FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 43840/02 by Özgür AKGÖÇMEN against Turkey

The European Court of Human Rights (Fourth Section), sitting on 3 June 2008 as a Chamber composed of:

Nicolas Bratza, President , Giovanni Bonello, David Thór Björgvinsson, Ján Šikuta, Päivi Hirvelä, Ledi Bianku , Işıl Karakaş, judges , and Fatoş Aracı, Deputy Section Registrar ,

Having regard to the above application lodged on 7 November 2002,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together.

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The appli cant, Mr Özgür Akgöçmen, is a Turkish national who was born in 1954 and lives in Ankara . He was rep resented before the Court by Mr S . Cengiz, a lawyer practising in İzmir. The Turkish Government (“ the Government”) were represented by their Agent.

A. The circumstances of the case

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

The applicant was a notary in Erdemli, a district of Mersin, at the time of the events giving rise to the present application.

On 12 May 1999 the Erdemli Tax Office notified the Erdemli public prosecutor ’ s office that the applicant had failed to submit the stamp duty of 2, 000,000,000 Turkish liras [1] (TRL) acquired as a result of notary transactions for the period of 16 December 1998 and 31 December 1998.

On 13 May 1999 the Erdemli public prosecutor (“the prosecutor”) heard the applicant. The latter submitted, inter alia , that he was unable to pay the stamp duty of TRL 2, 000, 000,000 due to economic difficulties.

According to the investigation report drafted by the prosecutor on 14 May 1999 the applicant had failed to declare TRL 2, 000,000,000 and had only submitted TRL 225,129,000 to the tax office whereas in his books it was stated that he had paid TRL 2, 225,129,000.

On 22 July 1999 the Tarsus public prosecutor filed a bill of indictment with the Tarsus Assize Court against the applicant charging him with abuse of office under Article 240 of the Criminal Code. The prosecutor further requested that the case be examined by the Mersin Assize Court .

On 30 July 1999 the applicant paid the relevant amount to the Erdemli tax department.

On 9 September 1999 the Tarsus Assize Court referred the case to the Mersin Assize Court as requested.

On 26 October 1999 the Tarsus public prosecutor filed a further bill of indictment with the Tarsus Assize Court against the applicant, charging him with embezzlement under Article 202 of the Criminal Code as he had failed to pay value added tax of December 1998 and February 1999 to the relevant tax department. He further requested that the case be examined by the Mersin Assize Court .

On 23 November 1999 the Tarsus Assize Court referred the case to the Mersin Assize Court as requested.

On 5 October 1999 criminal proceedings against the applicant for abuse of office commenced before the Mersin Assize Court .

On 27 December 1999 the Mersin Assize Court joined the two cases against the applicant.

On 8 March 2000 the Mersin Assize Court heard the applicant and his legal representative. The court read out the charges against the applicant and informed him of his rights under Article 135 of the Code of Criminal Procedure . The applicant stated that he knew his legal rights. The applicant claimed, inter alia , that since he had incurred some expenses he did not have the money to pay the stamp duty on time and that as soon as his economic situation improved he had paid the necessary amount. The applicant ’ s representative submitted, inter alia , that the applicant had failed to pay the taxes in question on time due to economic problems but that he had had no intention of committing a crime.

On 19 June 2000 the testimony of a person who used to work with the applicant was admitted to the case file. On the same date the court noted that the accusations under the joined case file concerned different charges and that the applicant had not submitted his defence submissions on them. The court read out the charges against the applicant and informed him of his rights under Article 135 of the Code of Criminal Procedure. The applicant stated that he knew his legal rights. He stated, inter alia , that due to the economic cris i s and the costs he had had to pay for his office he had not been able to pay the value added tax on time and that he did not accept the accusation that he had embezzled this money.

On the same day, following a statement by the applicant and his representatives that they were not request ing an additional investigation ( tevsi tahkikat ) , the Mersin Assize Court ordered the public prosecutor to submit his opinion on the merits of the case by the next hearing.

On 11 July 2000 the public prosecutor requested an extension be granted for the submission of his opinion on the merits of the case. The first ‑ instance court granted the extension until 25 September 2000.

In a hearing o n 25 September 2000 the public prosecutor submitted his opinion on the merits of the case. He maintained that the applicant ’ s failure to pay the stamp duty of TRL 2,000,000,000 constituted embezzlement and requested the court to convict him under Art icle 202 of the Criminal Code.

The court heard the applicant ’ s representatives, namely Mr M.P. and Mr Ö.G., who disputed the prosecutor ’ s description of the acts as embezzlement. They both stated that the applicant was merely negligent, that he had had no intention to embezzle, and requested his acquittal.

