SECOND SECTION
DECISION
Application no. 42978/06
Tayfun GÖRGÜN
against Turkey
The European Court of Human Rights (Second Section), sitting on 16 September 2014 as a Committee composed of:
Helen Keller, President,
Egidijus Kūris,
Jon Fridrik Kjølbro, judges,
and Abel Campos, Deputy Section Registrar,
Having regard to the above application lodged on 9 October 2006,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Tayfun Görgün, is a Turkish national, who was born in 1955 and lives in Ankara. He was represented before the Court by Ms D. Hatipoğlu Aydın, a lawyer practising in Ankara.
The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
At the time of the events giving rise to this application, the applicant was the head of the Ankara office of the trade union DİSK (Devrimci İşçi Sendikaları Konfederasyonu – Confederation of Revolutionary Workers’ Trade Unions) and the Deputy President of a mining union.
On 15 December 2005 a demonstration was organised in Ankara by a number of NGOs and trade unions, including the DİSK, to protest against the proposed social security reforms in Turkey. It appears that posters prepared to advertise this demonstration, which indicated the DİSK as one of the organisers, had been posted around Ankara, including on an electricity transformer and an advertisement board in Dikimevi.
On 20 December 2005 the applicant was informed by officers of the Municipality of Ankara that legal measures would be taken against the DİSK for posting material on non‑designated areas without the permission of the Municipality, contravening Section 29 of the relevant municipal regulation (“Ankara Belediyesi Zabıta ve Küşat Yönetmeliği”).
On 26 January 2006 the applicant, in his capacity as the representative of DİSK, was subjected to an administrative fine of 124 Turkish liras (TRY) (76 euros (EUR)) by a decision of the Municipality of Ankara under Section 1 of Law no. 1608 concerning the various penalties that may be awarded by municipalities (“Umuru Belediyeye Müteallik Ahkamı Cezaiye Hakkında Kanun”).
The applicant objected to that decision, arguing that he had no involvement in the hanging of the posters in question.
On 10 April 2006 the Ankara Magistrates’ Court rejected the applicant’s objection by a final decision, without holding a hearing.
COMPLAINTS
The applicant complained under Article 6 of the Convention that he had been denied a fair trial, mainly because (i) he had been held responsible for an offence that he had not personally committed, (ii) the Magistrates’ Court had not held a hearing and heard witnesses, (iii) the Magistrates’ Court’s decision had not been reasoned and (iv) there had been no possibility to appeal that decision. He also complained that the penalty imposed for advertising a lawful demonstration had violated both his and his trade union’s right to freedom of expression under Article 10 of the Convention.
THE LAW
A. Article 10 of the Convention
The applicant complained that both he and the trade union he was representing had been penalized for advertising a lawful demonstration, which contravened the freedom of expression protected under Article 10 of the Convention.
The Court considers at the outset that the trade union in question is not an applicant in the present case, the application having been lodged by the applicant in his own name alone. It follows that this part of the application, insofar as it concerns the rights of the trade union, is incompatible ratione personae with the provisions of the Convention and must be rejected pursuant to Article 35 §§ 3 and 4.
As for the remainder of the applicant’s complaints under Article 10 of the Convention, the Court recalls that it normally requires that the complaints intended to be made subsequently at the international level should have been aired before the domestic courts, at least in substance (see, for instance, Fressoz and Roire v. France [GC], no. 29183/95, § 37, ECHR 1999-I, and Önen v. Turkey (dec.), no. 32860/96, 10 February 2004). The Court, however, notes that the applicant has not raised his Article 10 complaints before the Magistrates’ Court or any other authority, not even implicitly or in substance; the applicant’s arguments before the domestic court rather focused solely on his lack of personal involvement in the hanging of the relevant posters.
In these circumstances, the Court concludes that this part of the application must be rejected for non‑exhaustion of domestic remedies within the meaning of Article 35 §§ 1 and 4 of the Convention.
B. Article 6 of the Convention
The applicant argued that he had been fined for an offence that he had not committed and that the proceedings before the Ankara Magistrates’ Court, where he sought to challenge that fine, had failed to comply with a number of procedural requirements set out under Article 6 of the Convention.
The Court considers it appropriate in the circumstances of the present case to examine first whether the present complaint should be rejected under Article 35 § 3 (b) of the Convention that reads as follows:
“3. The Court shall declare inadmissible any individual application submitted under Article 34 if it considers that:
...
