Case of European Court of Human Rights, December 10, 2019 (case BACAKSIZ v. TURKEY)

Defense:TURKEY
Resolution Date:December 10, 2019
SUMMARY

Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing;Adversarial trial)

 
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SECOND SECTION

CASE OF BACAKSIZ v. TURKEY

(Application no. 24245/09)

JUDGMENT

Art 6 § 1 (civil) • Fair hearing • Adversarial proceedings • Trial court’s judgement based on expert report without proper summoning of applicant • Cassation Court’s limited scope of jurisdiction • Failure to remit the case for fresh trial

STRASBOURG

10 December 2019

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Bacaksız v. Turkey,

The European Court of Human Rights (Second Section), sitting as a Chamber composed of:

Robert Spano, President,Marko Bošnjak,Valeriu Griţco,Egidijus Kūris,Arnfinn Bårdsen,Darian Pavli,Saadet Yüksel, judges,and Stanley Naismith, Section Registrar,

Having deliberated in private on 19 November 2019,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

  1. The case originated in an application (no. 24245/09) 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 Süleyman Bacaksız (“the applicant”), on 3 April 2009.

  2. The applicant was represented by Ms A. Nalbant, a lawyer practising in Denizli. The Turkish Government (“the Government”) were represented by their Agent.

  3. The applicant alleged, in particular, that he had not been able to participate in the proceedings against him, in breach of Article 6 § 1.

  4. On 12 December 2016 notice of the complaint concerning the applicant’s inability to participate in proceedings against him was given to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

    THE FACTS

  5. The applicant was born in 1960 and lives in Denizli.

  6. The facts of the case, as submitted by the parties, and as they appear from the documents submitted by them, may be summarised as follows.

  7. On 3 March 2000 the applicant who was driving his car was involved in a traffic accident on the highway involving two other cars and three passengers.

  8. A traffic accident report was drawn up by the police officers who were called to the scene. In their report they indicated that the applicant had been travelling in the direction of İzmir while the other drivers had been travelling in the opposite direction. It was also noted that the applicant had been at fault for causing the accident by crossing to the opposite lane and crashing into Ş.Y.’s car. According to the same report, the other driver, M.B., was at secondary fault because he was following Ş.Y.’s car too closely, while Ş.Y., the third driver, was not at fault. All the drivers as well as the two passengers travelling in the applicant’s car and the other passenger travelling in M.B.’s car were indicated as injured.

  9. This report was signed only by the police officers. The addresses of the drivers were indicated in the relevant section of the report. Accordingly, the applicant’s address was indicated as Değirmenönü Mah. 1336 Sok. No: 10‑2, Denizli. In their observations, the Government submitted that this was the address that had been recorded at the traffic registration bureau when the applicant had bought and registered his car.

  10. On 25 October 2000, criminal proceedings were lodged against the applicant and the other drivers on charges of causing injury by imprudence and negligence. The applicant’s address was indicated in the preparatory hearing as Mehmetçik Mah. 2569 Sok. No: 6-2, Denizli where a summons was successfully served.

  11. The applicant, who was represented by a lawyer, attended the proceedings in person.

  12. During the proceedings the Selçuk Criminal Court of First Instance in İzmir (“the Criminal Court”) conducted an on-site inspection of the road where the accident took place. The applicant, who was present during this exercise, submitted that contrary to the traffic accident report written by the police officers who had been called to the scene, he had been travelling from İzmir and not going in the direction of İzmir. The Criminal Court decided to appoint an expert to determine how the accident had happened and who could be at fault.

  13. In his report submitted to the court on 2 November 2001 the expert appointed by the court reconstructed the accident in the following way: the applicant had been travelling to İzmir and had skidded onto the lane with oncoming traffic due to rain and slippery road conditions and had hit Ş.Y.’s car which was travelling from İzmir, on the left rear side. He had then collided with M.B., who was following Ş.Y. too closely. The expert then concluded that the applicant was 5/8 at fault for causing the accident by passing onto the lane with oncoming traffic, and that M.B. was 3/8 at fault for following Ş.Y. too closely.

  14. Following the applicant’s objections to that report, the court decided to obtain a second opinion from the department of traffic experts at the Forensic Medicine Institute.

  15. On 29 January 2002 a panel of four experts submitted their report to the court. The panel noted that in their statements all three drivers had submitted that they had been travelling in the opposite direction of İzmir, whereas in a separate statement, Ş.Y. had stated that the applicant had actually been travelling to İzmir and had crossed over to the lane in which he was driving. The panel noted that M.B. had mentioned that he did not recall the events clearly as a result of the trauma he had suffered in the accident. The panel also took note of the previous expert report in which the accident had been reconstructed. The panel could not conclusively determine which driver had caused the chain accident but noted that whoever had violated the rules on overtaking had been 8/8 at fault for causing the accident. The fact that the place of impact had been on the left shoulder of the highway in the direction of İzmir was an indication of who could be at blame for incorrect overtaking. Accordingly, the panel suggested that whoever was driving to İzmir was the driver at fault.

  16. In order to determine the driver who had violated the rules of overtaking and who was going in which direction at the time of the accident, the Criminal Court requested from the insurance company of Ş.Y. a photograph of Ş.Y.’s damaged car and the repair bills.

  17. On 5 June 2002 the insurance company replied to the court’s request that the photographs in question had been submitted to the Torbalı Civil Court in İzmir (“the Civil Court”) and could be sought from that court. The insurance company identified those proceedings by the docket number.

  18. The Criminal Court decided to consult the case-file of the court in the civil proceedings (see paragraphs 23-35 below). It therefore asked that court to forward the photographs taken after the accident showing the damage to Ş.Y.’s car, as well as the parts that had been changed.

  19. It appears from the minutes of the hearing of 3 July 2003 that the Criminal Court received the case-file in question from the Civil Court. The Criminal Court also indicated in those minutes of the hearing that the Civil Court had rendered a decision which had not yet become final. Finally, the Criminal Court noted that there were no photographs in the case-file of the Civil Court. Subsequently photographs of the damaged cars were submitted to the Criminal Court on a CD-ROM.

  20. The Criminal Court decided to appoint a panel of experts of three traffic engineers. In its report of 15 March 2004, the panel submitted that the photographs of the cars taken after the accident showing the impact of the accident did not correspond to the version of events described in the traffic accident report drawn up by the police officers. Accordingly, the panel held that the way the damage had occurred on the cars implied that the applicant and Ş.Y. had been travelling from İzmir and that it was in fact M.B. who was going in the direction of İzmir. They explained that M.B. must have crossed over to the opposite lane and hit Ş.Y.’s rear left side with his car’s front left side. The impact of the accident had made M.B. lose control of his car, which had ended up in a vertical position on the road and had then been hit by the applicant’s on its right side. The panel accordingly concluded that the entire fault rested with M.B. and that the other drivers could...

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