Zitieren als:
EGMR, Urteil vom 08.06.2006 - 54698/00 (Kaya) - M8754
Schlagwörter: ??? Abschiebung, Sperrwirkung, Wirkungen der Abschiebung, Bußgeldverfahren, Anhörung, Verhandlung, Anwesenheit, faires Verfahren, fair trial
Normen: EMRK Art. 6

25. The applicant complains under Article 6 of the Convention that the IAP convicted him in absentia.

Article 6, as far as relevant, provides as follows:

"In the determination of ... any criminal charge against him, everyone is entitled to a fair ...hearing ... by [a] ... tribunal..."

28. The Court recalls that, according to its established case-law, the right of an accused to participate in person in the proceedings is a fundamental element of a fair trial (see Colozza v. Italy, judgment of 12 February 1985, Series A no. 89, p. 14, § 27, F.C.B. v. Italy, judgment of 28 August 1991, Series A no. 208-B, p. 21, § 33, T. v. Italy, judgment of 12 October 1992, Series A no. 245-C, p. 41, § 26, Yavuz v. Austria, no. 46549/99, § 45, 27 May 2004, Novoselov v. Russia (dec.), no. 66460/01, 8 July 2004 and Stoichkov v. Bulgaria, no. 9808/02, § 55, 24 March 2005). An accused may waive the exercise of this right, but to do so his decision not to appear or not to defend himself must be established in an unequivocal manner and be attended by minimum safeguards commensurate to its importance (see, as a recent authority, Stoichkov v. Bulgaria, cited above).

29. The present case concerns administrative criminal proceedings in which the applicant was not heard by the Independent Administrative Panel, the only "tribunal" within the meaning of Article 6 § 1 having full jurisdiction over facts and law (see Baischer v. Austria, no. 32381/96, § 30, 20 December 2001). In any event, the applicant was not heard at any other stage of the proceedings. The Government's arguments that the nature of the proceedings before the Independent Administrative Panel was such as to dispense it from the necessity to hear the applicant in person accordingly falls (see mutatis mutandis Yavuz v. Austria, cited above, §§ 46 and 48).

30. As to the question whether the applicant had waived his right to be heard in person, the Court notes that the applicant, represented by his counsel, requested that an oral hearing be held by the Independent Administrative Panel in which he should be heard. The applicant was subsequently expelled to Turkey. The Independent Administrative Panel then scheduled a hearing to which the applicant was duly summoned via his counsel who had been required to inform the applicant. The Court reiterates that summons via counsel is not in itself in violation of Article 6 of the Convention. However, in circumstances where an accused has not been notified in person of a hearing, particular diligence is required in assessing whether he has waived his right to be present (see Yavuz v. Austria, cited above, § 49).

31. In the present case, counsel in disregard of his professional duties did not inform the applicant of the hearing. Counsel, however, told the Independent Administrative Panel that the applicant was not aware of the date of the hearing and reiterated the request that he be heard in person. In these circumstances, the Independent Administrative Panel could not consider that the applicant had unequivocally waived his right to be heard in person. Thus, the conduct of the proceedings in absentia was in violation of Article 6 §§ 1 and 3 (c) of the Convention.