THIRD SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 34400/02 by Volkan ÅžAHÄ°N against Turkey

The European Court of Human Rights (Third Section), sitting on 6 May 2004 as a Chamber composed of:

Mr G. Ress , President , Mr I. Cabral Barreto , Mr L. Caflisch , Mr P. Kūris , Mr R. Türmen , Mr B. Zupančič , Mrs M. Tsatsa-Nikolovska, judges ,

and Mr V. Berger , Section Registrar ,

Having regard to the above application lodged on 6 August 2002,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Volkan Åžahin, is a Turkish national, who was born in 1965 and lives in Antalya. He is represented before the Court by Mr A. AkyiÄŸit, a lawyer practising in Ä°stanbul.

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

The applicant owns a furniture store. On an unspecified date he sold armchairs to H.I and took a bond of 15,000,000 Turkish Liras from him in return.

The applicant endorsed the bond and gave it to S.K. in return for some shopping. On an unspecified date S.K. deposited the bond to the bank for collection.

On 22 March 1993 the bank sent a written notice to H.I. as the debtor of the bond and requested him to pay the sum that was written on the bond.

On 23 March 1993 H.I. lodged a criminal complaint with the public prosecutor against the applicant and S.K. He alleged that he was not the debtor of the bond, and denied the signature. He further accused the applicant and S.K. for drawing up a forged bond.

On 21 April 1995 the Ankara Public Prosecutor's Office filed an indictment with the Ankara Assize Court and requested that the applicant be punished in accordance with Article 342 § 1 of the Criminal Code for drawing and using a forged bond.

On 22 June 1998 the Ankara Assize Court acquitted the applicant on the grounds that there was insufficient evidence to convict him.

On 16 September 1998 the public prosecutor appealed against the decision. The copy of the public prosecutor's petition of appeal was not served on the applicant.

On 11 November 1999 the Court of Cassation quashed the decision and referred the case to the Assize Court.

The applicant found out that the decision was appealed and had been quashed by the Court of Cassation when the new date of hearing was served on him.

On 11 April 2000 the Ankara Assize Court convicted the applicant for the offence as charged and sentenced him to one year and eight months' imprisonment.

On 13 February 2002 the Court of Cassation upheld the Assize Court's decision.

COMPLAINTS

The applicant complains under Article 5 of the Convention that because the decision against him was not compatible with the law, he is deprived of his liberty contrary to the provisions laid down by this Article.

He further complains under Article 6 § 1 of the Convention that the criminal proceedings against him lasted for nine years which violated the reasonable time requirement set out by the Convention.

The applicant alleges under Article 6 § 3 (b) of the Convention that the opinion of the Principal Public Prosecutor to the Court of Cassation was not served on him, thus deprived him of the opportunity to put forward his counter-arguments. He further alleges under the same heading that there was no detailed reasoning in the Court of Cassation's decision.

He maintains under Article 7 of the Convention that he was convicted despite the fact that evidence against him was insufficient.

He finally complains under Article 13 of the Convention that there are no available domestic remedies concerning the violation of the reasonable time requirement.

THE LAW

1. The applicant complains under Article 5 of the Convention that the deprivation of his right to liberty is contrary to the provision laid down by this Article.

The Court notes that the applicant is detained following a conviction by a competent court, and thus his detention will fall within the scope of Article 5 § 1 (a) of the Convention. Moreover, it cannot be said that the applicant's detention will not be compatible with the purposes of the deprivation of liberty permitted by Article 5 § 1 (a), so as to be arbitrary (see Tezel v. Turkey (dec.), no. 43923/98, 30 January 2001, and Ükünc and Günes v. Turkey (dec.), no. 42775/98, 5 December 2000).

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

2. The applicant alleges that the length of the criminal proceedings brought against him contravened the “reasonable time” requirement under Article 6 § 1 of the Convention.

The Court considers that it cannot, on the basis of the case file , determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this complaint to the respondent Government.

3. The applicant complains under Article 6 § 3 (b) of the Convention that no copy of the Principal Public Prosecutor's written submission to the Court of Cassation was transmitted to him and thus he was denied the right to respond to the same authority. He further complains under the same heading about the absence of reasoning in the Court of Cassation decision.

a) With regard to the complaint that the written submission of the Principal Public Prosecutor to the Court of Cassation was never communicated to the applicant, thus depriving him of the opportunity to put forward his response, the Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

b) Concerning the applicant's complaint that the decision of the Court of Cassation lacked detailed reasoning, the Court reiterates that insofar as appeal instances are concerned, Article 6 of the Convention does not require that a court, when rejecting an appeal by reference to the reasoning given by a lower court, accompanies its decision with detailed reasons ( see Kabasakal and Atar v. Turkey (dec.), nos. 70084/01 and 70085/01, 1 July 2003).

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

4. The applicant further complains under Article 7 of the Convention that there was insufficient evidence to convict him.

The Court considers that even though the applicant invokes Article 7 of the Convention, considering the substance of this complaint it would be appropriate to examine it under Article 6 § 1 of the Convention.

The Court recalls that it is not competent to examine the outcome of the proceedings unless there is arbitrariness. In this connection, the Court finds no basis on which to conclude that the domestic courts, when establishing the facts and interpreting the law, acted in an arbitrary or unreasonable manner.

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

5. The applicant finally alleges that he had had no effective remedy to which allowed him to raise the issue of the excessive length of the criminal proceedings against him before a national authority. He alleges a violation of Article 13 of the Convention.

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part to the application to the respondent Government.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant's complaints concerning the length of the criminal proceedings, the absence of an effective remedy in relation to this complaint and the non-communication of the opinion of the Principal Public Prosecutor to the applicant;

Declares the remainder of the application inadmissible.

Vincent Berger Georg R ess Registrar President