In the meantime the applicant arrived at the hearing. The court read the prosecutor ’ s opinion to him and explained the applicable law.

The applicant stated that he did not accept the prosecutor ’ s description of the offence as embezzlement. He affirmed that the facts of the case were clear and that he had been unable to pay the stamp duty for economic reasons. He relied on his earlier submissions and requested to be acquitted.

On the same day, the Mersin Assize Court convicted the applicant of embezzlement under Article 202 of the Criminal Code in respect of the offence concerning the non-payment of the stamp duty. The applicant was sentenced to two years and six months ’ imprisonment and a fine of TRL 833,333,333 and was permanently debarred from employment in public service. The first-instance court acquitted the applicant of the offence concerning the non-payment of the value added tax, holding that the non ‑ payment of this tax did not constitute an offence under the Criminal Code.

The applicant appealed. In his grounds of appeal, which were both procedural and substantive, the applicant complained, inter alia , that he had been convicted of embezzlement, although no new indictment had been presented for these charges and no additional time had been given to him to prepare his defence. He submitted arguments as to why the facts of the case could not be construed as embezzlement within the meaning of Article 202 of the Criminal Court and claimed, inter alia , that to describe his act, which was the result of ignorance and inexperience, as embezzlement was a wrong interpretation and a disproportionate sentence.

In an additional appeal dated 19 February 2002, the applicant maintained, inter alia , that he had no intention of acquiring or using the money but that he had incurred a lot of expenses for his office and due to the economic crisis he had been unable to pay the stamp duty on time. He therefore considered that the facts of the case could not be construed as embezzlement within the meaning of Article 202 of the Criminal Court.

On 23 May 2002 the Court of Cassation held a hearing, heard the applicant ’ s representative ’ s arguments and upheld the decision of the first ‑ instance court. In its decision, the court held, inter alia , that the domestic court ’ s reasoning was sufficient, the charge under which the applicant was convicted had been correctly assessed, and his sentencing was in accordance with the law.

On 8 July 2002 the principal public prosecutor at the Court of Cassation dismissed the applicant ’ s request for a rectification of the decision of the Court of Cassation.

Between 1 November 2002 and 31 October 2003 the applicant served his prison sentence.

On 9 April 2003 the Mersin Assize Court dismissed the applicant ’ s request for a retrial.

B. Rele vant domestic law and practice

The relevant provisions of the Criminal Code at the material time are as follows:

Article 202

“Where a public officer embezzles or converts to his own use money or documents or bills valued as money or other property instructed to him or under his custody, control or responsibility by virtue of his office, he shall be punished by heavy imprisonment of six to twelve years...

...

If the amount is paid in full by the offender before the commencement of the trial, the punishment stated in the previous paragraphs shall be reduced by one-half; if the amount is paid in full before the judgment is given, the punishment shall be reduced by one-third.

...”

Article 240

“Whoever, being a public officer, abuses his office in any manner other than described in the Code, shall be punished by imprisonment for one year to three years, depending on the degree of the offence. Where matters of mitigating circumstances exist, the offender shall be punished by imprisonment of six months to one year and in both cases the offender shall be fined ...The offender shall be disqualified from holding public office temporarily or for life”.

COMPLAINT

The applicant complained that he had been convicted of an offence different from that of which he had been accused, in breach of his right to a fair trial.

THE LAW

1. The applicant complained about the legal re-characterisation of his offence just before his sentence was passed in breach of his right to a fair trial.

The Court considers that this complaint should be examined under Article 6 §§ 1 and 3 (a) and (b) of the Convention.

A. The parties ’ submissions

The Government stated that the applicant had failed to exhaust domestic remedies, as required by Article 35 § 1 of the Convention, as he had not raised the substance of his complaint before the domestic courts.

As to the merits, the Government maintained that the applicant was tried on two different charges including embezzlement, and that therefore there was no new accusation and no new facts added to the case. They further observed that the applicant and his lawyers had neither raised an objection when the public prosecutor submitted his opinion on the merits of the case nor requested additional time to prepare their defence. Finally, the Government pointed out that embezzlement was a special type of abuse of office.

The applicant maintained that he had exhausted domestic remedies. As to the merits, he submitted that he could not have known that he would be convicted of embezzlement and not abuse of office. He complained that the first-instance court had neither informed him of this possibility nor adjourned the proceedings so that he could duly prepare for his defence.

B. The Court ’ s assessment

The Court considers it unnecessary to determine whether the applicant has exhausted domestic remedies within the meaning of Article 35 § 1 of the Convention, since his complaint under this head is in any event inadmissible for the following reasons.

