SECOND SECTION

DECISION

Application no . 51297/08 Kazı m ŞENTÜRK against Turkey

The European Court of Human Rights (Second Section), sitting on 15 January 2013 as a C hamber composed of:

Guido Raimondi , President, Danutė Jočienė , Dragoljub Popović , András Sajó , Işıl Karakaş , Paulo Pinto de Albuquerque , Helen Keller , judges, and Françoise Elens-Passos , Deputy Section Registrar ,

Having regard to the above application lodged on 14 October 2008,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Kazım Şentürk , is an Austrian national, who was born in 1948 and lives in Vienna . He was represented before the Court by Mr M. Karaahmetoğlu and Mr A. Heper , lawyers practising in Ditzingen .

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

3. In 1999, B.Ö. (hereinafter referred to as the “complainant”) was working at the factory owned by the applicant in Çorlu , Turkey .

4. On 16 September 2000 the complainant ’ s father reported to the police that his daughter, who was a minor at the time, had gone missing. On the same day, the applicant was questioned about her whereabouts.

5. On 20 September 2000 the applicant was further interrogated by the public prosecutor and he stated that he did not know the complainant ’ s whereabouts.

6. Subsequently, on 24 January 2002 the complainant was found by the police. Later on the same day, she filed a criminal complaint with the public prosecutor against the applicant, alleging that he had raped her and then abducted her to his uncle ’ s house in Istanbul . She explained that she was kept in that house under threat and that the applicant had raped her several times. She further explained that she had been forced to marry with the applicant ’ s cousin, H.B. and she had had sexual intercourse with him, thinking that he could save her.

7. On 22 November 2002 the applicant was summoned to the public prosecutor ’ s office. During his interrogation, he denied the accusations against him. He stated that the complainant, who worked in his factory, had problems with her family and in order to help her, he had taken her to his uncle ’ s house in Istanbul .

8. On 24 October 2003 the Bakırköy Public Prosecutor filed an indictment with the Bakırköy Assize Court , accusing the applicant and H.B. with child molestation and abduction pursuant to Articles 414 and 430 of the former Criminal Code.

9. In the course of the proceedings, on 27 February 2004, the complainant ’ s statement was taken on commission by the Çorlu Assize Court . Before the court, she repeated her previous statements taken by the public prosecutor but she informed the court that she wished to withdraw her complaint against the applicant, stating that in the meantime they had got married. The applicant ’ s lawyer, who was notified of the date and venue of the hearing, did not attend this hearing.

10. On 16 April 2004 the complainant ’ s statement taken by the Çorlu Assize Court was read out to the applicant at the hearing before the Bakırköy Assize Court . The applicant ’ s lawyer informed the court that he had no objections to this statement. In his defence submissions, the applicant further denied the accusations against him and asked the court to determine the real age of the complainant, arguing that she had not been a minor at the time. Accordingly, the court examined the birth records of the complainant which indicated that she was born in 1984.

11. During the criminal proceedings the Bakırköy Assize Court further heard the defence statements of the co-accused, Mr H.B. He explained that the applicant had brought the complainant to their house in Istanbul and admitted that he had also sexual intercourse with the complainant with her consent.

12. On 3 May 2007 the Bakırköy Assize Court acquitted the co-accused H.B. It further dropped the criminal proceedings against the applicant in so far as it concerned abduction, for being time-barred. However, it convicted him on account of child molestation and sentenced him to ten years ’ imprisonment. In convicting the applicant, the court based its decision on the statement of the co-accused and the complainant.

13. On 27 May 2008 the Court of Cassation, after holding a hearing on the merits of the case, dismissed the applicant ’ s appeal.

COMPLAINTS

14. The applicant complained under Article 6 of the Convention that he did not have a fair trial. He stated that the national court had erred in establishing the facts of the case. Relying on Article 6 § 3 (d) of the Convention, the applicant further complained that the statement of the complainant was taken on commission by the Çorlu Criminal Court, thereby depriving him of the opportunity to confront the witness.

