issue which is almost identical to the one under consideration in the present case. For instance, the Court found that the criminal limb of Article 6 § 1 of the Convention was applicable to administrative fines imposed on applicants for breaches of the Social Security Act (see Hüseyin Turan v. Turkey, no. 11529/02, §§ 15-21, 4 March 2008), the Minor Offences Act (see Sancaklı v. Turkey, no. 1385/07, §§ 30-31, 15 May 2018), the Regulation Concerning Group A Mines (see Özmurat İnşaat Elektrik Nakliyat Temizlik San. ve Tic. Ltd. Şti. v. Turkey, no. 48657/06, § 25, 28 November 2017), the Road Traffic Act (see Şimşek, Andiç and Boğatekin v. Turkey (dec.), nos. 75845/12 and 2 others, § 23, 17 March 2020), and the Law on Associations (see Korkut and Amnesty International Türkiye v. Türkiye, no. 61177/09, § 45, 9 May 2023).

6. As regards the first criterion, it is clear that the impugned offence was administrative, and not criminal, under section 7 of Law no. 4250 on Monopoly of Alcohol and Alcoholic Beverages. However, this element alone cannot be decisive. As for the second criterion, the Court notes that the offence in issue, namely the failure to comply with the authorised hours for the retail sale of alcohol, was a misdemeanour and punishable by a fine of not less than 30,454 Turkish liras (TRY – approximately 9,458 euros (EUR) at the material time). In the present case, the applicant received an administrative fine of TRY 50,000 (equivalent to EUR 15,152 at the material time). In the same vein, and contrary to the Government’s contention, the fact that the impugned fine was issued by an administrative body and not a court makes no difference as regards the question of the applicability of the criminal limb of Article 6 of the Convention to the facts of the present case (compare Grande Stevens and Others v. Italy, nos. 18640/10 and 4 others, § 100, 4 March 2014, with further references). With regard to the third criterion, the Court observes that the impugned administrative fine was deterrent and punitive in nature, as it was not a compensation for damage caused by the applicant (see Hüseyin Turan, cited above, § 19), but rather a measure to deter the latter from committing the offence again.

7. The Court further notes that the Constitutional Court did not reject the applicant’s complaints under Article 6 for being incompatible ratione materiae with the provisions of the Constitution. It examined the merits of the applicant’s complaints under Article 6 and declared them inadmissible as manifestly ill-founded.

8. In the light of the above, the Court finds that the criminal limb of Article 6 of the Convention is applicable to the proceedings in the present case. It follows that the Government’s objection of the incompatibility ratione materiae with Article 6 of the Convention must be dismissed.

9. The Court further notes that the application is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

2. Merits
   1. The parties’ submissions

10. The applicant submitted that he had not been given an opportunity to be heard in the proceedings, in breach of his right to a fair hearing as provided for in Article 6 § 1 of the Convention. In his view, the domestic courts’ judgments had been based solely on the findings of the police report, which did not reflect the truth, as his store had been closed at the material time. In the same vein, the impugned report lacked any documentary evidence and did not contain the signature of the individual identified as C.A., to whom, the report alleged, the four bottles of beer had been sold.

11. The Government submitted that the magistrates’ courts had had the discretion to determine whether it was necessary to hold a hearing under Article 271 of the Code of Criminal Procedure and, in the present case, they had not found it necessary to hold a hearing. Moreover, the applicant had neither provided a concrete reason as to his oral hearing request before the domestic courts nor asked the domestic courts to summon witnesses. In any event, the case before the domestic courts had not raised any factual issues and the report at issue had been signed by three police officers.

12. The Government further argued that the domestic courts, following a thorough review of the case file, had adequately established the facts constituting the basis for the imposition of the impugned administrative fine before deciding on the merits of the case. The Government submitted that the absence of a hearing, considering the overall fairness of the case, had not in itself prejudiced the applicant’s right to a fair trial.

