Dilipak and Karakaya v. Turkey

Information Note on the Court’s case-law No. 172

March 2014

Dilipak and Karakaya v. Turkey - 7942/05 and 24838/05

Judgment 4.3.2014 [Section II]

Article 6

Civil proceedings

Article 6-1

Fair hearing

Adversarial trial

Failure to take sufficient steps to identify address for service in civil proceedings: violation

Facts – Civil proceedings were brought against the applicants following the publication of two articles in their newspaper. Neither the writ of summons nor the statement of claim could be served at the address supplied by the claimant as the applicants were unknown there. Fresh writs were sent to the addresses established by the police. The documents were served on the “authorised employee” for one of the applicants. The other applicant could not be traced. The court then decided to have the notification published in the press. The applicants were convicted in absentia. When the judgment had become final, the claimant brought enforcement proceedings. Orders to pay were sent to the applicants’ homes. The applicants, who were thus apprised simultaneously of both the proceedings and the findings against them, produced evidence that the authorities had known their addresses. Three appeals were lodged with a view to obtaining a fresh trial. None of these appeals had been successful at the time of delivery of the present judgment.

Law – Article 6 § 1: When considering judicial proceedings from the angle of the civil aspect of Article 6, regard must be had to the Court’s approach to criminal matters. Consequently, the first question to be examined was whether the authorities had taken the requisite steps to inform the applicant of the existence of the trial and whether the latter had waived his or her right. If not, it must be ascertained whether the applicant could have obtained a fresh adversarial trial under domestic law.

The domestic court had first of all attempted to serve the statement of claim and the writ of summons at the address supplied by the claimant. Subsequently, since the applicants were not to be found at that address, it had decided to order a police search. The court did not appear to have considered the action carried out by the police or the advisability of further action before resorting to service via publication in the press, in the case of the first applicant, even though the latter procedure often had very unfortunate consequences for the addressee. No enquiries seemed to have been made in respect of either of the applicants with the civil registry, professional bodies or the authority responsible for issuing press cards, although their journalist status could hardly have been unknown. In short, there was nothing to show that the enquiries which might legitimately and reasonably have been expected from the authorities had actually been carried out; indeed, all the evidence was to the contrary. It was quite troubling that, when it came to enforcing the judgment, the real addresses of the two journalists had then been traced without difficulty. The applicants had therefore been deprived of the opportunity to participate in the civil proceedings against them or to defend their interests. Moreover, there was nothing to suggest that they had waived their right to a fair trial.

It therefore remained to be seen whether domestic law afforded the applicants, with a sufficient degree of certainty, the opportunity to appear at a new trial. In the present case three appeals had been lodged to that end. The first appeal had been dismissed by the domestic courts on the grounds that the service via publication in the press had been valid. Secondly, an appeal on points of law had been ordered by the Ministry of Justice, even though setting aside a judgment on points of law would have no effect on the litigants’ situation. In any event the Court noted that the appeal had been dismissed by the Court of Cassation. Thirdly, the first applicant had applied to reopen the proceedings. However, the conditions for making use of such a remedy did not include the circumstance that one of the parties was unable to take part in the original proceedings owing to lack of notification or to any other factor invalidating the notification. Moreover, the applicant had based his application not on that circumstance but on the discovery of new information concerning the merits of the case. Consequently, the application to reopen the proceedings did not guarantee with sufficient certainty that the applicants would have the opportunity to appear at a new trial to present their defence. In conclusion, the requisite steps had not been taken to inform the applicants of the proceedings against them and the latter had not had the opportunity to appear at a new trial, despite the fact they had not waived their corresponding right.

Conclusion: violation (unanimously).

The Court also unanimously held that there had been a violation of Article 10.

Article 41: question reserved regarding the first applicant’s claim; no claim made by the second applicant.

(See also Colozza v. Italy, 9024/80, 12 February 1985; Medenica v. Switzerland, 20491/92, 14 June 2001, Information Note 31; and Sejdovic v. Italy [GC], 56581/00, 1 March 2006, Information Note 84)

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This summary by the Registry does not bind the Court.

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