SECOND SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 48057/99 by Efrosini YORGIYADIS against Turkey

The European Court of Human Rights (Second Section), sitting on 28 January 2003 as a Chamber composed of

Mr J.-P. Costa , President , Mr A.B. Baka , Mr Gaukur Jörundsson , Mr R. Türmen , Mr K. Jungwiert , Mr V. Butkevych , Mrs W. Thomassen , judges , and Mr T.L. Early , Deputy Section Registrar ,

Having regard to the above application lodged with the European Court of Human Rights on 5 April 1999,

Having deliberated, decides as follows:

THE FACTS

The applicant, Efrosini Yorgiyadis , is a Turkish national of Greek origin, who was born in 1964 and lives in Istanbul. She is represented before the Court by Mr Cihan Eren and Ms Nilgün Kepoğlu , lawyers practising in Istanbul.

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

On 18 October 1982 the applicant and Semiramis Gradlekova , a Turkish citizen of Greek origin, petitioned the Åž iÅŸli Civil Court of General Jurisdiction ( Sulh Hukuk Mahkemesi ) and requested that they be given permission to conclude a contract of adoption ( evlatlık mukavelesi ) before the notary public. Following the court’s permission, the applicant and Semiramis Gradlekova signed the contract of adoption before the notary public in Bakırköy on 25 October 1982.

Semiramis Gradlekova died on 18 November 1982, leaving the applicant the only legal heir to her property.

On 17 May 1983 the Treasury ( Hazine ) brought an action before the Ş işli First Instance Court in Civil Matters ( Asliye Hukuk Mahkemesi ) requesting that the contract of adoption be declared null and void. According to the Treasury, the contract was made in the absence of a witness and, therefore, did not fulfil the necessary requirements of a valid contract of adoption. Furthermore, the fact that Mrs Gradlekova died only twenty-three days after the contract was made was a clear indication of the applicant’s bad faith. For these reasons, the Treasury requested that Mrs Gradlekova’s property be transferred to the State.

In the meantime, unknown persons who had alleged that Semiramis Gradlekova’s intention was to donate her property to the Turkish Army informed the authorities that the applicant and four other persons forged official documents in order to acquire her inheritance.

The Bakırköy Public Prosecutor opened a criminal investigation. On 3 August 1983 the public prosecutor filed an indictment with the Bakırköy Assize Court accusing the applicant and four other persons, including S.Y. and G.A., a clerk to a notary, of fraudulent misrepresentation ( yalan beyan ) and forgery ( evrakta sahtekarlık ).

On 10 October 1983 two professors and one associate professor specialising in handwriting analysis produced a report. The experts compared the signature of Semiramis Gradlekova on seven different official documents and found that her signature on the contract of adoption was authentic. The applicant submitted this report to the Åž iÅŸli First Instance Court in Civil Matters.

The Åž iÅŸli First Instance Court in Civil Matters requested the opinion of another group of experts. In a report dated 27 November 1985 the experts, two professors specialising in handwriting analysis and one forensic specialist, certified as correct the findings of the report of 10 October 1983.

On 17 December 1986 the Ş işli First Instance Court in Civil Matters rejected the Treasury’s allegation that the contract of adoption was null and void. The court held that the contract satisfied the necessary requirements of a valid contract, as confirmed by the experts’ findings on the authenticity of Semiramis Gradlekova’s signature.

The Treasury appealed. On 20 December 1987 the Court of Cassation held that the first instance court should have adjourned the examination of the case until a decision was taken by the Bakırköy Assize Court in the criminal proceedings. On 17 October 1988 the Court of Cassation rejected the applicant’s request for rectification of the judgment .

On 21 April 1989 the Åž iÅŸli First Instance Court in Civil Matters decided not to follow the decision of the Court of Cassation . In the opinion of the court, there was no need to adjourn the examination of the case pending the decision of the criminal court.

The Treasury lodged an appeal with the Joint Civil Chambers of the Court of Cassation ( Yargıtay Hukuk Genel Kurulu ), which quashed the decision of the Ş işli First Instance Court in Civil Matters on 21 February 1990. The case file was transferred to the Ş işli First Instance Court in Civil Matters.

At the request of the Bakırköy Assize Court, the Forensic Medicine Institute drew up a report on 4 February 1991. The report concluded that the signature of Semiramis Gradlekova , as appeared on the contract of adoption, was authentic.

In a further report dated 28 August 1991 the Forensic Medicine Institute noted that its examination of 4 February 1991 had been based on a comparison of the signature of Semiramis Gradlekova on the contract of adoption and her signature on documents submitted in furtherance of her request for permission to conclude a contract of adoption. However, the examination of other materials bearing the signature of Semiramis Gradlekova revealed that the signature, as it appeared on the contract of adoption, was not her signature.