2. The Court’s assessment

(a) General principles

13. The general principles concerning the right to an oral and public hearing guaranteed under Article 6 § 1 can be found in Jussila v. Finland ([GC], no. 73053/01, §§ 40-45, ECHR 2006–XIII), Özmurat İnşaat Elektrik Nakliyat Temizlik San. ve Tic. Ltd. Şti. (cited above, §§ 27-30), Suhadolc v. Slovenia ((dec.), no. 57655/08, 17 May 2011), and Flisar v. Slovenia (no. 3127/09, §§ 33-35, 29 September 2011). In particular, the Court accepted that it may be justified dispensing with an oral hearing also in the criminal sphere where the issues to be dealt with do not raise any question of fact or law which could not be adequately resolved on the basis of the case file. An oral hearing may not be required where there are no issues of credibility or contested facts which necessitate an oral presentation of evidence or cross‑examination of witnesses and where the accused was given an adequate opportunity to put forward his case in writing and to challenge the evidence against him (ibid.).

(b) Application of these principles to the instant case

14. In the present case, the Tobacco and Alcohol Market Regulatory Authority (“the TAPDK”) imposed a fine on the applicant on the grounds that he had sold four bottles of beer to a certain C.A. after the hours permitted for the retail sale of alcoholic beverages. The offence for which the applicant was fined does not as such belong to the traditional categories of criminal law to which the criminal-head guarantees of Article 6 apply with their full stringency. In such cases, an oral hearing may not be required where there are no issues of credibility or contested facts (see paragraph 13 above).

15. However, unlike, for instance, in Suhadolc (cited above), which concerned evidence obtained by means of an objective method, namely the use of a speed-measuring device and an alcohol test, the present case concerns an offence which was personally observed by police officers and where those officers’ observations were the sole basis for the applicant’s conviction. In such cases, an oral hearing may be essential for the protection of the defendant’s interests in that it could put to the test the credibility of the police officers’ findings (see Milenović v. Slovenia, no. 11411/11, § 32, 28 February 2013).

16. In the present case, the applicant sought the annulment of the fine before the Ankara Second Magistrates’ Court, asking for a public hearing to be held and disputing the police officers’ observation that he had sold alcoholic beverages after the permitted hours. In doing so, the applicant submitted that the police officers had drawn up the impugned report outside his shop and without his participation and that, in any event, his shop had been closed at that time because he had been at his house. Moreover, and more importantly, the applicant further argued that the report drawn up by the police had contained neither the signature nor the address or telephone number of C.A. to whom he had allegedly sold four bottles of beer. Accordingly, the Court dismisses the Government’s argument that the applicant had failed to provide a concrete reason for his hearing request before the domestic courts.

17. The Court further notes that the Ankara Second Magistrate’s Court dismissed the applicant’s objection against the decision of the TAPDK without holding a hearing or indicating why it decided to dispense with one (compare also, mutatis mutandis, Gabriel v. Austria, no. 34821/06, § 31, 1 April 2010; Kugler v. Austria, no. 65631/01, § 52, 14 October 2010; and, by contrast, Jussila, cited above, § 48). Moreover, the Ankara Third Magistrates’ Court, which reviewed the applicant’s objection to the said dismissal decision of the Ankara Second Magistrates’ Court, was prevented by law from holding a hearing. This was because section 29(2) of the Misdemeanours Act enjoins that such assessments must be made on the basis of the case file.

18. In the Court’s view, as the applicant contested the administrative fine imposed on him and challenged certain factual aspects of the case, including the credibility of certain police statements concerning his conduct, the domestic courts could not, as a matter of fair trial, have properly determined the facts or the applicant’s guilt without a direct assessment of the evidence at an oral hearing, which they failed to hold.

19. There has accordingly been a violation of Article 6 § 1 of the Convention.

20. In view of the finding above, the Court does not consider it necessary to further examine whether the applicant could effectively challenge the fine imposed in accordance with 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.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

21. The applicant did not submit any just satisfaction claims within the time-limit allotted to him, and the Court discerns no exceptional circumstances requiring it to award him compensation in respect of non‑pecuniary damage (see Nagmetov v. Russia [GC], no. 35589/08, §§ 74‑82, 30 March 2017). Accordingly, there is no call for the Court to rule on this matter.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;
2. Holds that there has been a violation of Article 6 § 1 of the Convention owing to the lack of a public hearing in the proceedings concerning the judicial review of the administrative fine imposed on the applicant;
3. Holds that there is no need to examine the admissibility and merits of the remaining complaints under Article 6 § 1 of the Convention.

Done in English, and notified in writing on 3 March 2026, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Dorothee von Arnim Jovan Ilievski
Deputy Registrar President