Lexploria

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

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D.H. v. TURKEY

D.H. v. TURKEY

LEXI