Non-attendance of the party due to no service of summons violated the right to be heard


Bacaksız v. Turkey  10.12.2019 (no. 24245/09)

see here 


First-instance judgment in absence of the party. Non-service of a party to the Court of Appeal. Right to be heard.

The applicant was involved in a car accident which caused injuries to the drivers involved. In the criminal court he was acquitted, but in the lawsuit brought against him by the insurance company for payment of the amount of compensation which the company itself was obliged to pay to the sufferers. He did not appear because of a lack of legal summon. The Court of Appeal dismissed his appeal without examining its basic plea of ​​inadmissibility at trial and remained solely on the non-binding nature of the criminal judgment.

The Court reiterates that the Convention requires the Contracting States to take the measures necessary to ensure the effective enjoyment of the rights guaranteed by Article 6 of the Convention. The Court recalls that the basic condition for waiving the right is that the person concerned knows the existence of that right.

In the present case, the Court of Appeal did not examine the applicant’s allegation of lack of legal summons, nor did it re-examine the facts as it had no jurisdiction to do so, so the applicant was denied the right to be heard. Violation of Article 6 § 1 of the Convention.


Article 6§1


The applicant, Süleyman Bacaksız, is a Turkish national who was born in 1960 and lives in Denizli

The case concerned Mr Bacaksız’s complaint that he had not been able to participate in proceedings
against him following a car accident.

The car accident in question occurred in 2000, causing injury to three drivers and their passengers.
The police report drawn up on the scene noted that the applicant was at fault because he had
crossed into the opposite lane, crashing into an oncoming car.

In the criminal proceedings brought against him he was, however, acquitted in 2004 and one of the
other drivers was found to be at fault.

In the meantime, the courts had found for an insurance company in civil proceedings brought
against the applicant for reimbursement of the sums it had had to pay to one of the other drivers as
a result of the accident. The proceedings had been conducted in the applicant’s absence because the
Civil Court had not been able to locate him and serve the summons on him.

The applicant lodged an appeal with the Court of Cassation, requesting that the first-instance
decision be quashed because he had only learnt of the proceedings when one of his relatives living
at his previous address had found the summons posted on his door. He also argued that he had been
fully acquitted in the criminal proceedings concerning the accident.

The Court of Cassation dismissed the applicant’s appeal in 2008, holding that the decision had been
lawful and that, in any case, a civil court was not bound by the conclusions of a criminal court. It did
not respond to his argument about not being able to participate in the proceedings.

Relying in substance on Article 6 § 1 (right to a fair hearing) of the European Convention on Human
Rights, Mr Bacaksız complained that the civil proceedings against him had been unfair because he
had been unable to participate in them.


The Court reiterates that the Convention system requires the Contracting States to take the necessary steps to ensure the effective enjoyment of the rights guaranteed under Article 6 of the Convention.

If court documents, including summonses at hearings, are not served in person, then the party may be prevented from defending himself in the proceedings.

In respect of the first question, the Court must therefore examine whether the national authorities showed sufficient diligence in their efforts to locate the applicant and inform him of the civil proceedings. In that connection, when the trial court sought assistance from the relevant Security Directorate to determine the applicants current address after the first failed attempt to deliver the summons to the applicant, the Court observes that the Security Directorate replied to the trial court with two possible addresses where the applicant could be found: the address that was given to the Civil Court by the plaintiff where delivery had already been attempted but failed; and another address declared as his work address by the applicant when he had registered the car, where no delivery had so far been attempted by the trial court. While in those circumstances it would have been more appropriate and reasonable to try the work address of the applicant, the Civil Court chose to send the summons again to the applicants old home address even though it was obviously futile to do so. The trial courts final step, which was to post the summons at the entrance of the building of the applicants old address and deem it to be served, could hardly qualify as making reasonable efforts to appraise a defendant of the proceedings against him. In the light of the foregoing, the Court holds that the trial courts efforts to locate the applicant were not Convention-compliant. In that connection the submission that the national courts served the decision in accordance with the domestic legal provisions is not sufficient in itself to relieve the State of its obligations under Article 6 of the Convention.

Having regard to the foregoing, the Court is unable to subscribe to the Governments argument that the trial court showed the requisite due diligence in its efforts to locate the applicant 

As regards the Governments argument that the applicant could not have been unaware of the civil proceedings lodged against him since in the criminal proceedings that court had requested certain documents and evidence from the Civil Court, the Court notes that there are several references to the civil proceedings in the minutes of the hearings of the Criminal Court as well as in its decision. That being so, there are no references in those documents to the names of the parties in the civil proceedings, a consideration which is important since there were more than two drivers implicated in the traffic accident, several injured passengers and two insurance companies. While the Court agrees with the Government that the applicant could have suspected that the civil proceedings in question concerned him, his lack of diligence is not sufficient for the Court to hold that it amounted to an explicit and unequivocal waiver of the right to participate in the civil proceedings. The same holds true as regards the Governments argument that the applicants lack of diligence in updating his address with the traffic Registry should be taken as a waiver. The Court reiterates in that respect that the main precondition for waiving a right is that the person concerned is aware of the existence of the right in question, and therefore also aware of the related proceedings (see Dilipak and Karakaya, § 87; Aždajić, § 58; and Gyuleva, § 42, all cited above). It therefore rejects the Governments arguments on these points.

In that regard, the Court recalls that, at the material time, the jurisdiction of the Court of Appeal was extended to legal and factual matters. Although the powers of scrutiny over legal matters were unlimited, the same cannot be said for the scrutiny of the facts, since did not have full jurisdiction to establish the facts of the case, such as reviewing evidence or hearing witnesses, this task is reserved exclusively to the vile courts. In this regard, the applicant complained that he would not be able to object to the findings of the opinion submitted to the civil court, to attend civil proceedings and, above all, to present the criminal court’s res judicata to the civil court.

The Court of Cassation did not examine the applicants complaint about his involuntary non-participation in the proceedings, and limited its review to the general principle that a civil court was not bound by the conclusions of the criminal courts. The reasoning given by the Court of Cassation therefore implies that it reviewed the case solely on points of law even though the shortcoming complained of by the applicant entailed his non-participation in the proceedings and the lost opportunity to submit evidence and arguments to the trial court concerning the facts. As regards the applicants submission concerning the procedural defect in the proceedings, namely that he was not notified of the proceedings, the Court observes that the Court of Cassations decision contains no reasons for dismissing the claim. As regards the applicants submissions concerning the facts of his case, the Court of Cassation held that the Civil Court had assessed the case correctly on the basis of the expert report taken out in the proceedings; however, for the Court, this assessment on its own was not sufficient to redress the applicants non-participation in the proceedings since the Court of Cassations limited scope of review on facts prevented it from assessing in the trial courts place, the factual arguments submitted by the applicant. For the same reason, the Court considers that the fact that the Court of Cassation examined the Criminal Court case-file during its appeal review had no bearing since it could not allow it to change the verdict of the civil court on the basis of facts which had not been examined by that court. The Court notes that the Court of Cassation, by not setting aside the trial courts judgment in the circumstances of the present case, failed to remedy the applicants non-participation in the first-instance proceedings, as the applicant was not provided with a fresh adversarial hearing.

Violation of Article 6 § 1

Just satisfaction: Mr Bacaksız did not submit a claim for just satisfaction.


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