Individual Application

The Facts

The applicant was indicted for contravening the Electronic Communications Act no. 5809 on the allegation that, at the workplace of which he was the owner and authorised representative, mobile phone line subscription contracts had been concluded in the name of the complainant without the latter’s knowledge and consent. Applying the simplified trial procedure, the trial court sentenced the applicant to a judicial fine of 740 Turkish liras (TRY). Following the applicant’s challenge, the court decided to conduct the proceedings against the applicant in accordance with the regular procedure.  In his defence submissions, the applicant denied the charges, stating that the authority to conclude subscription contracts rested with the sub-dealers, that he, as the main dealer, had not concluded any contracts but had only carried out line installation procedures, that he had been indeed acquitted of the same offence by another court, and that, according to the case-law of the regional court of appeal and the Court of Cassation, the constituent elements of the imputed offence had not been established. At the end of the proceedings, the applicant was sentenced, with no right of appeal, to a judicial fine of TRY 1,000.

The Applicant’s Allegations

The applicant maintained that his right to a reasoned decision had been violated, as the trial court failed to address substantial claims that might have affected the outcome of the proceedings.

The Court’s Assessment

In cases where a trial court reaches an outcome that differs from that of another court with respect to the same factual or legal setting, it is required to set out the relevant grounds for doing so in its reasoned decision.  The principle of the rule of law, enshrined in the Constitution as a fundamental principle to be observed in the interpretation of all fundamental rights and freedoms, entails the judicial authorities to avoid, as far as possible, rendering conflicting decisions on the same factual or legal issues. The failure to do so may not only undermine the principle of the rule of law, but also weaken individuals’ trust in the law. Accordingly, in cases where different judicial authorities arrive at divergent conclusions on the same factual or legal circumstances, the grounds for these discrepancies must be indicated. The obligation of judicial authorities to provide justifications in such cases is of vital importance for maintaining individuals’ trust in the law.

In the present case, the applicant was convicted for making a subscription without the consent of the subscriber, on the ground that his company had approved the line activation procedure, even though the company had not itself concluded any subscription contract. In establishing the imputed offence, the trial court did not require that the contract, concluded without the complainant’s knowledge or consent, be personally drafted and signed by the applicant. However, the trial court failed to take into consideration the applicant’s challenge, capable of affecting the outcome of the proceedings, that the sub-dealer was responsible for concluding the contract and that, as the main dealer, the applicant had no involvement in the conclusion of the subscription contract. Nor did it consider his references to the relevant case-law of the regional court of appeal and the Court of Cassation. Moreover, in light of the relevant case-law of the Court of Cassation cited above, the necessity for such an assessment becomes even more apparent.

In the applicant’s case, the court erroneously considered that the applicant’s approval of the contract, which had been concluded in breach of the law, in his capacity as authorised representative of the main dealer, was sufficient to justify his conviction. The court, in its reasoned decision, failed to adequately set out the grounds for holding the applicant criminally liable, although he had not personally conclude the contract but only carried out the line activation procedure.

Consequently, the Court has found a violation of the right to a reasoned decision within the scope of the right to a fair trial.