AS TO THE ADMISSIBILITY OF

Application No. 39977/98

by Mehmet ATKIN

against Turkey

The European Commission of Human Rights (Second Chamber) sitting in private on 21 October 1998, the following members being present:

MM J.-C. GEUS, President

M.A. NOWICKI

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

MM F. MARTINEZ

I. CABRAL BARRETO

D. ŠVÁBY

P. LORENZEN

E. BIELIŪNAS

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 11 June 1997 by Mehmet Atkĸn against Turkey and registered on 20 February 1998 under file No. 39977/98;

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, who was born in 1951, is a Turkish citizen. He is a customs broker, resident in Ä°stanbul . Before the Commission he is represented by Mr Muhammed Akif Erol , a lawyer practising in Ä°stanbul .

The facts of the present case, as submitted by the applicant, may be summarised as follows.

On 28 December 1988 the applicant was questioned by a customs inspector concerning the alleged smuggling of electronic devices.

On 7 March 1989 the customs inspector submitted his report and on 18 May 1989 the Edirne Public Prosecutor started criminal proceedings against the applicant in the Edirne Assize Court.

The applicant, along with nine other defendants, was charged with smuggling electronic devices contrary to Law No. 1918.

On 27 July 1989 the applicant was placed in detention on remand. He was released on 19 June 1990 pending trial.

On 10 September 1991 the Edirne Assize Court declared that it had no jurisdiction over the matter and transferred the case-file to the Ä°stanbul State Security Court. On 25 December 1992 the Ä°stanbul State Security Court in turn declared that it lacked jurisdiction and sent the case-file back to the Edirne Assize Court.

On 26 December 1995 the Edirne Assize Court convicted the applicant of organized smuggling and sentenced him to nine years' imprisonment, plus a fine of 6,158,746,372 Turkish Liras. The applicant, who was present during the hearing, was immediately detained and sent to Edirne Prison to serve his term. He was released from prison on 7 February 1997.

On 25 December 1996 the applicant's appeal to the Court of Cassation was rejected.

On 21 May 1997 the Court of Cassation dismissed the applicant's request for rectification of the decision of 25 December 1996.

COMPLAINTS

1. The applicant complains under Article 5 para. 3 of the Convention that his detention on remand was prolonged beyond a reasonable time.

2. The applicant further alleges under Article 6 of the Convention that his right to a fair trial was breached as regards the national courts' evaluation of facts and interpretation of domestic law. He further submits that the national courts failed to set out the reasons on which their decisions were based.

3. The applicant further complains that the criminal proceedings brought against him were not concluded within a reasonable time as required by Article 6 para. 1 of the Convention. He submits that the Edirne Public Prosecutor started criminal proceedings against him on 18 May 1989 and that the Court of Cassation delivered its final judgment on 25 December 1996, more than seven years later.

THE LAW

1. The applicant complains under Article 5 para. 3 of the Convention that his detention on remand was prolonged beyond a reasonable time.

The Commission recalls that it is not required to decide whether or not the facts alleged by the applicant disclose any appearance of a violation of Article 5, as Article 26 of the Convention provides that the Commission "may only deal with the matter ... within a period of six months from the date on which the final decision was taken. In the absence of domestic remedies, the six-month period runs from the act complained of".

The Commission observes that in the instant case, the applicant was placed in detention on remand on 27 July 1989 and was released on 19 June 1990. Therefore, the six-month period began on 19 June 1990,  whereas the application was introduced on 11 June 1997, i.e. more than six months later.

It follows that the applicant's complaint under Article 5 of the Convention has been introduced out of time and must be rejected under Article 27 para. 3 of the Convention.

2. The applicant further alleges under Article 6 of the Convention that his right to a fair trial was breached as regards the national courts' evaluation of facts and interpretation of domestic law. He further submits that the national courts failed to set out the reasons on which their decisions were based.

The Commission first recalls that it is not competent to examine an application relating to errors of fact or law allegedly committed by a domestic court, unless it considers that such errors might have involved a violation of the rights and freedoms set forth in the Convention. The assessment of evidence is in the first place a matter for the jurisdiction of the domestic courts and cannot be examined by the Commission unless there is reason to believe that the court drew arbitrary or grossly unfair conclusions from the facts submitted to it (No. 25062/94, Dec. 18.10.95, D.R. 83, p. 77).

The Commission also observes that the question whether proceedings have been conducted in accordance with the requirements of a fair trial, as provided for Article 6 para. 1 of the Convention, must be decided on the basis of an assessment of the proceedings as a whole (see Eur. Court HR, Windisch v. Austria judgment of 27 September 1990, Series A no. 186, p. 10, para. 25).

In the present case the applicant's complaint relates to the Edirne Assize Court's assessment of evidence rather than how that evidence was adduced. The court convicted the applicant on the basis of the facts and evidence as a whole. There is nothing to suggest that the court drew arbitrary conclusions from the evidence submitted to it.

As regards the complaint concerning the national courts' failure to set out the reasons on which their decisions were based, the Commission notes that in the present case, the Edirne Assize Court explained the reasons for its judgment of 26 December 1995 at length. It also observes that the reasons on which the courts based their judgments are sufficient to exclude the possibility that the evaluation of the evidence and the interpretation of domestic law were arbitrary.

In these circumstances, the Commission finds no ground to conclude that the allegations raised by the applicant in this respect amount to unfairness  contrary to the requirements of Article 6 para. 1 of the Convention.

It follows that this part of the complaint must be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 of the Convention.

3. The applicant also complains that the criminal proceedings brought against him were not concluded within a reasonable time as required by Article 6 para. 1 of the Convention. He submits that the Edirne Public Prosecutor started criminal proceedings against him on 18 May 1989 and that the Court of Cassation delivered its final judgment on 25 December 1996, more than seven years later.

The Commission considers that it cannot, on the basis of the file, determine the admissibility of the complaint and that it is therefore necessary, in accordance with Rule 48 para. 2 (b) of the Rules of the Procedure, to give notice of this complaint to the Turkish Government.

For these reasons, the Commission,

DECIDES TO ADJOURN the examination of the applicant's complaint relating to the length of the criminal proceedings;

unanimously,

DECLARES INADMISSIBLE the remainder of the application.

   M.-T. SCHOEPFER                                                 J.-C. GEUS

      Secretary                                                                   President

to the Second Chamber                                      of the Second Chamber