FOURTH SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 43923/98 by Ahmet TEZEL against Turkey

The European Court of Human Rights (Fourth Section), sitting on 6 March 2007 as a Chamber composed of:

Sir Nicolas Bratza , President , Mr J. Casadevall , Mr G. Bonello , Mr R. Türmen , Mr K. Traja , Mr S. Pavlovschi , Mr J. Šikuta , judges , and M rs F. Aracı , Deputy S ection Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 27 July 1998,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the partial decision of 30 January 2001,

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 applicant, Mr Ahmet Tezel, is a Turkish national who was born in 1962 and lives in Foça , Izmir . He was represented before the Court by Mr G. Dinç , a lawyer practising in Izmir . The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court.

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

The applicant is a dog trainer and owner of a dog farm.

On 28 April 1996 the applicant paid a visit to his friend, Mr Ü.Y. who was having dinner at the time with Miss S.Ö. and Mr A.K. The applicant joined them for dinner. Following the dinner, the applicant and Mr Ü.Y. went to the Klasik Bar about 11 p.m. where they met Miss F.G. and Mr N.G., her boyfriend. Miss S.Ö. and Mr A.K. joined them later. At about midnight Mr N.G. left the bar, saying that he was sick. Miss F.G. stayed at the bar for another half hour and then left to go home.

On 29 April 1996 Miss F.G. (hereafter referred to as the “complainant”) filed a complaint with a gendarme and stated that the applicant had raped her. She explained that, after leaving the bar the previous night, she started walking home. About fifteen minutes later, the applicant approached her in his car and offered her a lift. The complainant agreed and entered the car. However, the applicant did not stop and drove past N.G. ’ s house. Instead he took her to an inhabited area used as a rubbish tip. The complainant stated that she had tried to resist and scratched the left side of the applicant ’ s neck. However she could not stop the applicant and she was raped in the car.

The same morning, the complainant ’ s boyfriend Mr N.G. and Mr Ü.Y went to the applicant ’ s farm. They questioned him about the night before. The applicant re jected the complainant ’ s allegations but , when N.G. noticed the scratch marks on the applicant ’ s neck, the applicant agreed to go with them to the gendarme station.

After the applicant ’ s statement was taken by a gendarme, the complainant and the applicant were both sent to the Foça State Hospital for a medical examination. In the medical report, dated 29 April 1996, it was stated that the complainant had three red marks on her left wrist an d two red marks on her right wrist. She was transferred to Izmir Atatürk Hospital for a detailed gynaecological examination. In the report issued by the Izmir Atatürk Hospital , also dated 29 April 1996, it was indicated that there was evidence of forced penetration and traces of sperm in her vagina.

The applicant was also examined in the Foça State Hospital on 29 April 1996. According to the medical report, there were three scratch marks on the left side of his neck. In an additional report delivered by the Izmir Atatürk Hospital on 29 April 1996, it was indicated that these scratch marks might have been caused by a rough object or by the nails of a human or animal.

On 6 and 9 May 1996, respectively, statements were taken by public prosecutor from the applicant, complainant and from the witnesses of the complainant namely Miss S.Ö., Mr A.K., Mr Ü.Y. and the complainant ’ s boyfriend, N.G.

In his statement, the applicant denied the accusations and claimed that he had returned to his house immediately after leaving the bar.

Miss S.Ö., Mr A.K., Mr Ü.Y. stated that they were all living in the same house in Foça . On the night of 28 April 1996 they all went to the Klasik Bar. According to these witnesses, the applicant had left the bar twenty or thirty minutes after the complainant. They stated that at a bout 2.30 a.m. on 29 April 1996, N.G. came to their house and told them that the applicant had raped F.G. They immediately went to N.G. ’ s house and saw that the complainant was in tears. She told them that she had been raped by the applicant.

In his statement, Mr N.G., the complainant ’ s boyfriend, stated that he had left the bar about midnight as he felt sick and went home. He waited for the complainant at home. When she came home around 2 a.m., she was in a state of shock and she was crying. She told N.G that she had been raped by the applicant.

The complainant repeated the same statement she had given to the gendarme.

On 30 May 1996 the Karşıyaka Public Prosecutor filed an indictment with the Karşıyaka Assize Court and requested that the applicant be convicted and sentenced pursuant to Articles 416 and 429 of the Criminal Code for abduction and rape.

On 3 June 1996 the proceedings before the Karşıyaka Assize Court resumed. In the first hearing, the court decided to issue rogatory letters to the Foça Criminal Court to take the testimonies of Miss S.Ö., Mr A.K. and Mr Ü.Y.

On 25 June 1996 the Foça Criminal Court held a hearing and heard the testimonies of the three witnesses. In the hearing, the witnesses repeated their previous statements taken by the public prosecutor. The applicant and his lawyer were also present and they put questions to the witnesses. According to the minutes of this hearing, the applicant ’ s lawyer asked Mr A.K. whether the applicant had asked him for road directions after leaving the bar. A.K. responded that he did not remember the applicant asking him directions and he added that, as the applicant knew the region very well, he did not need to ask for directions.

