CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 7 septembre 2004

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Pellonpää ,   Mr   R. Türmen ,   Mrs   V. Strážnická ,   Mr   R. Maruste ,   Mr   S. Pavlovschi ,   Mr   L. Garlicki, judges , and Ms   F. Elens-Passos , Deputy Section Registrar , Having regard to the above application lodged on 13 June 2000, Having deliberated, decides as follows: THE FACTS The applicant, M.A.T., is a Turkish national, who was born in 1960 and lives in Istanbul. He is represented before the Court by Mr   Ali Koyuncu, a lawyer practising in Ankara. The facts of the case, as submitted by the applicant, may be summarised as follows.   On 2 March 1993 the Istanbul public prosecutors' office filed an indictment against the applicant and seven other suspects for bribery and for being an accessory to bribery in transactions concerning medical equipment supplied to polyclinics. The public prosecutors' office requested that the applicant be charged and convicted under Articles 80, 212 § 2 and 216 of the Criminal Code. On 9 March 1993 the Istanbul Assize Court commenced the trial against the applicant and the other suspects. On 11 October 1994 the Istanbul Assize Court acquitted the applicant and the other suspects on account of lack of evidence. On 11 July 1995 the Court of Cassation quashed the judgment of the Istanbul Assize Court in respect of the applicant and five other suspects. On 6 October 1995 the Istanbul Assize Court commenced the trial against the applicant and the other suspects. On 22 September 1998 the Istanbul Assize Court convicted the applicant of being an accessory to bribery. The court considered the amount of the money the applicant obtained by the applicant was small in respect of purchasing power and sentenced him to one year, ten months and twenty days' imprisonment and to a fine of 29,108,333 Turkish liras. On 29 March 2000 the Court of Cassation, after holding a hearing, upheld the judgment of the Istanbul Assize Court in respect of the applicant. However the Court considered that the amount of money obtained by the applicant at the date of the offence could not be considered to be light in respect of purchasing power and varied the sentence of the applicant to three years, ten months and twenty days' imprisonment and to a fine of 49,950,000 Turkish liras in accordance with Article 322 of the Criminal Procedure Law. COMPLAINTS The applicant submits under Article 6 of the Convention that the Court of Cassation sentenced him to a heavier sentence without giving him adequate time for his defence. The applicant contends under Article 6 § 1 that the length of the criminal proceedings against him was excessive. The applicant complains under Article 14 of the Convention that he was discriminated against as he was sentenced to the same sentence as those who had received more financial gain than him.   THE LAW 1.   The applicant contends under Article 6 § 1 that the length of the criminal proceedings against him was excessive. The Court considers that it cannot on the basis of the case file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of the Court, to give notice of them to the respondent Government. 2. The applicant submits under Article 6 of the Convention that the Court of Cassation sentenced him to a heavier sentence without giving him adequate time for his defence. The Court reiterates that, although the length of a prison sentence passed by a competent court in criminal proceedings does not as such generally fall within the scope of the Convention, Article 6 § 1 of the Convention does cover the whole of the criminal proceedings in issue, including the determination of sentence (see Boons v. the Netherlands (dec.), no.   40171/98, 27 June 2000). The Court further considers that an increase in sentence following the original sentencing decision does not of itself disclose any violation of Article 6 (see, Turner v. the United Kingdom , no. 12950/87, Commission decision of 9 March 1988, Boons , cited above). The Court observes that the applicant was charged with being an accesory to bribery and that he has been convicted as charged. In this connection, the Court notes that the Court of Cassation varied the initial sentence of the applicant considering that the amount received by the applicant was substantial in comparison with the purchasing power at the time of the commission of the offence. The Court notes that the Court of Cassation did not re-qualify the charges but only re-assessed the sentence in accordance with the domestic provisions and its own assessment of the evidence which was already present in the case-file. The Court considers that in the instant case, the applicant's right to an adequate time for his defence could not be considered as having been breached having regard to the fact that the sentencing was not changed due to anything other then the assessment of the amount received by the applicant as a bribe at the time of the commission of the offence. Considering that the Court of Cassation gave explicit reasons as to the grounds on which it considered that a higher sentence was called for, the Court cannot find that the manner in which the applicant's sentence was increased on appeal deprived him of a fair trial within the meaning of Article 6 of the Convention. Consequently, this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4. 3.   The applicant complains under Article 14 of the Convention that he was discriminated against as he was sentenced to the same sentence as those who had received more financial gain than him. The Court reiterates that Article 14 of the Convention complements the other substantive provisions of the Convention and its Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions. Although the application of Article 14 does not presuppose a breach of those provisions - and to this extent it is autonomous - there can be no room for its application unless the facts in issue fall within the ambit of one or more of the latter (see, among many other authorities, Van Raalte v.   the Netherlands , judgment of 21   February 1997, Reports of Judgments and Decisions 1997-I, p.   184, §   33). The Court does not find it necessary to decide whether levels of sentence imposed by a court may be said to fall within the ambit of Article 6 of the Convention, since the applicant's claim under Article 14 is in any event inadmissible. The Court reiterates that the Court of Cassation explained its reasons for imposing the increased sentence of imprisonment on the applicant. In these circumstances, although the right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention may be violated when States without an objective and reasonable justification, fail to treat differently persons whose situations are significantly different (see Thlimmenos v. Greece [GC], no. 34369/97, § 44, ECHR 2000-IV), the mere fact that the sentence found by the court to be appropriate in respect of the applicant was the same as that of other co-defendants, whose financial gain as a result of the offence may have been greater than his, affords no basis for concluding that the applicant was subjected to discriminatory treatment. Consequently, this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4. For these reasons, the Court unanimously Decides to adjourn the examination of the applicant's complaint concerning the length of the criminal proceedings; Declares the remainder of the application inadmissible.   Françoise Elens-Passos   Nicolas bratza Deputy Section Registrar   President