FIRST SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 43923/98 by Ahmet TEZEL against Turkey

The European Court of Human Rights ( First Section) , sitting on 30 January 2001 as a Chamber composed of

Mrs E. Palm , President , Mrs W. Thomassen , Mr Gaukur Jörundsson , Mr R. Türmen , Mr C. Bîrsan , Mr J. Casadevall , Mr R. Maruste , judges , and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 27 July 1998 and registered on 14 October 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 deliberated, decides as follows:

THE FACTS

The applicant is a Turkish national, born in 1962 and living in Foça , İzmir . He is represented before the Court by Mr Güney Dinç , a lawyer practising in İzmir .

The facts of the case, as submitted by the applicant, 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 Ferahnaz Günday and her boyfriend N.G. both of whom were previously unknown to the applicant. Miss S.Ö. and Mr A.K. joined them later.

On 29 April 1996 Miss Ferahnaz Günday complained to the authorities that the applicant had raped her.

Statements were taken by police officers from the applicant, the complainant, Miss S.Ö., Mr A.K, Mr Ü.Y. and the complainant’s boyfriend, N.G. The complainant lived in the same apartment as N.G. The other three witnesses lived in the same house. The complainant submitted in the course of the preliminary investigation two medical reports indicating that she had red marks on her left and right wrists, that there was evidence of forced penetration and that there were traces of sperm in her vagina. A DNA test was not conducted to clarify whether or not the sperm in the complainant’s vagina matched that of the applicant’s. The Foça Public Prosecutor took statements from the applicant, the complainant and the above-mentioned witnesses.

On 25 October 1996 the applicant was formally arrested. He was tried before Karşıyaka Assize Court on charges of kidnap and rape.

The applicant argued at his trial that he returned to his house immediately after leaving the bar. He further claimed that relations between the complainant and her boyfriend in the bar were tense. He also stated that Mr A.K., who left the bar at the same time as him, gave him directions as to how to get home. Mr A.K. denied he gave the applicant directions and stated that he only talked to the applicant about his job. N.G. testified that the complainant returned to their house at 2.30 a.m. and told him that she had been raped by the applicant. Mr A.K. and Mr Ü.Y. told the court that the applicant left the bar thirty minutes after the complainant. Miss S.Ö. stated that the applicant left the bar fifteen or twenty minutes after the complainant. The public prosecutor pleaded before the court that the complainant had consensual intercourse with the applicant and that the complainant had make a false accusation against the applicant since she was afraid of her boyfriend’s reaction. He 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. In convicting the applicant the court relied on the above-mentioned statements, medical reports as well on evidence of scratch marks on the left side of the applicant’s neck. The applicant maintained before the public prosecutor and the Karşıyaka Assize Court that the scratch marks were caused by one of his dogs. The applicant further maintained that the scratch marks were clearly visible to the complainant since she had been sitting to his left in the bar. The court had before it a medical report dated 29 April 1996 in which it was stated that the scratch marks on the applicant’s neck might have been caused by a rough object or by a person’s or animal’s nail.

Both the public prosecutor attached to the Karşıyaka Assize Court 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. The applicant further contended that the authorities had failed to carry out a DNA test.

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 28 April 1998 the Court of Cassation upheld the lower court’s judgment and reasoning.

COMPLAINTS

1. The applicant complains under Article 6 of the Convention that he was denied a fair trial. The applicant maintains that he was 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 submits that the court did not conduct an adequate investigation into the circumstances of his case.

2. The applicant further maintains that he was unlawfully deprived of his liberty following his conviction, in breach of Article 5 of the Convention.

THE LAW

1. The applicant contends that he was denied a fair hearing in breach of Article 6 of the Convention, which provides as relevant:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”

The applicant submits that he was convicted against the weight of the evidence and that 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 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 § 3 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

2. The applicant maintains that he was unlawfully deprived of his liberty following his conviction. He invokes Article 5 of the Convention, which provides as relevant:

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a) the lawful detention of a person after conviction by a competent court;(...)”

The Court does not accept the applicant’s submission. It observes that the applicant was detained following conviction by a competent court and in application of the sentencing options available to it under domestic law; in other words, his detention falls within the scope of Article 5 § 1 (a) of the Convention. Moreover, it cannot be said that the applicant’s detention is not in conformity with the purposes of the deprivation of liberty permitted by Article 5 § 1 (a), so as to be arbitrary (see the Weeks v. the United Kingdom judgment of 2 March 1987, Series A no. 114, p. 23, § 42).

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

For these reasons, the Court by a majority

Decides to adjourn the examination of the applicant’s complaint concerned the alleged unfairness of his trial;

Declares inadmissible the remainder of the application.

Michael O’Boyle Elisabeth Palm Registrar President