CASE OF ÖZMURAT İNŞAAT ELEKTRİK NAKLİYAT TEMİZLİK SAN. VE TİC. LTD. ŞTİ. v. TURKEY

1. The case originated in an application (no. 48657/06) 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 Özmurat İnşaat Elektrik Nakliyat Temizlik San. ve Tic. Ltd. Şti, a company registered in Turkey.
2. The applicant was represented by Mr İ. Çatal, a lawyer practising in Mersin. The Turkish Government (“the Government”) were represented by their Agent.
3. The applicant alleged, in particular, that it had not had a fair trial in the proceedings concerning its objection to an administrative fine, in that the domestic court had refused to hold a hearing despite its requests to that effect.
4. On 29 November 2012 the application was communicated to the Government.
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant is a construction company, which was established in 2003 and has its seat of business in Mersin.
6. In 2005, after having obtained a permit to operate a mine, the applicant opened a mine in a plot of land of 8,700 m ² which it owned.
7. During the course of its mining activities, on 31 January 2006 an audit commission under the Mersin Provincial Administration conducted an inspection. Subsequently, the commission drew up a report, proposing that the applicant should be ordered to pay 131,250 Turkish liras (TRY ) [1] for quarrying substantial amounts of sand in the neighbouring plots of 5,000 m ², outside of its licensed area.
8. On 8 March 2006 the Tarsus Provincial Administration informed the applicant that it had decided to impose the proposed administrative fine pursuant to Article 19 of the Regulation Concerning Group A Mines ( A Grubu Madenlerle İlgili Uygulama Yönetmeliği ).
A. The criminal proceedings against certain officials
9. On 8 February 2006 the applicant company ’ s president, Ü .T., filed a complaint with the Mersin Public Prosecutor ’ s office, stating that one of the auditors in the commission, M.A.L., had told him that the fine had initially been calculated as TRY 500,000 and that he had reduced that amount. Ü.T. claimed that M.A.L. had asked him to pay TRY 10,000 in return and had threatened to have his mine closed if he refused to do so. He indicated that M.A.L. had acted together with a certain F.G., an official at the Provincial Administration.
10. In his police statements on 9 February 2006, Ü.T. described his conversations with M.A.L. in detail. He noted, inter alia, that after the inspection of the audit commission, he had conducted another inspection with an official from the Directorate of Land Registration, and had calculated that he had trespassed on the neighbouring plots by only 400 metres. He also explained that he had acted as an undercover agent in line with the directions of the Public Prosecutor to catch the perpetrators in flagrante delicto. Accordingly, the police gave him TRY 10,000 and noted down the serial numbers of the banknotes. He stated that in line with the instructions of M.A.L. and F.G., he had given the money to a third person, who had received it in the name of the other two.
11. Subsequently, on 16 February 2006 the Mersin Public Prosecutor issued an indictment against M.A.L. and F.G., accusing them of extortion.
12. On 13 May 2011 the Mersin Assize Court found the two officials guilty as charged. The appeal proceedings with regard to that judgment are still pending before the Court of Cassation as of September 2017.
B. The proceedings concerning the applicant ’ s objection to the administrative fine
13. In the meantime, on 17 April 2006 the applicant had filed an objection with the Tarsus Magistrates ’ Court and requested a stay of execution of the fine. It informed the court of the criminal proceedings pending against certain officials involved, in which they were being tried for extortion. By a subsequent petition dated 5 June 2006, the applicant also requested the court to hold an oral hearing, to carry out an on-site examination, and to hear its witnesses in order to better evaluate the credibility of the inspection report the fine was based on.
14. On 13 June 2006, the Tarsus Magistrates ’ Court rejected the applicant ’ s requests for an oral hearing and on-site examination without indicating any reasons for its decision. Relying on the inspection report drawn up on 31 January 2006, the court rejected the applicant ’ s objection.
15. The applicant objected to that decision, arguing that the fine had been unlawfully imposed on it and that the Magistrates ’ Court had failed to adequately assess the case as it had not held a hearing. It drew the court ’ s attention once again to the criminal proceedings against the officials involved.
16. On 10 July 2006 the Tarsus Assize Court rejected the applicant ’ s objection without holding a hearing.
17. On 7 March 2008 the administration seized the plot of land where the applicant conducted mining activities due to the latter ’ s failure to pay the administrative fine.
A. Regulation Concerning Group A Mines
18. Article 19 of the Regulation Concerning Group A Mines provides, inter alia, that those who carry out mining activities outside of the permitted area in their licences will have administrative fines imposed on them.
B. Misdemeanours Act (Law no. 5326)
19. The relevant sections of the Misdemeanours Act read:
“ 1. Objections to administrative sanctions or fines shall be brought before criminal magistrates ’ courts ... ”
4. The court may hear the parties on a set day and [at a set] time, either at the parties ’ request or on its own motion.