On 13 May 1992 five experts from the Forensic Medicine Institute issued another report. According to the experts, the signature of Semiramis Gradlekova on the contract of adoption was not authentic.

The applicant sought the opinion of handwriting experts. On 20 May 1993 the experts, a graphologist and two professors, concluded their examination and drafted a report. According to the experts, the reports issued by the Forensic Medicine Institute experts on different dates were contradictory. In their opinion, the signature of Semiramis Gradlekova was genuine.

On 16 July 1993 the Bakırköy Assize Court requested the Forensic Medicine Institute to clarify whether or not the signature of Semiramis Gradlekova on the contract of adoption was authentic.

On 10 August 1993 seven experts of the Forensic Medicine Institute, after having considered the findings contained in the previous expert reports, concluded their examination and drafted a report. According to the experts, the signature of Semiramis Gradlekova on the contract of adoption was authentic. Five of the experts who signed this report had also signed the report of 13 May 1992.

On 6 September 1993 the Bakırköy Assize Court decided to discontinue the proceedings against the applicant and the other four accused on the ground that the offences of which they were charged had become time-barred, a period of ten years having lapsed since the date of the charges. The court further held that, having regard to the apparent inconsistency between the two reports issued by the experts of the Forensic Medicine Institute on 13 May 1992 and 10 August 1993, the Bakırköy Public Prosecutor should open criminal proceedings against the five experts who had signed both reports. It was decided to transfer the case file to the office of the Bakırköy Public Prosecutor.

The applicant lodged an appeal against the decision of the Bakırköy Assize Court. On 7 June 1994 the Court of Cassation rejected the applicant’s appeal.

On 15 December 1994 the Ş işli First Instance Court in Civil Matters rejected the Treasury’s allegation that the contract of adoption was null and void. The court held that the expert reports had established that the signature of Semiramis Gradlekova was genuine and that the Treasury had failed to substantiate the allegation of nullity of the contract.

The Treasury appealed. On 20 April 1995 the Court of Cassation quashed the decision of the Ş işli First Instance Court in Civil Matters. In the opinion of the Court of Cassation , the first instance court should have admitted the statements of witnesses S.Y. and G.A. as evidence in the civil proceedings. These witnesses in the earlier criminal proceedings had stated that the contract of adoption was drafted in the absence of Semiramis Gradlekova and in G.A.’s house, not in the office of the notary public and, being elderly, Semiramis Gradlekova had been unable to travel to the notary public’s office. The Court of Cassation further noted that in their report of 10 August 1993 the experts of the Forensic Medicine Institute had accepted that the signature of Semiramis Gradlekova on the contract of adoption was authentic. However, in their report of 13 May 1992 five of the same experts had concluded that the signature on the contract of adoption was not that of Semiramis Gradlekova . The experts failed to give any reasonable explanation in their report of 10 August 1993 as to why they had changed their previous opinion. Accordingly, the first instance court should consider the statements of the witnesses in the criminal proceedings as evidence and declare the contract of adoption null and void in the light of the findings of the expert report of 13 May 1992.

On 16 April 1996 the Fatih Criminal Court of First Instance ( Asliye Ceza Mahkemesi ) acquitted the five experts of the Forensic Medicine Institute. It found that there was no evidence on which to conclude that these experts had acted negligently in carrying out the handwriting examination.

On 18 April 1996 the Åž iÅŸli First Instance Court in Civil Matters decided not to follow the decision of the Court of Cassation . In the opinion of the court, it was established that the signature of Semiramis Gradlekova was authentic and there was no evidence to justify a finding that the contract in question was null and void. The court noted that S.Y. and G.A. did not appear before the criminal court as witnesses but were accused along with the applicant. Their testimonies before the criminal court were confined to their defence.

The Treasury lodged an appeal with the Joint Civil Chambers of the Court of Cassation ( Yargıtay Hukuk Genel Kurulu ), which quashed the decision of the Ş işli First Instance Court in Civil Matters on 12 March 1997. The case file was transferred to the Ş işli First Instance Court in Civil Matters.

On 9 December 1997 the Åž iÅŸli First Instance Court in Civil Matters decided to follow the decision of the Joint Civil Chambers of the Court of Cassation .

On 7 May 1998 the Court of Cassation upheld the decision of the Åž iÅŸli First Instance Court in Civil Matters.

On 15 November 1998 the Court of Cassation rejected the applicant’s request for rectification of the judgment .

COMPLAINTS

The applicant complains under Article 6 of the Convention about the length of the proceedings.

The applicant further complains under Article 6 of the Convention that she was deprived of her right to a fair hearing. She alleges that the national courts declared the contract of adoption null and void on account of the admission of the statements made by two of her co-accused in the criminal proceedings as evidence in the civil proceedings.

