SECOND SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 39465/98 by Adem PARSIL against Turkey

The European Court of Human Rights ( Second Section) , sitting on 18 January 2001 as a Chamber composed of

Mr C.L. Rozakis , President , Mr A.B. Baka , Mr G. Bonello , Mrs V. Strážnická , Mr P. Lorenzen , Mr M. Fischbach , Mr A. Kovler , judges , and Mr E. Fribergh , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 28 August 1997 and registered on 21 January 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 1963 and living in KahramanmaraÅŸ (Turkey). He is represented before the Court by Mr M.A. Erol , a lawyer practising in Ä°stanbul (Turkey).

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

The applicant, who was a civil servant at the time of the events, was appointed to Ölüdeniz Natural Park in 1990 as a guardian in charge of selling entrance tickets to the park. On 29 July 1991 the applicant was detained for selling fraudulently issued tickets and debiting money to his account. In his police statement dated 29 July 1991 and his statement before the public prosecutor on 30 July 1991 the applicant confessed that he had been involved in selling forged tickets together with two other persons. On 30 July 1991 he was brought before the Fethiye Magistrate’s Court in Criminal Matters and was placed in detention on remand.

On 20 August 1991 the public prosecutor filed an indictment with the Fethiye Assize Court and charged the applicant with embezzlement under Article 202 of the Criminal Code. The hearing before the assize court started on 18 September 1991. Subsequently, the public prosecutor maintained that as the applicant’s acts might constitute a breach of Article 342 of the Criminal Code that regulates forgery, a permission to prosecute was needed from the local authority pursuant to the Act on the Procedure of the Prosecution of Civil Servants. Accordingly, on 30 December 1991 the court transferred the case file to the Fethiye District Council for investigation and ordered the suspension of the proceedings until the decision of the administrative council. The same day the court further decided that the applicant be released from detention.

On 16 December 1992 the Fethiye District Governor, taking into account the applicant’s confessions before the police and the public prosecutor, decided that the applicant could be tried before the Fethiye Assize Court on account of the charges against him. On 18 March 1993 the Executive Committee of the Muğla Provincial Assembly upheld the decision of the district council and therefore on 22 May 1993 the case file was remitted to the Fethiye Assize Court.

On 22 December 1993 the court found the applicant guilty of forgery under Article 342 of the Criminal Code and sentenced him to one year 11 months and 10 days’ imprisonment. On 6 December 1994 the Court of Cassation quashed the decision of the first instance court on technical grounds. On 8 March 1995 the Fethiye Assize Court amended the procedural errors in its former judgment and delivered the same sentence against the applicant.

The applicant appealed. On 11 December 1995 the Court of Cassation, referring to the opinion of the public prosecutor dated 20 November 1995 which was not communicated to the applicant, decided that the first instance court had failed to apply the legal provisions relevant to the crime in question. Consequently, it quashed the judgment of the Fethiye Assize Court and stated that the applicant’s acts, which amounted to embezzlement under Turkish law, should have been examined under Article 202 of the Criminal Code.

Accordingly, the case was remitted to the Assize Court once again. In his defence submissions the applicant denied that his acts constituted a breach of Article 202 of the Criminal Code and requested the Court to maintain its judgment of 8 March 1995.

On 13 March 1996 the Fethiye Assize Court found the applicant guilty of embezzlement under Article 202 of the Criminal Code. It sentenced the applicant to 7 years 9 months and 10 days’ imprisonment and a fine of 33,333,333 Turkish Liras. The applicant was also debarred from civil service.

On 6 March 1997 the Court of Cassation upheld the judgment of the Fethiye Assize Court.

COMPLAINTS

1. The applicant submits under Article 6 of the Convention that during the proceedings before the Court of Cassation, the opinion of the public prosecutor dated 20 November 1995 was not communicated to him and therefore he did not have the opportunity to comment on this opinion, which was unfavourable to his case. In this respect, he alleges a breach of his defence rights, inter alia , the principle of equality of arms which is guaranteed by the Convention.

2. The applicant complains that the length of his detention on remand exceeded the reasonable time requirement in Article 5 of the Convention.

3. The applicant further complains under Article 6 of the Convention that the criminal proceedings brought against him were not concluded within a reasonable time as required by the Convention.

THE LAW

1. The applicant maintains that in so far as the opinion of the public prosecutor attached to the Court of Cassation was not communicated to him, the principle of equality of arms was breached contrary to Article 6 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 § 3 (b) of its Rules of Procedure, to give notice of this part of the application to the respondent Government.

2. The Court has examined the remainder of the applicant’s complaints and has noted that the applicant has been informed of the possible obstacles to their admissibility. In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that these parts of the application must be rejected, in accordance with Article 35 § 4 of the Convention.

For these reasons, the Court [unanimously] [by a majority]

Decides to adjourn the examination of the applicant’s complaint under Article 6 of the Convention about the fairness of the criminal proceedings against him;

Declares inadmissible the remainder of the application.

Erik Fribergh Christos Rozakis              Registrar President