Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 28773/95

by Ali IMIRGI

against Turkey

The European Commission of Human Rights (Second Chamber) sitting

in private on 26 February 1997, the following members being present:

Mrs. G.H. THUNE, President

MM. J.-C. GEUS

G. JÖRUNDSSON

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

M.A. NOWICKI

I. CABRAL BARRETO

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

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 18 April 1995 by

Ali IMIRGI against Turkey and registered on 27 September 1995 under

file No. 28773/95;

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 is a Turkish citizen, born in 1954, resident in

Manisa. Before the Commission he is represented by Ms. Bilge Uslu and

Mr. Ibrahim Uslu, both lawyers practising in Izmir.

The facts of the present case, as submitted by the applicant, may

be summarised as follows.

The applicant started working as an Insurance Agent of a Turkish

General Insurance Joint Stock Company (the "company"), on a contract

dated 8 March 1985. The applicant was dismissed on 3 October 1988. The

company served notice on the applicant that he owed them 17,891,816

Turkish lira in insured customers' premiums. It claimed that the

applicant had breached his fiduciary duty by keeping the premiums of

the insured customers instead of sending them to the company. The

applicant contested the company's allegations. Subsequently, the

insurance company requested the public prosecutor to institute criminal

proceedings against the applicant.

In an indictment dated 11 January 1989, the public prosecutor

charged the applicant under Articles 510-522 of the Turkish Criminal

Code, which stipulate that it is an offence for a person to spend,

consume, deny having received or to alter for the benefit of himself

or of another property entrusted to him.

On 14 September 1993 the Turgutlu First-Instance Court convicted

the applicant of an offence under Article 510 of the Turkish Criminal

Code. It sentenced the applicant to one year and six months'

imprisonment. It held that the applicant had breached his fiduciary

duty as an insurance agent by failing to send the customers' insurance

premiums to the company. Furthermore, the court relied on expert

evidence which had established according to a decision of the Izmir

Commercial Court that the applicant had failed to send the insurance

premiums in question to the company.

The applicant appealed against this judgment on the grounds that

his sentence fell to be considered under the provisions of the

Insurance Control Law as opposed to Article 510 of the Turkish Criminal

Code. On 13 September 1994 the Court of Cassation dismissed his appeal

and upheld the decision of the first instance court.

On 21 October 1994 the Court of Cassation's decision was served

on the applicant and he was sent to prison to serve his sentence. The

applicant is still in prison.

COMPLAINTS

1. The applicant complains that he did not have a fair trial as

guaranteed by Article 6 para. 1 of the Convention. He alleges that the

domestic courts failed to consider the principal provisions of the

Insurance Control Law which define the offence in question. He states

that the courts ignored the provisions of Article 48 of that law, and

that he was erroneously sentenced pursuant to Articles 510-522 of

Turkish Criminal Code which provide for heavier penalties.

2. The applicant complains under Article 7 para. 1 of the Convention

that the sentence he received was heavier than it would have been if

he had been sentenced under the Insurance Control Law.

3. The applicant complains under Article 8 of the Convention that

the court's decision to send him to prison infringed his private and

family life as the punishment prevents him from working as an

accountant and damages his social status.

THE LAW

1. The applicant complains that he did not have a fair trial as

guaranteed by Article 6 para. 1 (Art. 6-1) of the Convention. He

alleges that the domestic courts failed to consider the provisions of

the Insurance Control Law which defines the offence in question. He

states that the courts ignored the provisions of Article 48 of the

above-mentioned Law, and that he was erroneously sentenced pursuant to

Articles 510-522 of the Turkish Criminal Code which provide for heavier

penalties. The applicant also complains, on the basis of the same

facts, of a breach of Article 7 (Art. 7) of the Convention.

The Commission recalls that under Article 19 (Art. 19) of the

Convention its sole task is to ensure observance of the engagements

undertaken by the High Contracting Parties in the Convention. It is not

competent to examine applications concerning errors of law or fact

allegedly committed by the competent national authorities, to whom it

falls, in the first place, to interpret and apply domestic law (No.

19890/92, Dec. 3.5.93, D.R. 74 p. 239).

In this case, the Commission notes that the applicant's

complaints concern the national courts' evaluation of the facts and

evidence and the interpretation of the domestic law. The courts held

that the provisions of the Turkish Criminal Code were applicable to the

applicant's offence. The Commission considers it irrelevant whether the

applicant's behaviour also came within the scope of the Insurance

Control Law. The Commission finds no element which would allow it to

conclude that the courts established the facts in an arbitrary or

unreasonable manner or that they misinterpreted the applicable

provisions of the criminal law. Therefore, there is no appearance that

the applicant's conviction was not in conformity with Articles 6 and

7 (Art. 6, 7) of the Convention.

It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

2. The applicant also complains under Article 8 (Art. 8) of the

Convention that the First Instance Court's decision to send him to

prison infringed his private and family life as the punishment prevents

him from working as an accountant and damages his social status.

The Commission recalls that when a person is arrested and

detained in conformity with Article 5 para. 1 (Art. 5-1) of the

Convention, such arrest and detention must necessarily imply a

disruption of private life but this inevitable consequence of detention

cannot in principle be regarded as an interference with the right to

respect for private life protected by Article 8 (Art. 8) of the

Convention (No. 10427/92, Dec. 12.5.86, D.R. 47 p. 85).

In the present case the Commission notes that the applicant's

detention following his conviction under provisions of the Turkish

Criminal Code was in conformity with Article 5 para. 1 (a) (Art. 5-1-a)

of the Convention and there is no indication that there has been any

interference with the applicant's rights under Article 8 (Art. 8) of

the Convention going beyond the normal effects of criminal

detention.

It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.-T. SCHOEPFER G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber

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IMIRGI v. TURKEY

IMIRGI v. TURKEY

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