CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 7 décembre 1994

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                          Application No. 22906/93                        by Sophia Gudrun HANSEN                        against Turkey        The European Commission of Human Rights (First Chamber) sitting in private on 7 December 1994, the following members being present:              MM.    A. WEITZEL, President                  C.L. ROZAKIS                  F. ERMACORA                  E. BUSUTTIL                  A.S. GÖZÜBÜYÜK            Mrs.   J. LIDDY            MM.    M.P. PELLONPÄÄ                  B. MARXER                  G.B. REFFI                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  E. KONSTANTINOV                  G. RESS              Mrs.   M.F. BUQUICCHIO, Secretary to the Chamber        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 24 September 1994 by Sophia Gudrun Hansen against Turkey and registered on 14 November 1993 under file No. 22906/93/;        Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;        Having deliberated;        Decides as follows:   FACTS        The applicant is a citizen of Iceland. She was born in 1959 and lives in Reikjavik, Iceland. Before the Commission, she is represented by Hasip Kaplan, a lawyer practising in Istanbul, Turkey.        The facts as stated by the applicant may be summarised as follows:        In 1984 the applicant married a Turkish man (H). The couple had already two daughters born in 1981 and 1982. They lived in Iceland.        In 1990 H. took the children to Istanbul for a summer holiday and never returned.        On 25 October 1991, the applicant instituted divorce proceedings in Istanbul at the 8th Chamber of Bakirkoy Court of First Instance (Asliye Hukuk Mahkemesi) and requested the guardianship of her daughters.        During the hearings, some Turkish people demonstrated against the applicant outside the court-house. The demonstrators allegedly acted aggressively against the applicant. Her request to have criminal proceedings instituted against the demonstrators who allegedly acted aggresively against her was rejected by the Public Prosecutor of Bakirköy.        On 12 November 1992 the Bakirköy Court of First Instance issued a decree of divorce and granted H. the guardianship of the children. The applicant appealed against this decision.        On 25 February 1993 the Court of Cassation (Yargitay) set aside the decision and returned the file to the Court of First Instance. The proceedings are still pending before the Bakirkoy Court of First Instance.        On 30 June 1993 the Bakirköy Court of First Instance adopted an interim measure by which the applicant was granted the right to visit her daughters regularly. Owing to H's refusal to comply with the decision, the applicant could not have her visiting rights enforced. She filed a complaint with the Public Prosecutor of Bakirköy who started criminal proceedings against H.   The applicant joined the proceedings as an intervening party (müdahil). The proceedings are still pending before the Bakirköy Criminal Court of First Instance (Asliye Ceza Mahkemesi).   COMPLAINTS   1.    The applicant complains that she did not have a trial within a reasonable time in the criminal proceedings instituted against H. for his failure to comply with the interim decision of the Bakirköy Court of First Instance.   2.    The applicant further complains of the unfairness of the Public Prosecutor's decision dismissing her request to start criminal proceedings against the persons who allegedly acted aggressively against her.   3.    The applicant also complains that she did not have a fair trial in the divorce and guardianship proceedings. She asserts in particular that the judge of the Bakirköy Court of First Instance, while giving his decision dated 12 November 1992, has been influenced to her detriment by the demonstrations held outside the court-house.        The applicant invokes Article 6 para. 1 in relation to all of her complaints.   THE LAW   1.    The applicant complains that the proceedings against H. before the Bakirköy Criminal Court of First Instance exceeded the reasonable time provided for in Article 6 para. 1 (Art. 6-1) of the Convention.        The Commission first recalls that the rights referred to in Article 6 para. 1 (Art. 6-1) of the Convention refer to the accused and not to the victim of a criminal offence. However to the extent that the applicant participated in the proceedings, the question arises whether in this capacity she intended to assert her civil rights and therefore can nevertheless rely on the provisions of Article 6 (Art. 6) of the Convention (cf. mutatis mutandis, Eur. Court H.R., De Azevedo judgment of 23 October 1990, Series A no. 189, p. 17, para. 67).        The Commission does not consider it necessary to answer this question for the following reasons:        The Commission recalls that the reasonableness of the length of the proceedings must be assessed in accordance with the circumstances of the case and the criteria laid down by the Court: complexity of the case, conduct of the applicant and the competent authorities and what is at stake for the former. (see, inter alia, Zimmerman and Steiner judgment of 13 July 1983, Series A no. 66, p. 11 para. 24)        The Commission notes that in the present case, the applicant has not shown any substantial periods of inactivity attributable to the judicial authorities. Moreover, she did not otherwise substantiate this allegation.        For the above reasons, even assuming that Article 6 (Art. 6) is applicable to the present case, this part of the application is in any event manifestly ill-founded within the meaning of Article 27 para 2 (Art. 27-2) of the Convention.   2.    The applicant also complains under Article 6 para. 1 (Art. 6-1) of the Convention of the unfairness of the the Public Prosecutor's decision dismissing her request to institute criminal proceedings against persons who allegedly aggressed her.        The Commission recalls that no right to institute criminal proceedings against a third party is, as such, guaranteed by the Convention.        It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2).   3.    The applicant finally complains of the unfairness of the divorce and guardianship proceedings and in particular, the unfairness of the decision of the Bakirköy Court of First Instance dated 12 November 1992. The applicant invokes Article 6 para. 1 (Art. 6-1) of the Convention. The Commission recalls that the compliance with the requirements of a fair trial must be examined in each case having regard to the development of the proceedings as a whole. However, it cannot be excluded that a specific factor may be so decisive as to enable the fairness of the trial to be assessed at an earlier stage in the proceedings (Can v. Austria, Comm. Report 12.7.84, para. 48, Eur. Court H.R. Series A no. 96, p. 15).        In the present case, the proceedings concerning divorce and guardianship are still pending. Thus, an examination of the proceedings as a whole is not possible at this stage.        Moreover, there is no indication in the file of a specific factor that was so decisive as to allow an assessment of the fairness of the proceedings at this stage. On the contrary the Commission notes that the decision of the Bakirköy Court of First Instance of 12 November 1992 has been quashed by the Court of Cassation.        It follows that the application in this respect is manifestly ill-founded and must be rejected in accordance with Article 27 para. 2 (Art. 27-2) of the Convention.        In so far as the above complaint could be understood as relating to Article 8 (Art. 8) of the Convention, the Commission recalls that under Article 26 (Art. 26) of the Convention the Commission may only deal with a matter after all domestic remedies have been exhausted according to the generally recognized rules of international law.        In the present case the proceedings concerning guardianship, as indicated above, are still pending before the Bakirköy Court of First Instance and no final decision on the question of her rights in respect of her children has as yet been taken.        It follows that the applicant in this respect cannot be considered to have exhausted the domestic remedies within the meaning of the above provision and this part of the application must therefore be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.        For these reasons, the Commission unanimously        DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the First Chamber         President of the First Chamber        (M.F. BUQUICCHIO)                         (A. WEITZEL)