The applicant complains under Article 8 of the Convention that the decision of the domestic courts to declare the contract of adoption null and void constituted an interference with her right to respect for her private and family life.

The applicant complains under Article 14 of the Convention that she was subjected to discrimination on account of her Greek origin.

The applicant complains under Article 1 of Protocol No. 1 to the Convention of an infringement of her right to the peaceful enjoyment of her possessions.

THE LAW

1. The applicant complains under Article 6 of the Convention about the length of the proceedings.

The Court considers that it cannot, on the basis of the file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 48 § 2 (b) of the Rules of Procedure, to give notice of it to the respondent Government.

2. The applicant complains under Article 6 of the Convention that she was deprived of her right to a fair hearing. She alleges that the national courts declared the contract of adoption null and void on account of the admission of the statements made by two of her co-accused in the criminal proceedings as evidence in the civil proceedings.

The Court recalls its well-established case law that the admissibility of evidence is primarily a matter for regulation by national law (see, among many others, the Schenk v. Switzerland judgment of 12 July 1988, Series A no. 140, p. 29, § 46). As a general rule it is for the national courts to assess the evidence before them (see the Barberà , Messegué and Jabardo v. Spain judgment of 6 December 1988, Series A no. 146, p. 31, § 68).

The Court further recalls that the competence of witnesses is primarily governed by national law (see, among many others, the Lüdi v. Switzerland judgment of 15 June 1992, Series A no. 238, p. 20, § 43, and the Schuler-Zgraggen v. Switzerland judgment of 24 June 1993, Series A no. 263, p. 21, § 66). The Court’s task is to ascertain whether the proceedings in their entirety, including the way in which evidence was permitted, were “fair” within the meaning of Article 6 § 1.

The requirements inherent in the concept of “fair hearing” are not necessarily the same in cases concerning the determination of civil rights and obligations as they are in cases concerning the determination of a criminal charge. This is borne out by the absence of detailed provisions such as Article 6 §§ 2 and 3 of the Convention applying to cases of the former category. Thus, although these provisions have a certain relevance outside the strict confines of criminal law (see, mutatis mutandis , the Albert and Le Compte v. Belgium judgment of 10 February 1983, Series A no. 58, p. 20, § 39), the Contracting States have greater latitude when dealing with civil cases concerning civil rights and obligations than they have when dealing with criminal cases.

Nevertheless, certain principles concerning the notion of a “fair hearing” in cases concerning civil rights and obligations emerge from the Court’s case-law. Most significantly, it is clear that the requirement of “equality of arms”, in the sense of a “fair balance” between the parties, applies in principle to such cases as well as to criminal cases (see the Feldbrugge v. the Netherlands judgment of 26 May 1986, Series A no. 99, p. 17, § 44). It is left to the domestic courts to ensure in each individual case that the requirements of a “fair hearing” are met (see the Dombo Beheer B.V. v. The Netherlands , judgment of 27 October 1993, Series A no. 274, p. 19, § 33).

In the present case the Court notes that during the civil proceedings the domestic courts were asked to rule on the validity of the contract of adoption. The Court of Cassation on appeal quashed the decision given in the applicant’s favour by the first instance court on the ground that the latter should have admitted the statements made by two of the applicant’s co-accused in the course of the criminal proceedings. It further notes that the Court of Cassation did not request the first instance court to determine the validity of the contract on the basis of that evidence alone, but to have regard to it as one element of possible relevance to its overall assessment of the issue of validity. In the event the first instance court also had before it the findings of competing expert reports, some of which concluded that the signature was authentic whereas others found that the signature was not authentic. It is not for the Court to gainsay the decision reached by the domestic court on the basis of the evidence examined.

In the light of the foregoing, the Court concludes that there is nothing in the case file to indicate that the taking and the assessment of evidence was arbitrary or that the proceedings were otherwise unfair such as to raise an issue under Article 6 of the Convention.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

3. The applicant complains under Article 8 of the Convention that the decision of the domestic courts to declare the contract of adoption null and void constituted an interference with her right to respect for her private and family life. The applicant further complains under Article 1 of Protocol No. 1 to the Convention of an infringement of her right to the peaceful enjoyment of her possessions.

The Court observes that the applicant’s complaints under these heads are closely linked to her argument concerning the fairness of the civil proceedings. In the light of the conclusion reached concerning the fairness of the proceedings, the Court does not propose to give separate examination to these complaints.

4. Lastly, the applicant complains under Article 14 of the Convention that she was subjected to discrimination on account of her Greek origin.

In the light of the contents of the case-file the Court finds that the applicant’s complaint under this head does not disclose any appearance of a violation of Article 14 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaint concerning the length of the proceedings;

Declares the remainder of the application inadmissible.

T.L. Early J.-P Costa Deputy Registrar President