The applicant had claimed compensation for unlawful detention and mistreatment during that detention; although the proceedings were civil in nature, they were governed by the code of criminal procedure. The applicant was not given an oral hearing before the first instance court which was responsible for establishing the facts and assessing the compensation; Turkey sought to rely on the fact that there could have been an oral hearing before the Court of Cassation and, as the applicant had not sought a hearing before that Court, he had waived his right.
Held: The Grand Chamber, divided, found that the denial of an oral hearing breached Article 6. An integral part of his case was that during the three days he was wrongfully held in police custody he was ill treated, endured personal suffering and harm and that; ‘He was never given the opportunity to explain orally to a court in the context of an adversarial procedure the injustice which had been done to him and his family. According to the applicant had he been given the opportunity to state his case to the domestic courts they would have been persuaded of the reality of the suffering which he and his family endured and of the harm caused to his reputation’. The court set out the criteria for allowing a case not to be heard in public: ‘That case law lays down three criteria for determining whether there are exceptional circumstances which justify dispensing with a public hearing; there must be no factual or legal issue which requires a hearing; the questions which the court is required to answer must be limited in scope and no public interest must be at stake.’ As to the waiver argument: ‘ . . Even assuming that Article 438 of the Code of Civil Procedure could have provided the basis for a request for a hearing before the Court of Cassation, the crucial question is whether the applicant should have been afforded a hearing before the Karsiyaka Assize Court, the tribunal which was responsible for establishing the fact of the case and assessing the amount of compensation to be awarded to the applicant. To the extent that the Government imply this, the applicant cannot be considered to have waived his right to an oral hearing by failing to request one before the Court of Cassation since that court did not have full jurisdiction to substitute its own view of the amount of compensation which should be awarded to the applicant for that of the first-instance court (see mutatis mutandis, Diennet v France, judgment of 26 September 1995, Series A nn.325-A, p.15, ss 34 [21 EHHR 554]) Having regard to the above considerations, the Court will examine whether there were any exceptional circumstances which justified dispensing with an oral hearing on the applicant’s compensation claim.’
Citations:
35-37, ECHR 2002-V, 36590/97
Statutes:
European Convention on Human Rights 6.1
Jurisdiction:
Human Rights
Cited by:
Cited – Regina (on the Application of Dudson) v Secretary of State for the Home Department and the Lord Chief Justice Admn 21-Nov-2003
The applicant had been sentenced to detention during Her Majesty’s Pleasure. He sought a judicial review of the Lord Chief Justice’s recommendation to the Home Secretary for the minimum term he was to serve.
Held: In exercising this function, . .
Cited – Hammond, Regina (on the Application of) v Secretary of State for the Home Department Admn 25-Nov-2004
The defendant had heard that the sentencing judge would set his sentence tarriff without an oral hearing, and would then give his decision in open court. He sought judicial review.
Held: Review was granted. The availability of a right of . .
Cited – Gillberg v Sweden ECHR 3-Apr-2012
(Grand Chamber) The applicant, a consultant psychiatrist, had conducted research with children under undertakings of absolute privacy. Several years later a researcher, for proper reasons, obtained court orders for the disclosure of the data under . .
Cited – Gillberg v Sweden ECHR 3-Apr-2012
(Grand Chamber) The applicant, a consultant psychiatrist, had conducted research with children under undertakings of absolute privacy. Several years later a researcher, for proper reasons, obtained court orders for the disclosure of the data under . .
Lists of cited by and citing cases may be incomplete.
Human Rights, Criminal Practice
Updated: 11 May 2022; Ref: scu.165970