On 3 July 1996, in one of the hearings held before the Karşıyaka Assize Court , the applicant was asked as to why the complainant would lie about being raped. He responded that he did not know. During the same hearing, the applicant ’ s lawyer pointed out that at the time of the events the applicant ’ s wife was in the United States to give birth. He argued that the applicant had no reason to take the complaina nt to a rubbish tip as he was staying alone in his house.

On 17 September 1996 the Karşıyaka Assize Court heard the testimonies of two defence witnesses. These witnesses stated that they did not know the complainant very well but they had heard that she was sexually active.

The applicant testified before the Karşıyaka Assize Court that he had returned to his house immediately after leaving the bar. He also stated that Mr A.K., who left the bar at the same time as him, had given him directions as to how to get home. The applicant also maintained that the scratch marks on his neck were caused by one of his dogs. He maintained that these scratch marks were clearly visible to the complainant since she had been sitting to his left in the bar.

The public prosecutor pleaded before the court that the complainant had consensual intercourse with the applicant and that she had made a false accusation against him since she was afraid of her boyfriend ’ s reaction. The prosecutor further stated that the applicant was concealing that he had had consensual intercourse with the applicant as he was married. He therefore requested the court to acquit the applicant since no crime had been committed.

On 26 October 1996 the applicant was found guilty as charged and sentenced to ten years ’ imprisonment. The court found that the complainant was credible and held that her statements were supported by witness testimonies and medical reports. In convicting the applicant, the court relied on the statements of Miss S.Ö., Mr A.K. and Mr Ü.Y., medical reports and the scratch marks on the left side of the applicant ’ s neck. The court further held that it was unnecessary to make a DNA analysis of the sperm found in the complainant ’ s vagina.

Both the public prosecutor and the applicant appealed on the ground that there was insufficient evidence to convict the applicant, especially having regard to the fact that the complainant was sexually experienced.

On 6 February 1997 the Court of Cassation quashed the judgment on procedural grounds relating to the calculation of the sentence. The case was remitted to the Karşıyaka Assize Court which, on 13 October 1997, again found him guilty as charged, but reduced the original sentence to eight years and four months ’ imprisonment.

The public prosecutor and the applicant appealed relying on the same grounds.

On 18 February 1998 the Court of Cassation upheld the lower court ’ s judgment and reasoning. The Chief Public Prosecutor at the Court of Cassation filed an objection against this decision.

On 28 April 1998 the Joint Criminal Chambers of the Court of Cassation rejected the public prosecutor ’ s objection. It held that the judgment of the first instance court and the decision of the Court of Cassation were lawful and well-founded. It found that the complainant ’ s accusations were supported by medical evidence and the testimonies of the witnesses. The court further pointed out the fact that there were scratches on the applicant ’ s neck and that the applicant had given contradictory statements before the trial court. In this respect, they referred to the applicant ’ s statement in which he had alleged that , after leaving the bar, he had asked Mr A.K. for road directions. This statement was not accepted by Mr A.K. who had responded that he did not remember the applicant asking him directions.

In conclusion , the Joint Criminal Chambers of the Court of Cassation found it established that the applicant had abducted and raped the complainant.

COMPLAINTS

1. The applicant complained under Article 6 § 1 of the Convention that he had been denied a fair trial. In this respect, the applicant maintained in the first place that he had been convicted against the weight of the evidence and that the authorities should have ordered the taking of DNA samples from his alleged victim and ordered an analysis of any matter found under the complainant ’ s nails. The applicant also submitted that the court had not conducted an adequate investigation into the circumstances of his case.

2. The applicant alleged under Article 6 § 2 of the Convention that the domestic courts had disregarded his right to the presumption of innocence.

3. Finally invoking Article 6 § 3 (d) of the Convention, the applicant stated that the trial court had refused to hear his witnesses. He also complained under the same provision that the witnesses of the complainant were heard by the Foça Criminal Court and not by the Karşıyaka Assize Court, before which the criminal proceed ings against him were pending.

THE LAW

1. Under Article 6 § 1 of the Convention , the applicant alleged that he did not have a fair hearing before the national court. In support of his complaint, he maintained that the domestic court had failed in the evaluation of evidence. He stated that he had been convicted against the weight of the evidence and that the authorities should have ordered the taking of DNA samples from his alleged victim and ordered an analysis of any matter found under the complainant ’ s nails. The applicant also submitted that the court had not conducted an adequate investigation into the circumstances of his case.

The Government submitted that the court decision at issue had been lawful and well-founded.

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 th e evidence was taken, were fair ( see Schenk v. Switzerland , judgment of 12 July 1988, Series A no. 140, p. 29, § 46 , and García Ruiz v. Spain [GC], no. 30544/96, § 28 , ECHR 1999 ‑ I ) .

