PROCEDURE

The case originated in an application (no. 50172/06) 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 a Turkish national, Mr Engin Erkol (“the applicant”), on 7 December 2006.

The applicant was represented by Mr Nedim Şenol Çelik, a lawyer practising in Trabzon. The Turkish Government (“the Government”) were represented by their Agent.

The applicant alleged, in particular, that despite the suspension of criminal proceedings against him, wording employed subsequently by a number of domestic courts had breached his right to the presumption of innocence within the meaning of Article 6 § 2 of the Convention.

On 27 May 2009 the President of the Second Section decided to give notice of the application to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1968 and lives in Trabzon.

The facts, as presented by the applicant and as they appear from the documents submitted by the parties, are as follows.

The applicant used to work as the driver of a security van for Akbank, a private bank in Turkey (hereinafter “the bank”). On 16 July 1998, on their return from one of the branches of the bank, the applicant and his two colleagues in the same van realised that a sum of money (approximately 10,000 euros (EUR)) was missing.

A. Criminal proceedings against the applicant

On 21 July 1998 the bank made an official complaint to the Trabzon prosecutor against the applicant and his two colleagues. On the same day the applicant was arrested and questioned by police. The applicant denied the accusations against him, and told the police officers that when they had visited the branch he had stayed in the van and that his colleague had gone in to collect the money. On his return to the van his colleague had put the bag containing the money in the back of the van. On their return to the bank's headquarters in Trabzon he and his colleagues had realised that the sum of 20,000 Turkish liras (TRL) was missing. They had then gone back to the branch and looked for the money, without success.

On 3 September 1998 the Trabzon prosecutor filed an indictment formally charging the applicant and his two colleagues with the offence of breach of trust.

On 22 December 2000, while the criminal proceedings against the applicant and his colleagues were in progress, Law no. 4616 entered into force. Law no. 4616 provides for the suspension of criminal cases in respect of certain offences committed before 23 April 1999.

On 22 December 2003 the Seventh Chamber of the Istanbul Assize Court considered the following: “...[the applicant] has committed the offence of breach of trust. Nevertheless, the offence was committed before 23 April 1999 and it thus falls within the ambit of Law no. 4616. It is accordingly decided not to convict [the applicant] but to suspend the proceedings in accordance with Law no. 4616”.

On 13 February 2004 the applicant appealed against the Assize Court decision, arguing that if the proceedings had not been suspended his innocence would have been proved.

On 8 June 2006 the Court of Cassation decided that the Istanbul Assize Court decision was not appealable, because it was not a decision containing a definitive conclusion. It considered, however, that the applicant's appeal could be examined as an “objection” and forwarded it to the Court of Cassation's prosecutor for the necessary action to be taken.

On 25 August 2006 the Eighth Chamber of the Istanbul Assize Court examined the objection and rejected it. This decision was communicated to the applicant on 13 October 2006.

B. Civil proceedings brought by the bank against the applicant

On 24 August 1998 the applicant's contract of employment was terminated by the bank.

On 30 August 1998 lawyers representing the bank lodged a claim with the Trabzon Labour Court for the return of the missing money from the applicant and his two colleagues.

On 17 June 2004 the Trabzon Labour Court ordered the applicant and his two colleagues to repay the bank the missing money, with the “highest rates of interest applicable”. In its decision the Trabzon Labour Court considered the following: “The case concerns the compensation of the plaintiff bank's damages caused by the respondents who worked for the plaintiff bank and who, instead of bringing [a sum of] money they had collected from one of the bank's branches back to their branch of the bank, embezzled it...According to the Istanbul Assize Court's decision of 22 December 2003, the respondents committed the offence of breach of trust. Nevertheless, the offence was committed before 23 April 1999 and it thus fell within the ambit of Law no. 4616. It was accordingly decided not to convict the respondents but to suspend the proceedings in accordance with Law no. 4616...”.

The applicant appealed against the decision and drew the Court of Cassation's attention to the fact that he had not been convicted of any offence by the Istanbul Assize Court, which in fact had decided to suspend the proceedings. The Court of Cassation quashed the decision in so far as it concerned the applicable rate of interest.

On 14 July 2004 the bank brought proceedings to enforce the decision, with a view to recovering the money.

On 19 July 2005 the Trabzon Labour Court decided, in line with the Court of Cassation decision, that a lower rate of interest should apply. An appeal lodged against this decision by the applicant was rejected by the Court of Cassation on 26 September 2005.

C. Civil proceedings brought by the applicant against the bank

On 22 September 1998 the applicant and his two colleagues brought a case against the bank before the Trabzon Labour Court, claiming compensation for their dismissal.

On 21 September 2004 the Trabzon Labour Court rejected the applicant's claim for compensation for his dismissal. It considered the following: “The case concerns the compensation claim for the dismissal of the plaintiffs who worked for the respondent bank and who, instead of bringing [a sum of] money they had collected from one of the bank's branches back to their branch of the bank, embezzled it...According to the Istanbul Assize Court's decision of 22 December 2003, the respondents committed the offence of breach of trust but that the proceedings were suspended in accordance with Law no. 4616...”.

The applicant appealed against the decision, submitting that the criminal proceedings against him had been suspended by the Istanbul Assize Court. He further argued that the proper course of action for the Labour Court would have been to collect its own evidence, hear witnesses and reach its conclusion on the basis of that evidence. The applicant argued that conclusions reached by criminal courts were not binding on civil courts. If a definitive conclusion was reached by a criminal court, the civil court examining the same matter could adopt that criminal court's conclusion if it so wished. Nevertheless, in the present case, waiting for a period of six years without taking any action and then adopting the criminal court's decision as if it contained a definitive finding of guilt was not compatible with the procedure or the applicable legislation.

On 26 May 2005 the Court of Cassation quashed the Labour Court decision of 21 September 2004. It held that the Istanbul Assize Court decision had suspended the proceedings and not convicted the applicant. The Labour Court had erred in rejecting the applicant's claim without hearing any of the witnesses proposed by him or obtaining expert reports or even examining the Istanbul Assize Court's case file.

On 13 October 2005 the Trabzon Labour Court repeated its decision of 21 September 2004. The Labour Court held the following: “The plaintiffs caused financial loss to the bank by embezzling the money and knew that their employment had been terminated because of that. Any expectation on the part of the plaintiffs of receiving compensation for their dismissal would therefore damage confidence in the judiciary and, for that reason, our court will not be adhering to the Court of Cassation decision of 26 May 2005”.

On 24 May 2006 an appeal lodged by the applicant against the Labour Court decision was rejected by the Court of Cassation, which considered that the Labour Court decision was in accordance with its decision of 26 May 2005. This decision was communicated to the applicant on 1 August 2006.