Information Note on the Court’s case-law No. 124
November 2009
Davran v. Turkey - 18342/03
Judgment 3.11.2009 [Section II]
Article 6
Criminal proceedings
Article 6-1
Access to court
Access to Court of Cassation hindered by failure to serve judgment on a prisoner awaiting trial in separate proceedings: violation
Facts – In May 2001 an assize court sentenced the applicant, in his absence, to four years’ imprisonment and asked the police to establish his whereabouts. In September 2001 he was arrested and placed in pre-trial detention in the connection with another set of criminal proceedings, but the assize court was not informed. Having been unable to establish the applicant’s whereabouts, the assize court decided to serve its judgment through publication in the Official Gazette, under section 28 of the Service of Process Act. The judgment became final in January 2002, there having been no appeal on points of law. The assize court subsequently took note of the fact that the applicant was being held in detention. The applicant learned of his conviction in April 2002, when the execution order was served on him. He brought proceedings before the assize court, challenging the validity of the service and requesting that he be allowed to submit an appeal on points of law. His request was dismissed.
Law – Article 6 § 1: The Court of Cassation had declared the applicant’s appeal on points of law inadmissible on the ground that the statutory time-limits had expired. The time-limits had begun to run from the date of service of the first-instance judgment, and the applicant had challenged the method by which service had been effected. Although, by absconding for four months, he had contributed to the difficulties in complying with the Service of Process Act following the delivery of the judgment against which he intended to appeal, from the moment he was detained in September 2001 the domestic authorities ought to have been able to locate him. At that point the first-instance judgment had not yet become final. The Government had relied on section 28 of the Service of Process Act to justify service by way of publication. However, it was clear from section 19 of that Act that the responsibility for serving judgments on prisoners lay primarily with the authorities, who were required to effect service through the administration of the prison concerned. In the applicant's case, section 19 operated as the lex specialis to be applied to make the right of access to the cassation court and the exercise of the defence rights effective. It had therefore been open to the domestic authorities, from September 2001, to effect service in accordance with the provisions of that section. The Government’s objection that it had been impossible for the judicial authorities to be informed of the arrest was not justified, in so far as it was up to the respondent State to organise its judicial system in such a way as to render effective the rights set out in Article 6 of the Convention and to establish appropriate means to ensure the transmission of information between judicial bodies throughout the country. Thus, the applicant had suffered an excessive restriction of his right of access to court and therefore of his right to a fair trial.
Conclusion: violation (unanimously).
Article 41: EUR 1,000 in respect of non-pecuniary damage.
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This summary by the Registry does not bind the Court.
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