SECOND SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 28002/95

by T.T.

against Turkey

The European Court of Human Rights ( Second Section) sitting on 22 June 1999 as a Chamber composed of

Mr C. Rozakis , President ,

Mr M. Fischbach ,

Mr G. Bonello ,

Mr R. Türmen ,

Mrs V. Strážnická ,

Mr P. Lorenzen ,

Mr A.B. Baka , Judges ,

with Mr E. Fribergh, Section Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 30 March 1995 by T.T. against Turkey and registered on 24 July 1995 under file no. 28002/95;

Having regard to the report provided for in Rule 49 of the Rules of Court;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Turkish citizen, born in 1945 in Istanbul. At the time of the facts, the applicant was an officer with the rank of captain.

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

In late 1979 investigations were initiated against a number of persons including the applicant, who was the District Gendarmerie Commander of Çorlu , concerning various smuggling incidents in this region.

In an indictment dated 22 December 1980, the Kırklareli Public Prosecutor's Office charged only the applicant, under Article 240 of the Turkish Criminal Code, with  abuse of office by assisting and protecting smugglers.

On 23 February 1982 the Tekirdağ Assize Court convicted the applicant  for abuse of office and sentenced him to one year and eight months' imprisonment and to a heavy fine.

The applicant appealed. On 30 June 1982 the Court of Cassation quashed the judgement delivered by the TekirdaÄŸ Assize Court, indicating that the classification of the offence was incorrect and that the investigation was incomplete. According to the Court of Cassation , the applicant ought to have been tried for collective smuggling.

The Tekirdağ Assize Court joined the applicant’s case with another case of collective smuggling initiated against 13 co-accused. The Court, inter alia , took oral evidence from various witnesses, consulted experts and examined extracts from customs registries and customs service reports.

On 12 December 1990 the Tekirdağ Assize Court convicted the applicant and the other co-accused for collective smuggling and sentenced the applicant to one year and eight months' imprisonment. The Court found that the applicant and the other accused  had arranged the entry into Turkey of a truck loaded with smuggled goods.

On 15 April 1992 the Court of Cassation upheld the decision of the Tekirdağ Assize Court. It noted that the Assize Court had examined  the charges as well as the defence, evaluated all the evidence submitted to it and delivered an impartial judgment.

On 23 September 1992 the Head Office of the Public Prosecutor at the Court of Cassation rejected the applicant's petition for rectification of the Court of Cassation’s judgment dated 15 April 1992.

On 5 November 1992 the TekirdaÄŸ Assize Court admitted the applicant's request  for the reopening of the trial. Accordingly, the court initiated new proceedings. On 16 September 1993 the TekirdaÄŸ Assize Court convicted the applicant confirming its former decision dated 12 December 1990. The Assize Court considered that the new elements submitted by the applicant could not have any effect on the reasoning of the judgment of 12 December 1990.              The applicant appealed. On 5 October 1994 the Court of Cassation upheld the decision of the TekirdaÄŸ Assize Court dated 16 September 1993.

On 7 December 1994 the Head Office of the Public Prosecutor at the Court of Cassation rejected the applicant's petition for rectification of the Court of Cassation’s decision.

On 15 February 1995 the TekirdaÄŸ Assize Court rejected the applicant's second petition for the reopening of his trial.

COMPLAINTS

1. The applicant complains about the length of the criminal proceedings against him. He invokes in this regard Article 6 of the Convention.

2. The applicant complains that his right to a fair trial under Article 6 of the Convention has not been respected, principally, in that the criminal court weighed doubtful witness testimonies against official documents and that the Court of Cassation which upheld the judgments of the criminal court did not give sufficient reasons for its decision.

3. The applicant also complains that the court which rejected his petition for a renewal of trial was not impartial and invokes Article 6 of the Convention.

4. The applicant complains of a violation of Article 4 of Protocol No. 7 in that he was tried again for the same offence although, according to him, he had been acquitted by various other decisions in the past.

THE LAW

1. The applicant complains that the criminal proceedings brought against him were not concluded within a reasonable time as required by Article 6 § 1 of the Convention.

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 this complaint to the respondent Government.

2. The applicant complaints that he did not have a fair trial as guaranteed by Article 6 § 1 of the Convention. He alleges in this respect that the criminal court weighed doubtful witness testimonies against official documents.

However, the Court recalls that under Article 19 of the Convention its task is to ensure observance of the engagements undertaken by the High Contracting Parties in the Convention. The Court is not competent to examine applications concerning errors of law or fact allegedly committed by the competent national authorities, which are competent, in the first place, to interpret and apply domestic law. The Court refers on this point to the established case-law (cf. Eur. Court HR, Garcia Ruiz v. Spain, judgment of 21 January 1999, § 28 ; Schenk v. Switzerland judgment of 12 July 1988, Series A no. 140, p. 29, § 45).

In the present case, the Court notes that the applicant's complaints concern the national courts' evaluation of the facts and evidence. The Court notes that the national courts took oral evidence from various witnesses, consulted  experts and examined extracts from customs registries and customs service reports. They held that there was sufficient evidence to establish that the applicant and his co-accused had arranged the entry into the country of a truck loaded with smuggled goods. The Court finds no element which would allow it to conclude that the national courts established the facts in an arbitrary or unreasonable manner.

As to the applicant's complaint under Article 6 § 1 of the Convention that the Court of Cassation upheld the Assize Court's decisions without sufficiently setting out the reasons therefor, the Court accepts that, under specific circumstances, the absence of reasons in a court decision might raise an issue of procedural fairness, which is guaranteed by Article 6 § 1 of the Convention. However, while Article 6 § 1 obliges the courts to give reasons for their judgments , it cannot be understood as requiring a detailed answer to every argument (cf. Eur. Court H.R., Hiro Balani v. Spain judgment of 9 December 1994, Series A no. 303, p. 29-30, § 27; Garcia Ruiz v. Spain, op. cit., § 26).

In the present case, the Court notes that the Court of Cassation , in its decision of 15 April 1992, held that the Assize Court had examined  the charges as well as the defence, evaluated all the evidence submitted to it and delivered an impartial judgment. In its decision of 5 October 1994, the Court of Cassation upheld the reasoning of the Tekirdag Assize Court which had established that the new elements submitted by the applicant could not have any effect on the applicant’s conviction. In these circumstances the Court finds that the Court of Cassation accepted the reasons given by the first instance for rejecting the applicant’s claims.

Consequently, the Court considers that there is no appearance of a violation of Article 6 § 1 of the Convention. It follows that these complaints are manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

3. As to the applicant's complaint about the Tekirdağ Assize Court which rejected his petition for a new trial, the Court recalls that, the right to a new trial is not a right guaranteed by the Convention (No. 24469/94, Dec. 2.12.94, D.R. 79, p. 141; No. 7761/77, Dec. 8.5.78, D.R. 14, p.171) and Article 6 § 1 does not apply to the proceedings whereby a request for a new trial is examined (No. 7761/77, Dec. 8.5.78, D.R. 14, p. 171). It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention and must be rejected under Article 35 § 3 of the Convention.

4. As to the applicant's complaint under Article 4 of Protocol No. 7 that he was tried more than once for the same crime, the Court recalls that Turkey has not ratified this Protocol. It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention and must be rejected under Article 35 § 3 of the Convention.

For these reasons, the Court,

DECIDES TO ADJOURN the examination of the applicant’s complaint about the length of the criminal proceedings against him .

unanimously,

DECLARES INADMISSIBLE the remainder of the application.

Erik Fribergh Cristos Rozakis Registrar President