In the present case, the Court observes that the applicant ’ s case was examined twice by the Assize Court and three times by the Court of Cassation. The judgments of the Karşıyaka Assize Court and the decisions of the Court of Cassation were founded on the relevant provisions of domestic law and the particular circumstances of the case. The Court notes that the conviction of the applicant was not solely based on the complainant ’ s accusations. The decisions relied on witness statements and medical reports. Furthermore, referring to the applicant ’ s contradictory statements during the trial, the domestic courts did not find that the applicant was credible. The Court finds no indication that , in giving weight to the complainant ’ s statements which were supported by witness statements and medical reports, the national courts acted arbitrarily or otherwise exceeded their margin of appreciation in this respect. Moreover, the applicant was represented both at his trial and on appeal by his lawyer and had the opportunity of challenging the allegations against him . The fact that his attempts were unsuccessful is not, in itself, indicative of any alleged unfairness .

For the above reasons the Court finds that the applicant ’ s complaints disclose no appearance of a violation of Article 6 § 1 of the Convention. It follows therefore that this part of the application is inadmissible as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

2. Invoking Article 6 § 2 of the Convention, the applicant claimed that he was a victim of a failure to apply the presumption of innocence, stating that he had been convicted solely on the basis of the complainant ’ s statements. The applicant also referred to part of the reasoning in the judgment of the Karşıyaka Assize Court , which stated that the complainant had no reas on to bring false accusations.

The Court recalls that the presumption of innocence will be violated if, without the accused ’ s having previously been proved guilty according to law, and notably without his having had the opportunity of exercising his rights of defence, a judicial decision concerning him reflects an opinion that he is guilty (see Barberà , Messegué and Jabardo v. Spain , judgment of 6 December 1988, Series A no. 146 , § 91). Furthermore, Article 6 § 2 requires, inter alia , that when carrying out their duties, the members of a court should not start with a preconceived idea that the accused has committed the offence charged; the burden of proof is on the prosecution and any doubt should benefit the accused. Thus the presumption of innocence will be breached when the burden of proof is shifted from the prosecution to the defence (see John Murray v. the United Kingdom , judgment of 8 February 1996, Reports of Judgments and Decisions 1996 ‑ I, p. 52, § 54).

In the present case, the Court has no reason to conclude that the domestic courts had taken decisions or actions reflecting a preconceived idea that the applicant was guilty. It is true that the Assize Court judges expressed their doubts as to why the complainant would lie about being raped. It is not however apparent that this comment, expressed in the context of their ongoing assessment of the credibility and reliability of the evidence before them, discloses any prior improper prejudgment of the issues. Furthermore, it is clear from the case file that the burden to establish that the applicant had committed the crime in question la y on the prosecution and the complainant during the domestic procedure. The applicant was not left without any means of defence; he was legally represented throughout the proceedings and had the chance of submitting his counter arguments against the accusations.

Having regard to the above findings, the proceedings before the domestic courts did not offend the presumption of innocence guaranteed to the applicant under Article 6 § 2 of the Convention.

It follows that this complaint should be rejected as being manifestly ill-founded, within the meaning of Article 35 §§ 3 and 4 of the Convention.

3. The applicant complained that the statements of Miss S.Ö . , Mr Ü.Y . and Mr A.K . , who were the witnesses of the complainant, had been taken by the Foça Criminal Court and not by the Karşıyaka Assize Court . He further stated that his requests to call witnesses were rejected by the domestic courts.

As regards the first part of the applicant ’ s complaint, the Court observes that on 3 June 1996 the Karşıyaka Assize Court issued rogatory letters, requesting the Foça Criminal Court to take the statements of three witnesses, namely Miss S.Ö . , Mr Ü.Y. and Mr A.K. The applicant was informed about the date and hour of this hearing and he attended the hearing with his lawyer. During the hearing, his lawyer was given the opportunity to put questions to the witnesses. The Court notes at this point that the applicant was given a proper and adequate opportunity to challenge and question the witnesses against him. The fact that the testimonies of these witnesses were not heard before the trial court does n ot disclose a breach of Article 6 § 3 (d) of the Convention.

As regards the applicant ’ s complaint concerning the alleged refusal of the domestic authorities to hear the applicant ’ s witnesses, the Court recalls that Article 6 § 3 (d) leaves it to the domestic courts to assess whether it is appropriate to call witnesses; it does not require the attendance and examination of every witness on the accused ’ s behalf (see Perna v. Italy [GC], no. 48898/99, § 29 , ECHR 2003 ‑ V ; Bricmont v. Belgium , judgment of 7 July 1989, Series A no. 158, p.31, § 89; and Vidal v. Belgium , judgment of 22 April 1992, Series A no. 235 ‑ B, pp. 32 ‑ 33, § 33).

In the instant case, the Court observes that , during its hearing held on 17 September 1996, the Karşıyaka Assize Court heard two defence witnesses who stated that the complainant had an active sex life and supported the applicant ’ s contention that the complainant was making false accusations. As a result, the applicant was able to put forward his version of events. The Court is not persuaded that the refusal of the domestic courts to hear further witnesses restricted the rights of the defence to an extent incompatible with the guarantees of Article 6 § 3 (d).

It follows that this part of the application must also be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the remainder of the application inadmissible.

F atoş Aracı Nicolas Bratza Deputy Registrar President