THE LAW

15. The applicant alleged that his right to a fair trial was breached. In this connection, he relied on Article 6 § 1 of the Convention. He further alleged that he had been deprived of his right to confront the witness that had testified against him.

16. The Court recalls that it is not competent to deal with an application alleging that errors of law or fact have been committed by domestic courts, except where it considers that such errors might have involved a possible violation of any of the rights and freedoms set out in the Convention. The admissibility of evidence and related questions are primarily matters for regulation by national law and it is in principle for national courts to assess the evidence before them. The Court ’ s task is not to examine whether the applicant was guilty or innocent of the offences of which he was convicted, but to ascertain whether the proceedings as a whole, including the way which the evidence was taken, were fair (see Schenk v. Switzerland , 12 July 1988, Series A no. 140, p. 29, § 46, and García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999 I).

17. In the present case, the Court observes that the decisions of the Bakırköy Assize Court and the Court of Cassation were given on the basis of domestic law and the particular circumstances of the case. The Bakırköy Assize Court heard several witnesses and examined the birth records of the complainant. The court held that by having sexual intercourse with a minor, the applicant had committed child molestation and sentenced him accordingly. Furthermore, the case was examined at two levels of jurisdiction and the applicant was assisted by a lawyer during the proceedings. It is clear from the documents in the file that he was able to present his case adequately and the courts examined the defence arguments and explained their reasons, in rejecting the applicant ’ s requests.

18. The Court finds no element, which would allow it to conclude that the national courts acted in an arbitrary or unreasonable manner in establishing the facts or interpreting the applicable provisions of the domestic law. Therefore, there is no appearance of a violation of the applicant ’ s rights under Article 6 § 1 of the Convention.

19. In so far as the applicant complained under Article 6 § 3 (d) of the Convention, the Court observes that during the domestic proceedings, at the request of the trial court, the complainant was heard on commission. The Court further observes that in her statement before the Çorlu Assize Court , the complainant repeated her previous statement made to the public prosecutor on 24 January 2002, but indicated that she wished to withdraw her complaint as in the meantime she had married the applicant. This statement was subsequently read out to the applicant at a hearing before the Bakırköy Assize Court and he was given an opportunity to submit his counter arguments. The applicant ’ s representative informed the trial court that he had no objections against this statement (see para . 10 above). The Court further notes that in convicting the applicant, the trial court did not solely rely on the complainant ’ s statement dated 24 January 2002, but took into account the statement of the other co-accused, who confirmed that the applicant had brought the complainant to his parents ’ house in Istanbul (see, a contrario , Hulki GüneÅŸ v. Turkey , no. 28490/95, § 94-96, ECHR 2003 ‑ VII (extracts)).

20. In this connection, the Court reiterates that Article 6 § 3(d) enshrines the principle that, before an accused can be convicted, all evidence against him must normally be produced in his presence at a public hearing with a view to adversarial argument. Exceptions to this principle are possible but must not infringe the rights of the defence, which, as a rule, require that the accused should be given an adequate and proper opportunity to challenge and question a witness against him, either when that witness makes his statement or at a later stage of proceedings (see, Al- Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, § 118, ECHR 2011).

21. In the present case, the Court notes that the complainant ’ s statement was taken on commission, as she did not reside in Istanbul . The applicant ’ s defence lawyer was also notified about the date and venue of this hearing, however, he failed to participate and question the complainant, on his own initiative. Thus, the applicant ’ s defence lawyer did not exercise, as he could have done, his legal right to question the complainant in person at the judicial hearing. Furthermore, the applicant was given an opportunity to put forward his counter arguments to the accusations. The Court also notes that the statement of the complainant was not the sole evidence on which the applicant ’ s conviction was based. It is clear from the documents in the file that the trial court convicted the applicant on the basis of the statement of the co-accused.

22. Having regard to the above, the Court concludes that in the present case, the applicant was given a proper and adequate opportunity to challenge and question the evidence against him.

23. In view of the foregoing, the Court considers that the applicant ’ s complaints should be declared inadmissible for being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously ,

Declares the application inadmissible.

Françoise Elens-Passos Guido Raimondi Deputy Registrar President