(b) the applicant has not suffered a significant disadvantage, unless respect for human rights as defined in the Convention and the Protocols thereto requires an examination of the application on the merits and provided that no case may be rejected on this ground which has not been duly considered by a domestic tribunal.”
The Court will therefore examine whether: (i) the applicant has suffered a significant disadvantage; (ii) whether respect for human rights as defined in the Convention and the Protocols attached thereto requires an examination of the complaint on the merits; and (iii) whether the case was duly considered by a domestic tribunal (see Korolev v. Russia (dec.), no. 25551/05, ECHR 2010, and Ladygin v. Russia (dec.), no. 35365/05, 30 August 2011).
1. Whether the applicant has suffered a significant disadvantage
The Court has previously held that this criterion applies where, notwithstanding a potential violation of a right from a purely legal point of view, the level of severity attained does not warrant consideration by an international court (see Ionescu v. Romania (dec), no. 36659/04, 1 June 2010, and Korolev, cited above). The absence of any significant disadvantage can be based on criteria such as the financial impact of the matter in dispute or the importance of the case for the applicant (see Ionescu, cited above).
The Court observes accordingly that the applicant was subjected to an administrative fine of approximately EUR 76, not in his own capacity but as the representative of a trade union. The Court notes at the outset the modest amount of the fine in question. It is true that a pecuniary loss cannot be measured in abstract terms: even modest pecuniary fine may be significant in the light of the person’s specific circumstances and of the economic situation of the country or region in which he or she lives (see, mutatis mutandis, Georgiev v. Bulgaria (dec.), no. 15644/06, § 39, 5 November 2013). In the instant case, the Court has no information as to whether the applicant had to pay the fine personally or whether it was paid by the trade union; however, even in the former case, there is no evidence to suggest that the penalty in question had any undue financial impact on the applicant, considering his employment status at the relevant time as a trade union director (see, mutatis mutandis, Burov v. Moldova (dec.), no. 38875/03, § 27, 14 June 2011).
The Court is mindful at the same time that the pecuniary sum involved is not the only element that determines whether the applicant has suffered a significant disadvantage. Indeed, a violation of the Convention may concern important questions of principle and thus cause a significant disadvantage without affecting a pecuniary interest. However, the Court does not consider that any such issues have been raised by the applicant in the instant case (see Burov, cited above, §§ 30-31). The Court stresses in this connection that the administrative fine in question was not registered in the applicant’s criminal record.
In view of the foregoing, the Court concludes that the applicant has not suffered a significant disadvantage as a result of the alleged violation of the Convention.
2. Whether respect for human rights as defined in the Convention and the Protocols thereto requires an examination of the application on the merits
The second element set out in Article 35 § 3 (b) compels the Court to examine the case in any event, if respect for human rights so requires. This would apply where a case raises questions of a general character affecting the observance of the Convention, for instance where there is a need to clarify the respondent State’s obligation under the Convention or to induce the respondent State to resolve a structural deficiency (see Zwinkels v. the Netherlands (dec.), no. 16593/10, § 28, 9 October 2012).
The Court does not consider that the issues raised in the present case are such as might amplify or contribute to the Court’s case-law (see, mutatis mutandis, Heather Moor & Edgecomb Ltd. v. the United Kingdom (dec.), no. 30802/11, § 26, 26 June 2012). Respect for human rights does not therefore require an examination of this application on its merits.
3. Whether the case was duly considered by a domestic tribunal
The Court reiterates that the purpose of this safeguard clause is to ensure that every case receives a judicial examination, whether at national or European level, in order to avoid a denial of justice (see Korolev, cited above).
Turning to the present case, the Court notes that the applicant objected to the administrative fine imposed by the Municipality, the objection being eventually rejected by the Ankara Magistrates’ Court. It is not the Court’s function to deal with errors of fact or law allegedly committed by national courts. Moreover, this safeguard clause is not concerned with the outcome of the proceedings but requires only that the case be duly considered (see Uhl v. the Czech Republic (dec.), no. 1848/12, § 31, 25 September 2012). In this sense the Court notes that the applicant had the opportunity to submit his arguments to a court of law, with the assistance of a lawyer, where they were duly considered. The Court therefore considers that this condition has also been met.
4. Conclusion
The three conditions for the application of the new admissibility criterion having been satisfied, the Court declares this complaint inadmissible pursuant to Article 35 §§ 3 (b) and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Abel CamposHelen Keller
Deputy RegistrarPresident
Full & Egal Universal Law Academy