7. After having heard the submissions of both parties and having evaluated all the evidence in its possession, the court shall give the party against whom the fine or sanction was issued [the opportunity] to make a final statement ... The court shall render its final decision in the presence of both parties.
a. reject the objection if it finds the fine or sanction to be lawful;
b. annul the fine or sanction if it finds it to be unlawful;
“1. An objection to a decision of a magistrates ’ court may be lodged before the nearest assize court, within seven days following the service of the decision on the parties;
2. The assize court shall examine the objection on the basis of the case file [without holding a hearing].
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
20. The applicant complained that the proceedings had been unfair, in that the domestic court had not held an oral hearing and had rejected its objection to the administrative fine without having examined the relevant evidence. It relied on Article 6 § 1 of the Convention which, in so far as relevant, reads as follows:
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal established by law. ...”
21. The Government stated that the Tarsus Magistrates ’ Court had used its discretionary power under section 28 § 4 of the Misdemeanours Act and examined the applicant ’ s objection without holding a hearing. They argued that the assessment of the applicant ’ s objection had not required an oral hearing and could adequately be done by the domestic court on the basis of the case file, as the mining operations conducted by the applicant outside of its licenced area had been a purely technical matter, established by an expert report and supported by sketch maps. They further noted that in his statements to the police, the president of the applicant company had also accepted that his company had acted in violation of the mining permit, although for a smaller area than that indicated in the inspection report. Consequently, the Government considered that, in the absence of additional information which could be obtained by means of hearing the applicant ’ s legal representative or witnesses, and taking account of the concerns for efficiency in the handling of such cases, the lack of a hearing had not caused prejudice to the applicant ’ s right to a fair hearing.
22. The Court notes that no plea of inadmissibility on account of lack of jurisdiction ratione materiae was made by the Government. Nevertheless, it reiterates that incompatibility ratione materiae is a matter which goes to the Court ’ s jurisdiction rather than a question of admissibility in the narrow sense of that term. Since the scope of the Court ’ s jurisdiction is determined by the Convention itself, in particular by Article 32, and not by the parties ’ submissions in a particular case, the mere absence of a plea of incompatibility cannot extend that jurisdiction (see, mutatis mutandis, Blečić v. Croatia [GC], no. 59532/00, § 67, ECHR 2006 ‑ III; Tănase v. Moldova [GC], no. 7/08, § 131, ECHR 2010; and Béláné Nagy v. Hungary [GC], no. 53080/13, § 71, ECHR 2016 ). Accordingly, it will examine the matter of its own motion.
23. The Court observes that in the present case, the domestic proceedings concerned the applicant company ’ s objection to the fine imposed on it by the Tarsus Provincial Administration, for carrying out mining activities outside of its permitted area.
24. In the case of Jussila v. Finland ([GC], no. 73053/01, ECHR 2006 ‑ XIV), the Court found that Article 6 under its criminal head applied to proceedings on the imposition of surcharges for taxes. In doing so, it examined whether the surcharge proceedings were “criminal” within the autonomous meaning of the Article, and to this end relied on three criteria, commonly known as the “ Engel criteria” (see Engel and Others v. the Netherlands, 8 June 1976, § 82, Series A no. 22), to be considered in determining whether or not there was a “criminal charge”. 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 degree of severity of the penalty that the person concerned risks incurring. The second and third criteria are alternative and not necessarily cumulative. This, however, does not exclude a cumulative approach where separate analysis of each criterion does not make it possible to reach a clear conclusion as to the existence of a criminal charge (see Sergey Zolotukhin v. Russia [GC], no. 14939/03, § 53, ECHR 2009; and Steininger v. Austria, no. 21539/07, § 34, 17 April 2012).
25. As regards the first criterion, it is clear that the impugned fine was ordered pursuant to the Regulation Concerning Group A Mines and was administrative under national law. However, this is not decisive. As for the second criterion, the Court notes that the measure imposed on the applicant resulted from Article 19 of the above-mentioned Regulation, which applies a general obligation to a specific circumstance, that is, the imposition of fines on those carrying out mining activities outside of their licenced areas (see Steininger, cited above, § 36). Moreover, with regard to the third criterion, it observes that the fine at issue concerned a substantial amount and was both deterrent and punitive, as it did not merely aim at the compensation of the damage caused by the applicant (see Hüseyin Turan v. Turkey, no. 11529/02, § 19, 4 March 2008). In the light of the foregoing, the Court finds that Article 6 applies under its criminal head.
26. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
27. An oral, and public, hearing constitutes a fundamental principle enshrined in Article 6 § 1. 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, hear the evidence against him, and examine and cross-examine the witnesses (see Jussila, cited above, § 40).
28. That said, the obligation to hold a hearing is not absolute. In Jussila (cited above), the Court found that in the light of the broadening of the notion of a “criminal charge” to cases not belonging to the traditional categories of criminal law (such as administrative penalties, customs law and tax surcharges), there were clearly “criminal charges” of differing weights. While the requirements of a fair hearing are strictest concerning the hard core of criminal law, the guarantees of the limb of Article 6 applying to criminal law do not necessarily apply with their full stringency to other categories of cases falling under that head and which do not carry any significant degree of stigma. The Court therefore accepted that an oral hearing may not be required in all cases in the criminal sphere (see Jussila, cited above, § 43).
