CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 20 mai 1998

.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. 31836/96                       by D.H.                       against Turkey        The European Commission of Human Rights (Second Chamber) sitting in private on 20 May 1998, the following members being present:                MM     J.-C. GEUS, President                  M.A. NOWICKI                  G. JÖRUNDSSON                  J.-C. SOYER                  H. DANELIUS            Mrs    G.H. THUNE            MM     F. MARTINEZ                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY                  P. LORENZEN                  E. BIELIUNAS                  E.A. ALKEMA                  A. ARABADJIEV              Ms     M.-T. SCHOEPFER, 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 27 February 1996 by D.H. against Turkey and registered on 12 June 1996 under file No. 31836/96;        Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;        Having deliberated;        Decides as follows:   THE FACTS        The applicant, born in 1971, is a Turkish citizen and resident in izmir. She is represented before the Commission by Mr Sakir Hepiyiler, a lawyer practising in izmir.        The facts of the present case, as submitted by the applicant, may be summarised as follows.        On 22 December 1989 the applicant, who was a student, participated in a debate in the canteen of the Ankara Gazi University. During the debate some of the participants shouted slogans. The police intervened and there ensued a fight between the police and the participants in the forum. Some of the policemen and participants were injured and two police cars were destroyed.        Following the incidents the applicant, along with some other students, was arrested by the police.        On 29 December 1989 she was brought before the Ankara State Security Court and thereafter she was released.        On 19 January 1990 the Public Prosecutor attached to the Ankara State Security Court instituted criminal proceedings against the applicant and 27 others.        On 4 October 1990 the State Security Court declined jurisdiction ratione materiae and referred the case to the Ankara Criminal Court.        On 12 May 1992 the applicant was convicted by the Ankara Criminal Court for committing three different offences; she was sentenced as follows:        -   to 1 year and 6 months' imprisonment and a fine for destroying State property (police cars);        -   to 3 years' imprisonment for resisting arrest by the police;        -   to 1 year and 6 months' imprisonment and a fine for taking part in an illegal demonstration.        On 13 May 1992 the applicant lodged an appeal with the Court of Cassation against the judgment.        On 28 March 1995 the Court of Cassation quashed the applicant's conviction for destroying State property and taking part in an illegal demonstration. It upheld the applicant's conviction for resisting arrest by the police.        The applicant applied to the Court of Cassation and requested that the decision of 28 March 1995 be rectified as her conviction for resisting to arrest by the police had not been quashed.        On 29 June 1995 the Court of Cassation dismissed her request for rectification of its decision.        Following the decision of the Court of Cassation, the Ankara Criminal Court retried the applicant along with two other accused. On 11 July 1995 the court handed down a judgment in which reference was made to all three charges initially brought against these persons   and which concluded that they had to be acquitted. The court considered that there was no evidence showing that the three accused had committed the offences in question.        On 21 August 1995 the applicant was arrested and imprisoned on the ground that she had been convicted of resisting arrest by the police.        The applicant filed a petition with the Ankara Criminal Court and requested to be released. She contended that she was being detained despite having been acquitted of all the charges brought against her by the Ankara Criminal Court's judgment of 11 July 1995.        On 15 November 1995 the Ankara Criminal Court dismissed the applicant's request for release. The court stated that her conviction for resisting police arrest had been upheld by the decision of the Court of Cassation and that it had become final on 28 March 1995. The court further stated that by its judgment dated 11 July 1995 the applicant had been acquitted only of the other two charges.        On 11 December 1995 the Ankara Assize Court dismissed the applicant's objection against this decision. It also considered that the applicant's conviction for resisting police arrest had become final by the Court of Cassation's decision and that her request for release had no legal basis.   COMPLAINTS        The applicant complains that she was detained despite having been acquitted by the Ankara Criminal Court's judgment of 11 July 1995. She submits that she was unlawfully deprived of her freedom. The applicant does not invoke any particular provision of the Convention.   THE LAW        The applicant complains that she was unlawfully deprived of her freedom despite having been acquitted.        The Commission recalls that for a deprivation of liberty to be lawful it must at any given time fall within one of the categories set out in paras. (a) to (f) of Article 5 para. 1 (Art. 5-1-a, 5-1-b, 5-1-c, 5-1-d, 5-1-e, 5-1-f) of the Convention (e.g., No. 8022/77, 8025/77 & 8027/77, Dec. 18.3.81, D.R. 25, p. 15).        The Commission considers that the applicant's complaint concerning the alleged unlawfulness of her detention falls to be considered under paragraph 1 (a) of Article 5   (Art. 5-1-a) which reads as follows:        "Everyone has the right to liberty and security of person. No one      shall be deprived of his liberty save in the following cases and      in accordance with a procedure prescribed by law:              a. the lawful detention of a person after conviction by a            competent court;..."        In the present case, the Commission notes at the outset that on 12 May 1992 the Ankara Criminal Court convicted the applicant of three offences. On 28 March 1995 the conviction concerning one of these offences, namely resisting arrest by the police, was confirmed by the Court of Cassation and became final, while the judgment of the Ankara Criminal Court was quashed as regards the applicant's conviction of the other two offences. In these circumstances, the powers of the Ankara Criminal Court, when it retried the applicant's case on 11 July 1995, were limited to those offences in respect of which the applicant's conviction had been quashed. Accordingly she could be acquitted only of these offences.        It is true that the Ankara Criminal Court's judgment of 11 July 1995 was formulated in a misleading way. The applicant believed that she had also been acquitted of the charge of resisting arrest by the police. Therefore, she opposed her detention for serving the sentence and requested to be released. However, her request was rejected by the Ankara Criminal Court and the Assize Court which both confirmed that there was a final conviction upheld by the Court of Cassation which could not be affected by the subsequent proceedings in the Ankara Criminal Court.        The Commission recalls that the interpretation of the provisions of the national legislation is in principle a matter for the domestic courts. This also applies where, as here, the manner in which the national law has been applied may give rise to certain doubts which call for clarification. The Commission is satisfied that in the present case the Turkish courts, when examining the lawfulness of the applicant's detention, correctly found that this detention was based on the applicant's conviction of one of the offences with which she had been charged and which had become final already in the first round of the proceedings when it was confirmed by the Court of Cassation. In these circumstances, the Commission considers that the applicant's detention was "lawful detention after conviction by a competent court" within the meaning of Article 5 para 1 a) (Art. 5-1-a) of the Convention.        The Commission further observes that, if in the particular circumstances of this case the determination of the lawfulness of the detention was not already incorporated in the judgments by which the applicant had been found guilty, there being a doubt as to whether these judgments could have been affected by the applicant's subsequent acquittal, the applicant in fact obtained a speedy judicial review of this question before two levels of jurisdiction. The requirements of Article 5 para. 4 (Art. 5-4) of the Convention have therefore also been met in the instant case.        It follows that the application must be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.        For these reasons, the Commission, by a majority,        DECLARES THE APPLICATION INADMISSIBLE.            M.-T. SCHOEPFER                               J.-C. GEUS       Secretary                                   President to the Second Chamber                       of the Second Chamber