CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 16 septembre 2004

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Ress , President ,   Mr   L. Caflisch ,   Mr   R. Türmen ,   Mr   B. Zupančič ,   Mrs   H.S. Greve ,   Mr   K. Traja ,   Mrs   A. Gyulumyan, judges , and Mr V. Berger , Section Registrar , Having regard to the above application lodged on 13 November 2002, Having deliberated, decides as follows: THE FACTS The applicant, Mr Faruk Selek, is a Turkish national, who was born in 1953 and lives in Istanbul. He is represented before the Court by Ms   T.   Esen, Ms Ö. Öker and Ms S.P. Çelik, lawyers practising in Istanbul. The facts of the case, as submitted by the applicant, may be summarised as follows. The applicant was a civil servant at the Istanbul Municipality. On 22 December 1994 he was arrested by police officers of the Istanbul Security Directorate on suspicion of forgery. He accepted the charges before the police. On 26 December 1994 the applicant was brought before the investigating judge at the Istanbul Magistrates Court. Subsequently the investigating judge ordered that the applicant be placed in detention on remand. On 2 January 1995 the public prosecutor filed an indictment with the Istanbul Criminal Court against the applicant and his three co-accused (O.I, M.T. and N.S.) requesting them to be punished under Articles 503 §   1 and   522 of the Criminal Code for forgery. The public prosecutor further decided that the Law on Prosecution of Civil Servants (Memurin Muhakemeti Kanunu ) finds no implementation in this case as the offence was an ordinary forgery. The proceedings before the Criminal Court began on 24 January 1995. The applicant denied the charges before the court. He submitted that his statement in the police station had been taken under duress. On 24 February 1995 the court released the applicant from detention on remand. On 10 March 1995 the Istanbul Public Prosecutor lodged another investigation about the applicant concerning the allegation of abuse of office in relation to the incident of forgery. When conducting the investigation, the public prosecutor decided that he had no jurisdiction over the case as the applicant was a civil servant. He sent the file to the Istanbul Provincial Administrative Council (İstanbul İl İdare Kurulu) pursuant to the provisions of the Law on Prosecution of Civil Servants, in order to seek authorisation to prosecute the applicant. On 7 December 1995 the Provincial Administrative Council decided not to authorise the prosecution of the applicant. On 20 January 1998 the Supreme Administrative Court altered this decision and ordered that the applicant be put on trial. On 25 March 1998 the public prosecutor filed an indictment with the Istanbul Criminal Court accusing the applicant of abuse of office. On 10 December 1998 the Criminal Court decided to join the two cases that were pending before it. During the conduct of the criminal proceedings, the court obtained the applicant’s and his co-accused’s testimonies. It heard four other witnesses before it, also took note of the records signed by the eye witnesses on the day of the incident. It further asked the applicant as to whether he had any counter-arguments against these. On 20 May 1999 the court decided that the criminal proceedings concerning one of the defendants (O.I.) should proceed separately as he could not be found. The court convicted the applicant of the offences at issue and sentenced him to ten months’ imprisonment and a fine of TRL   11,059,166,666, then commuted the imprisonment to a fine and sentenced the applicant to a total fine of TRL 11,062,166,166. It also suspended the execution of the sentence in accordance with Section 6 of Law No. 647. The applicant and the public prosecutor both appealed against the decision on the grounds that there was no concrete evidence on which the applicant could be convicted. On 27 May 2002 the Court of Cassation rejected the reasons for appeal but quashed the judgment on the grounds that the criminal proceedings concerning M.T. should be discounted on account of the statute of limitations, and on account of the miscalculation of the amount of the fine that was imposed on the applicant. The Court of Cassation did not order a retrial in this instance, but corrected the amount by reducing the fine to TRL   7,312,166,666 and upheld the judgment with this amendment. COMPLAINTS The applicant complains under Article 5 of the Convention that he was detained without an administrative decision which would authorise a prosecution against him. He further alleges that his detention on remand was unreasonably long. The applicant invokes Article 6 of the Convention about the unfairness and the length of the criminal proceedings. THE LAW 1.     The applicant complains under Article 5 §§ 3 and 4 of the Convention that although he was a civil servant he had been arrested by the police and later detained by the investigating judge without an administrative decision to authorise his prosecution. He further submits that the Istanbul Criminal Court did not release him from detention on remand at the first hearing. The Court observes that the applicant was released from detention on remand on 24 February 1995 whereas the application was brought before the Court on 13 November 2002, that is more than six months after the detention complained of. The Court therefore concludes that this part of the application has been introduced out of time and must be rejected under Article 35 §§ 1 and 4 of the Convention. 2.     The applicant alleges that the length of the criminal proceedings brought against him contravened the “reasonable time” requirement of Article   6 § 1 of the Convention. The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint, and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this complaint to the respondent Government. 3.     The applicant further complains under Article 6 §§ 1 and 2 of the Convention that his right to a fair trial was breached as regards to national courts’ evaluation of facts and interpretation of domestic law. He alleges that the Court of Cassation discounted the criminal proceedings against his co-accused on the grounds of statute of limitations whereas they did not consider the same for him despite the fact that he was charged with the same offence. The applicant further submits that he was convicted of forgery on the sole evidence of confessions extracted from him under duress. The Court reiterates that it is not competent to examine applications concerning errors of law or fact allegedly committed by the national authorities, which are competent in the first place to interpret and apply the domestic law. The Court observes that as a difference from his co-accused the applicant had been subjected to two different criminal proceedings (one was of forgery and the other abuse of office), which were later joined by the court. Thus the applicant’s sentence was increased for being a civil servant and committing to the offence of forgery during his duty. As regards the complaint that he was convicted of forgery on the sole evidence of confessions extracted from him under duress, the Court notes that the Criminal Court obtained oral evidence from various witnesses, took note of the records that were signed by the eye-witnesses on the day of the incident, and heard the applicant’s argument against these statements. The court then held that there was sufficient evidence to conclude that the applicant had abused his position at work, becoming involved in forgery. Therefore the statement made by the applicant during the pre-trial detention was not the sole grounds for his conviction; the court relied on the evidence given by several witnesses as well as the applicant’s statement before it and convicted him on the basis of the facts and evidence as a whole. In light of the foregoing, the Court’s finds no element, which would allow it to conclude that, in the present case, the national authorities acted in an arbitrary or unreasonable manner in establishing the facts or interpreting the applicable provisions of the domestic law (see Barim v. Turkey (dec.), no.   34536/97, 12 January 1999, and Tamkoç v. Turkey (dec.), no.   31881/96, 11   January 2000). It follows that this part of the application must be rejected as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention. 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.   Vincent Berger   Georg Ress   Registrar   President