29. Drawing a parallel with its approach in civil cases, the Court considered that the character of the circumstances which may justify dispensing with an oral hearing essentially comes down to the nature of the issues to be dealt with by the competent court – in particular, whether these 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 (see Jussila, cited above, §§ 41 - 42 and 47-48 ). In this connection, it is legitimate for the national authorities to have regard to the demands of efficiency and economy ( Jussila, cited above, § 42).
30. Furthermore, when accepting that a hearing has not been necessary in the circumstances of a particular case, the Court has also had regard to the minor sum at stake or the minor character of the offence ( Jussila, cited above, § 48; and Suhadolc v. Slovenia ( dec. ), no. 57655/08, 17 May 2011 ).
31. Turning to the facts of the present case, the Court observes that the domestic proceedings at issue concerned the applicant ’ s objection to an administrative fine, imposed on it pursuant to the Regulation Concerning Group A Mines, which, as such, does not belong to the traditional categories of criminal law (see Suhadolc, cited above ).
32. The Court further observes that objections to such fines are assessed by the criminal magistrates ’ courts, in line with the Misdemeanours Act. Section 28 § 4 of that Act leaves the decision as to hold an oral hearing to the discretion of the courts, which the Court does not find to be per se incompatible with the guarantees enshrined in Article 6. In this connection, the Court observes that the restrictions on court hearings being held in this type of case were aimed at expediting the processing of minor offences and at lowering the workload of the judiciary. It finds these considerations legitimate and notes that the expeditious handling of the courts ’ caseload may also be essential in ensuring the right to trial within a reasonable time (see, mutatis mutandis, Hermi v. Italy [GC], no. 18114/02, § 80, ECHR 2006 ‑ XII ).
33. The Court will proceed to examine whether in the circumstances of this case, having regard to the manner in which the applicant ’ s interests were actually presented and protected in the proceedings and particularly in the light of the nature of the issues to be decided by the local court, the lack of a hearing was justified and the requirements of fairness were complied with (see Pönkä v. Estonia, no. 64160/11, § 34, 8 November 2016).
34. The Court observes that the applicant requested the Mersin Magistrates ’ Court to hold an oral hearing, to carry out an on-site examination, and to hear its witnesses, in order for the latter to assess whether the inspection report relied on by the Tarsus Provincial Administration in imposing the fine was reliable and accurate. In that respect, the applicant pointed out that certain officials involved in the drawing up of the inspection report and the imposition of the fine were accused of extortion and that the criminal proceedings against them were pending before the Mersin Assize Court.
35. The Court further observes that the Magistrates ’ Court rejected the applicant ’ s requests for a hearing, without specifying any reasons for doing so. Moreover, although it was called upon to examine the case as regards both the facts and the law, it went on to reject the applicant ’ s objection on the basis of the inspection report dated 31 January 2006, without having assessed its credibility, the lack of which was the main argument raised by the applicant in objecting the fine. In that connection, the Court notes that during the course of the proceedings, the domestic court did not request further submissions from either of the parties or from an expert (see, a contrario, Jussila, cited above). Nor did it take account of the criminal proceedings brought against two public officials accused of extortion for their acts leading up to the imposition of the fine at issue.
36. With regard to the Government ’ s claim that the assessment of the credibility of the impugned report did not call for an oral assessment of facts or evidence as it was established by an inspection report and sketch maps, the Court is not convinced that the inspection report relied on in the present case can be compared to evidence obtained using objective methods such as technical devices (see Suhadolc, cited above, in which the evidence against the accused was obtained using a speed measuring laser device and an alcohol test ). Moreover, the Court does not consider it relevant that the president of the applicant company admitted to have surpassed his permitted area with 400 meters (see paragraph 10 above), as his statements did not in any manner support the inspection report he challenged before the domestic court, which indicated that he exceeded the permitted area with 5,000 m² (see paragraph 7 above).
37. While it is true that the subject matter of the case concerned an issue of a technical nature to a certain extent, the Court finds that the question of the credibility of the inspection report was a crucial element which needed to be addressed by the domestic court in evaluating the applicant ’ s objection to the fine which had been imposed. Consequently, it holds that, in the circumstances of the present case, that question could not, as a matter of fair trial, have been properly determined without a direct assessment of evidence given in person by the applicant and by witnesses (see Hüseyin Turan, cited above, § 35; and Hannu Lehtinen v. Finland, no. 32993/02, § 48, 22 July 2008).
38. There has accordingly been a violation of Article 6 § 1 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION
39. Relying on Article 1 of Protocol No. 1 to the Convention, the applicant complained that he had been deprived of his property in that the administrative fine had been imposed on him as a result of the unfair domestic proceedings.