The Court reiterates that the provisions of paragraph 3 (a) of Article 6 point to the need for special attention to be paid to the notification of the “accusation” to the defendant. Particulars of the offence play a crucial role in the criminal process, in that it is from the moment of their service that the suspect is formally put on notice of the factual and legal basis of the charges against him (see, for example, Juha Nuutinen v. Finland , no. 45830/99, § 30 , 24 April 2007 ). Article 6 § 3 (a) of the Convention affords the defendant the right to be informed not only of the cause of the accusation, that is to say the acts he is alleged to have committed and on which the accusation is based, but also the legal characterisation given to those acts. In criminal matters the provision of full, detailed information concerning the charges against a defendant, and consequently the legal characterisation that the court might adopt in the matter, is an essential prerequisite for ensuring that the proceedings are fair. Furthermore, the Court has ruled that sub-paragraphs (a) and (b) of Article 6 § 3 are connected and that the right to be informed of the nature and the cause of the accusation must be considered in the light of the accused ’ s right to prepare his defence (see , among other authoritie s, Sipavičius v. Lithuania , no. 49093/99, § 28, 21 February 2002 ).

The Court further reiterates that when determining whether Article 6 of the Convention has been complied with, it must take into account the proceedings as a whole, including the appeal procedures. In previous cases the Court, when assessing the fairness of criminal proceedings as a whole, accepted that a re-qualification of an offence did not impair the rights of the defence when the accused, in review proceedings, had sufficient opportunity to defend him or herself (see, for example, Dallos v. Hungary , no. 29082/95, § 47-53, ECHR 2001-II, Sipavičius, cited above , § 30, 21 February 2002; and Balette v. Belgium (dec.), no. 48193/99, 24 June 2004).

In the present case, the applicant was initially charged with abuse of office under Article 240 of the Criminal Code for having failed to pay a certain amount of stamp duty that he was required to pay to the relevant tax department within the context of his office as a notary . However, i n his observations on the merits , the prosecutor re-qualified the offence as embezzlement and requested the applicant ’ s conviction under Article 202 of the Criminal Code. Taking into account that, under Turkish law, the offence of embezzlement is a special form of abuse of office, differing to some extent in its material constituent element, the Court has doubts as to whether the applicant could have anticipated the possibility that he could be convicted of embezzlement.

However, the Court observes that all the facts underlying the adjusted charge were known to the applicant long before. No new factual elements were introduced. It further observes that the applicant and his two legal representatives stated their position on the adjusted charge on the very day when it was introduced and, although they would have been free to do so, failed to request an adjournment of the proceedings in order to have more time to consider the issue (see Noe v. France (dec.), no. 10292/03, 7 November 2006, Bäckström and Andersson v. Sweden (dec.), no. 67930/01, 5 September 2006; and, by contrasts, Miraux v. France , no. 73529/01, § 34, 26 September 2006 ).

Moreover, the applicant appealed to the Court of Cassation, which reviewed the applicant ’ s case, both from a procedural and a substantive point of view, upholding the first-instance court ’ s judgment, after having heard the applicant ’ s representative at an oral hearing. The Court therefore considers that the applicant had the opportunity to advance his defence before the Court of Cassation in respect of the reformulated charge.

Assessing the fairness of the proceedings as a whole, the Court is therefore not persuaded that the applicant was not sufficiently informed of the nature and cause of the accusation against him for the purposes of Article 6 § 3 (a) of the Convention or that there was a violation of Article 6 § 3 (b) of the Convention or that he was deprived of a fair hearing within the meaning of Article 6 § 1 of the Convention. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention .

2. In his observations dated 19 May 2007 the applicant also raised a number of arguments under Article 6 § 1 of the Convention as regards the manner in which the domestic law had been applied to his case and of the outcome of the proceedings.

The Court notes that some of the applicant ’ s arguments under this head have already been declared inadmissible at an earlier stage (see Akgöçmen v. Turkey (dec.), no. 43840/02, 19 October 2006). As to the remaining complaints, the Court finds that they relate to events or decisions which intervened more than six months before being lodged with the Court on 19 May 2007, and it therefore rejects them in accordance with Article 35 §§ 1 and 4 of the Convention .

In view of the above, it is appropriate to discontinue the application of Article 29 § 3 of the Convention and to reject the application .

For these reasons, the Cour t unanimously

Declares inadmissible the remainder of the application.

Fatoş Arac ı Nicolas Bratza Deputy Registrar President

[1] Approximately 4,750 Euros (EUR) at the time of the events.