Press Release No: Individual Application 24/17
03.08.2017

PRESS RELEASE CONCERNING THE JUDGMENT FINDING A VIOLATION OF THE RIGHT TO A REASONED DECISION AS THE ALLEGATIONS ASSERTED DURING THE CRIMINAL PROCEEDINGS WERE REJECTED WITHOUT SUFFICIENT GROUNDS

On 25 May 2017, the Plenary of Constitutional Court found a violation of the right to a reasoned decision, which is one of the elements of the right to a fair trial safeguarded by Article 36 of the Constitution, in the individual application lodged by Ali Önal (no. 2015/11798).

The Facts

The applicant is a self-employed lawyer in Antalya. A.D. was working in the applicant’s office at the time of the incident. On 5 March 2010, A.D., who was also co-accused with the applicant, referred a promissory note (bond) to the Serik 1st Debt Enforcement Office against the debtor, in his capacity of the representative of his father M.D. The beneficiary of the bond amounting to 150,000 Euro (EUR) was himself, the endorser was M.D. and the debtor was M.G. (the intervening party). In response to the execution proceedings, M.G. brought a negative declaratory action, and an interim decision was taken pending the action. M.G. submitted a complaint petition of 19 March 2010 to the Antalya Chief Public Prosecutor’s Office and filed a criminal complaint against the applicant, and A.D. and M.D. whose names were noted in the bond. In his complaint petition, M.G. maintained in brief: He and B.A., a real estate agent, visited a lawyer (the applicant) in order to receive legal assistance against his son-in-law F.A. and those accompanying F.A. who had defrauded him while purchasing an immovable in return for EUR 1,450,000. He agreed with the lawyer in return for EUR 150,000. The applicant then had M.G. sign the contract consisting of the counsel’s fee of EUR 150,000, M.G.’s name and printed notes (Counsel’s Fee Contract-Certificate of Authority). Although he demanded one copy of this contract, the applicant did not deliver it. He had not signed any other promissory note. After he had signed the contract, he paid 30,000 Turkish Liras (TRY) to the applicant. He further remitted an amount of TRY 130,000 to different persons upon the applicant’s request. However, the applicant did not answer his phone. Thereupon, he dismissed the applicant on 22 February 2010 as the applicant failed to pursue the necessary actions and continuously demanded money. After the applicant was discharged, his signature in the contract amounting to EUR 150,000 was then used in a bond (the contract was turned into a bond); that he had no legal relationship with the person commencing the execution proceedings and the creditor in the bond; and that he saw the creditor A.D. in the applicant’s office and A.D. was introduced him as the guard of the lawyer.

The applicant noted the followings: He and M.F. had engaged in contract of power of attorney in the amount of EUR 150,000. But M.G. had paid only an amount of TRY 30,000. They had not made any other contract for power of attorney. As M.G. failed to make payments for the actions pursued by him on behalf of M.G. and he was dismissed by M.G., he commenced execution proceedings against M.G. before the Serik 1st Debt Enforcement Office in order to collect the counsel’s fee. The charges against him were not accurate.

The Serik Chief Public Prosecutor’s Office conducting the investigation took the statements of the suspects, the complainant and the witnesses and examined the file of the enforcement proceedings, the impugned bond, the file of the negative declaratory action before the civil court and the report issued, with respect to the impugned bond, by the Physics Specialization Board of the Forensic Medicine Institute. The Prosecutor’s Office requested initiation of a final investigation against the applicant. By its decision dated 27 December 2011, the 1st Chamber of the Alanya Assize Court ordered a final investigation into the forgery of official documents, aggravated fraud and professional misconduct before the 1st Chamber of the Manavgat Assize Court. The co-accused persons A.D. and M.D. gave statements confirming the applicant’s defence arguments. By its decision of 24 April 2013, the competent court convicted the accused persons of forgery of official documents and aggravated fraud.

The applicant appealed the decision. Although the Chief Public Prosecutor’s Office of the Court of Cassation was of the opinion that the decision be quashed, the 15th Criminal Chamber of the Court of Cassation upheld the decision, by its judgment of 27 May 2015, relying on the grounds compatible with those of the first instance court. Upon the applicant’s request of 4 December 2004, the Chief Public Prosecutor’s Office of the Court of Cassation challenged the chamber’s judgment. The relevant chamber then decided, by its judgment of 1 July 2015, that the review of the challenge be conducted by the General Assembly of Criminal Chamber of the Court of Cassation (“General Assembly”). By its judgment of 4 October 2016, the General Assembly concurred with the chamber’s judgment and rejected the challenge by majority of votes.

Since the date of application, the applicant has been excluded from profession as per the decision of the Antalya Bar Association dated 30 April 2013.

The Applicant’s Allegations

The applicant maintained; that the evidence collected throughout the proceedings and the challenges against the evidence and the counter-evidence were not discussed to the extent and of the nature which would be in pursuit of justice; that sufficient and reasonable ground was not established; that only the intervening party’s allegations were taken into consideration; and that there were no reasonable grounds explaining the reason as to why the defence evidence was not relied on. The applicant alleged that his rights to a reasoned decision and a fair trial were violated and accordingly requested re-trial.

The Constitutional Court’s Assessment

In brief, the Constitutional Court made the following assessments:

In its examination as to the merits, the relevant court discussed the reason for drawing up the bond in question. It was then acknowledged that the bond was drawn up beyond the drawer’s own will for the following two reasons: Firstly, A.D.’s and M.D.’s economic and social conditions were not sufficient for purchasing an immovable in value of EUR 300,000. Secondly, the failure to make a “purchase and sale contract” –even if not valid– in a sale transaction with an advance payment of EUR 150,000 in which title deed was not transferred is not compatible with the ordinary course of life. Therefore, it was concluded that there was no contract signed between A.D. and M.G. with respect to the sale and purchase of an immovable. On the other hand, the relevant court acknowledged that although it accepted the findings in the forensic report in which the copied document alleged to be faxed to M.G. by the applicant’s officer was compared with the impugned bond, such an acknowledgement did not have any bearings on the conclusion reached on the basis of the previous assessments that the offence was proven to be committed.

The Constitutional Court has observed that as to the various allegations and defence arguments such as the facts that the signature on the impugned bond was of M.G. and that the reason of signing was allegedly an power of attorney contract or immovable sale contract, the issues included in the letters of notification and objection issued by the Chief Public Prosecutor’s Office of the Court of Cassation and in the dissenting opinions annexed to the judgments of the General Assembly were not expressly discussed in the reasoned decision, which was a substantial element for the impugned proceedings. 

Regard being had to the acts imputed to the applicant, the issues that the applicant insistently requested for examination and the issues included in the conviction decision of the first instance court, the Constitutional Court has observed that in its decision, the relevant court failed to provide the grounds for the rejection of the applicant’s requests about the witnesses’ statements concerning the sale of immovable and for abuse of the signature in blank. For this reason, the Constitutional Court found a violation of the applicant’s right to a reasoned decision, which is one of the elements of the right to a fair trial safeguarded by Article 36 of the Constitution.

This press release prepared by the General Secretariat intends to inform the public and has no binding effect.

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