Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 22906/93

by Sophia Gudrun HANSEN

against Turkey

The European Commission of Human Rights (First Chamber) sitting

in private on 7 December 1994, the following members being present:

MM. A. WEITZEL, President

C.L. ROZAKIS

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Mrs. J. LIDDY

MM. M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

Mrs. M.F. BUQUICCHIO, 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 24 September 1994

by Sophia Gudrun Hansen against Turkey and registered on 14 November

1993 under file No. 22906/93/;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

FACTS

The applicant is a citizen of Iceland. She was born in 1959 and

lives in Reikjavik, Iceland. Before the Commission, she is represented

by Hasip Kaplan, a lawyer practising in Istanbul, Turkey.

The facts as stated by the applicant may be summarised as

follows:

In 1984 the applicant married a Turkish man (H). The couple had

already two daughters born in 1981 and 1982. They lived in Iceland.

In 1990 H. took the children to Istanbul for a summer holiday

and never returned.

On 25 October 1991, the applicant instituted divorce proceedings

in Istanbul at the 8th Chamber of Bakirkoy Court of First Instance

(Asliye Hukuk Mahkemesi) and requested the guardianship of her

daughters.

During the hearings, some Turkish people demonstrated against the

applicant outside the court-house. The demonstrators allegedly acted

aggressively against the applicant. Her request to have criminal

proceedings instituted against the demonstrators who allegedly acted

aggresively against her was rejected by the Public Prosecutor of

Bakirköy.

On 12 November 1992 the Bakirköy Court of First Instance issued

a decree of divorce and granted H. the guardianship of the children.

The applicant appealed against this decision.

On 25 February 1993 the Court of Cassation (Yargitay) set aside

the decision and returned the file to the Court of First Instance. The

proceedings are still pending before the Bakirkoy Court of First

Instance.

On 30 June 1993 the Bakirköy Court of First Instance adopted an

interim measure by which the applicant was granted the right to visit

her daughters regularly. Owing to H's refusal to comply with the

decision, the applicant could not have her visiting rights enforced.

She filed a complaint with the Public Prosecutor of Bakirköy who

started criminal proceedings against H. The applicant joined the

proceedings as an intervening party (müdahil). The proceedings are

still pending before the Bakirköy Criminal Court of First Instance

(Asliye Ceza Mahkemesi).

COMPLAINTS

1. The applicant complains that she did not have a trial within a

reasonable time in the criminal proceedings instituted against H. for

his failure to comply with the interim decision of the Bakirköy Court

of First Instance.

2. The applicant further complains of the unfairness of the Public

Prosecutor's decision dismissing her request to start criminal

proceedings against the persons who allegedly acted aggressively

against her.

3. The applicant also complains that she did not have a fair trial

in the divorce and guardianship proceedings. She asserts in particular

that the judge of the Bakirköy Court of First Instance, while giving

his decision dated 12 November 1992, has been influenced to her

detriment by the demonstrations held outside the court-house.

The applicant invokes Article 6 para. 1 in relation to all of her

complaints.

THE LAW

1. The applicant complains that the proceedings against H. before

the Bakirköy Criminal Court of First Instance exceeded the reasonable

time provided for in Article 6 para. 1 (Art. 6-1) of the Convention.

The Commission first recalls that the rights referred to in

Article 6 para. 1 (Art. 6-1) of the Convention refer to the accused and

not to the victim of a criminal offence. However to the extent that the

applicant participated in the proceedings, the question arises whether

in this capacity she intended to assert her civil rights and therefore

can nevertheless rely on the provisions of Article 6 (Art. 6) of the

Convention (cf. mutatis mutandis, Eur. Court H.R., De Azevedo judgment

of 23 October 1990, Series A no. 189, p. 17, para. 67).

The Commission does not consider it necessary to answer this

question for the following reasons:

The Commission recalls that the reasonableness of the length of

the proceedings must be assessed in accordance with the circumstances

of the case and the criteria laid down by the Court: complexity of the

case, conduct of the applicant and the competent authorities and what

is at stake for the former. (see, inter alia, Zimmerman and Steiner

judgment of 13 July 1983, Series A no. 66, p. 11 para. 24)

The Commission notes that in the present case, the applicant has

not shown any substantial periods of inactivity attributable to the

judicial authorities. Moreover, she did not otherwise substantiate this

allegation.

For the above reasons, even assuming that Article 6 (Art. 6) is

applicable to the present case, this part of the application is in any

event manifestly ill-founded within the meaning of Article 27 para 2

(Art. 27-2) of the Convention.

2. The applicant also complains under Article 6 para. 1

(Art. 6-1) of the Convention of the unfairness of the the Public

Prosecutor's decision dismissing her request to institute criminal

proceedings against persons who allegedly aggressed her.

The Commission recalls that no right to institute criminal

proceedings against a third party is, as such, guaranteed by the

Convention.

It follows that this part of the application is incompatible

ratione materiae with the provisions of the Convention within the

meaning of Article 27 para. 2 (Art. 27-2).

3. The applicant finally complains of the unfairness of the divorce

and guardianship proceedings and in particular, the unfairness of the

decision of the Bakirköy Court of First Instance dated

12 November 1992. The applicant invokes Article 6 para. 1 (Art. 6-1)

of the Convention. The Commission recalls that the compliance with the

requirements of a fair trial must be examined in each case having

regard to the development of the proceedings as a whole. However, it

cannot be excluded that a specific factor may be so decisive as to

enable the fairness of the trial to be assessed at an earlier stage in

the proceedings (Can v. Austria, Comm. Report 12.7.84, para. 48, Eur.

Court H.R. Series A no. 96, p. 15).

In the present case, the proceedings concerning divorce and

guardianship are still pending. Thus, an examination of the proceedings

as a whole is not possible at this stage.

Moreover, there is no indication in the file of a specific factor

that was so decisive as to allow an assessment of the fairness of the

proceedings at this stage. On the contrary the Commission notes that

the decision of the Bakirköy Court of First Instance of

12 November 1992 has been quashed by the Court of Cassation.

It follows that the application in this respect is manifestly

ill-founded and must be rejected in accordance with Article 27 para.

2 (Art. 27-2) of the Convention.

In so far as the above complaint could be understood as relating

to Article 8 (Art. 8) of the Convention, the Commission recalls that

under Article 26 (Art. 26) of the Convention the Commission may only

deal with a matter after all domestic remedies have been exhausted

according to the generally recognized rules of international law.

In the present case the proceedings concerning guardianship, as

indicated above, are still pending before the Bakirköy Court of First

Instance and no final decision on the question of her rights in respect

of her children has as yet been taken.

It follows that the applicant in this respect cannot be

considered to have exhausted the domestic remedies within the meaning

of the above provision and this part of the application must therefore

be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.

For these reasons, the Commission unanimously

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (A. WEITZEL)

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HANSEN v. TURKEY

HANSEN v. TURKEY

LEXI