Considerations on the Case of Dridi v. Germany
Dridi / Almanya Kararı
Efser ERDEN TÜTÜNCÜ
In the case of Dridi v. Germany the ECtHR held, unanimously, that there had been a violation of Article 6 §§1 and 3 (c) (right to a fair trial/to defend oneself in person or through legal assistance) of the ECHR regarding the serving of a summons by public notification, and a violation of Article 6 §§1 and 3 (b) and (c) (right to a fair trial/time and facilities for defence/defence in person or through legal assistance) because Mr. Dridi’s lawyer was not given adequate opportunity to prepare his defense or attend the appeal hearing. Moreover, according to the German Criminal Procedure Code paragraph 359, if the ECtHR has found that there was a violation of the European Convention or of its’ Protocols, and if the judgment was based on that violation, proceedings can be reopened. There was no domestic case-law on whether this provision also applied to cases where the Government had acknowledged a violation in a unilateral declaration. For this reason, the Government’s request for the application to be struck out of the list of cases under Article 37 of the Convention had been rejected. However, according to the Turkish Criminal Procedure Code Article 311/1, f not only a finding of violation but also friendly settlements and striking out applications provide reopening the criminal procedure.
Fair Trial, Public Notification, Reopening the Criminal Procedure, Unilateral Declaration.
Dridi/Almanya kararında AİHM, duruşmaya ilanen tebligat yoluyla davet edilen ve müdafiine savunma hazırlaması için yeterli zaman tanınmayan başvuranın AİHS m.6/1 ve 3 (b), (c) ile korunan haklarının ihlal edildiği yönünde karar vermiştir. Alman Hükümeti tarafından tek yanlı hükümet beyanı ile ihlalin varlığının kabul edilmesine rağmen, Mahkeme, Hükümetin AİHS m.37 gereğince başvuruyu kayıttan düşürme kararı alması yönündeki talebini reddetmiştir. Zira Türk Hukukunun aksine, Alman Hukukunda Sözleşme ile korunan haklardan bir veya bir kaçının ihlal edildiğine ilişkin karar dışında tek yanlı hükümet beyanı yöntemi ile başvurunun kayıttan düşürülme hali bir yargılamanın yenilenmesi sebebi teşkil etmemektedir.
Adil Yargılanma Hakkı, İlanen Tebligat, Yargılamanın Yenilenmesi, Tek Taraflı Hükümet Beyanı.
I. Principal Facts
The applicant, A. Dridi, is a German national who was born in 1982 and lives in Cadiz (Spain). In March 2009 he was convicted of assault and fined 1,000 euros (EUR) by the Hamburg District Court. At the applicant’s request, the court authorised a law student, Mr Arif to act as defence counsel. Both sides appealed. Mr Dridi later moved to Spain, giving his new address to the court.
On 24 April 2009 the Hamburg Regional Court withdrew Mr Arif’s authorisation and rejected Mr Dridi’s application to be released from the obligation to appear in person. The decision was served on Mr Dridi in Spain. On the same day, the Regional Court fixed a date for the appeal hearing, but decided to serve the summons on Mr Dridi via public notification - pinning it to its notice board - because he had moved abroad.
One day before the hearing, on 12 May 2009, Mr Arif learned that the Court of Appeal had quashed the Regional Court’s withdrawal of his authorisation and that the appeal hearing had been scheduled for the following morning. He applied for an adjournment owing to a planned absence.
