DECISION

AS TO THE ADMISSIBILITY OF

Application No. 30006/96

by Ersoy UGUR

against Turkey

The European Court of Human Rights ( Second Section) sitting on 8 December 1998 as a Chamber composed of

Mr C. Rozakis , President ,

Mr M. Fischbach ,

Mr B. Conforti ,

Mr G. Bonello ,

Mr R. Türmen

Mrs V. Strážnická ,

Mr P. Lorenzen , Judges ,

with Mr E. Fribergh, S ection 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 22 June 1995 by Ersoy UGUR against Turkey and registered on 30 January 1996 under file No. 30006/96;

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

Having deliberated;

Decides as follows:

THE FACTS

The applicant, who was born in 1944, is a Turkish citizen resident in Ä°zmir .

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

A. Particular Circumstances of the Case

The applicant was a television producer at the Turkish Radio and Television Institution (TRT) at the time of the events. He was in charge of a weekly television show in which approximately thirty or forty artists performed each week.

In July 1993 the TRT inspectors started an investigation into  the allegations that the applicant had extorted a certain amount of money from the artists who performed in the show.

On 17 September 1993 the TRT management decided that the applicant should be dismissed on the ground of breach of the TRT Personnel Regulations.

The TRT also filed a criminal complaint against the applicant with the Public Prosecutor attached to the Ä°zmir Assize Court. On 11 November 1993 the public prosecutor started criminal proceedings in the Ä°zmir Assize Court pursuant to Section 209 of the Criminal Code, alleging that the applicant had committed  extortion. In his indictment, the public prosecutor accused the applicant of extorting money from six of the artists who had performed in his show between the years 1989 and 1993. 

The Ä°zmir Assize Court heard oral evidence from many of the artists who had performed in the show. The applicant requested the Ä°zmir Assize Court to hear another witness, O.G., an artist who had performed in his show, but on 25 January 1994 the court refused to hear this witness on the ground that O.G. was not connected with the case at hand and that her evidence could not be expected to contribute to the elucidation of the relevant facts of the case.

In its judgment of 28 April 1994 the İzmir Assize Court, after hearing oral evidence from the witnesses called by the prosecution and the defence, found that the applicant had borrowed money from the artists who had performed in his show and did not pay his debts back until he was brought before the court. The court also stated that it could not establish any facts to show that the applicant had forced these people to pay a sum of money. Consequently, it convicted the applicant of abuse of office under Section 240 of the Criminal Code and sentenced him to one year's imprisonment, a fine of 160,000 Turkish Lira and three months'  disqualification from holding public office.

On 27 December 1994 the applicant's appeal to the Court of Cassation was rejected. The Court of Cassation held that the applicant's conviction and sentence was in accordance with the Turkish Criminal Code.

On 14 April 1995 the Court of Cassation dismissed the applicant's request for rectification of the decision of 27 December 1994.

B. Relevant Domestic Law

Sections 209 and 240 of the Criminal Code are set out below.

Section 209

(Translation)

“ Any public officer who, in abuse of his title or office, wrongfully compels a person to pay a sum of money or to provide or promise any other benefit either to himself or to a third party, shall be sentenced to heavy imprisonment for not less than five years.”

Section 240

(Translation)

“Any person who is a public officer and abuses his office in any manner other than that defined in this Code, shall be sentenced to imprisonment of not less than six months but not more than three years depending upon the gravity of the offence.”

COMPLAINTS

The applicant complains that his right to a fair trial was breached as regards the national courts' evaluation of facts and interpretation of domestic law.

In this respect the applicant maintains in particular that the courts dismissed his request to hear a witness.

The applicant also submits that his conviction of abuse of his office, although he was charged with extortion represented a misinterpretation of domestic law. He alleged that he was not informed promptly that the offence he was charged with was reclassified by the court and he did not have the chance to reorganise his defence accordingly.

The applicant invokes Articles 6 and 7 of the Convention.

THE LAW

The applicant complains that his right to a fair hearing guaranteed under Article 6 of the Convention has been violated.

The Court recalls that, in accordance with Article 19 of the Convention, its sole task is to ensure the observance of the obligations undertaken by the High Contracting Parties in the Convention. In particular, it is not competent to deal with an application alleging that errors of law or fact have been committed by domestic courts, except where it considers that such errors might have involved a possible violation of any of the rights and freedoms set out in the Convention (Eur. Court HR., Schenk v. Switzerland judgment of 12 July 1988, Series A, no. 140, p.29, para.45).

As regards the complaints about the taking and assessment of evidence, the Court recalls that as a general rule, it is for the national courts to assess the evidence before them as well as the relevance of the evidence which the defendants seek to adduce. The Court’s task is to ascertain whether the proceedings considered as a whole, including the way in which the evidence was taken, were fair (Eur. Court HR., Asch v. Austria judgment of 26 April 1991, Series A, no. 203, p.10, para.26).

The Court notes that the İzmir Assize Court refused to hear the applicant's witness, O.G., as it considered that her evidence would not contribute to the elucidation of the relevant facts of the case. On the basis of the evidence before it, the first instance court convicted the applicant of abuse of office under section 240 of the  Criminal Code. The applicant has not shown that the testimony of O.G. was essential for the determination of his guilt in respect of that criminal offence.

As regards the complaint concerning the reclassification of the charges against the applicant, the Court notes that such reclassification of the nature of the accusation may infringe the guarantees embodied in Article 6 §3, if the defendant has not been duly informed and given effective means of reorganising his defence accordingly  (Eur. Court HR., Chichlian and Ekindjian v. France, judgment of  28 November 1989, Series A, no. 162, Commission Report p. 49).

In the present case, however, the Court observes that the applicant was charged with extortion whereas he was convicted of abuse of his office. The Court observes that under the Turkish Law, the offence of extortion is a special form of abuse of office. A public officer can be convicted of extortion if he abuses his office and compels a person to provide benefits either to himself or a third party. Accordingly, as the applicant submitted his defence for the allegation of extortion, he had had the chance  of submitting his defence on abuse of office. It appears from the case file that the Ä°zmir Assize Court, after hearing oral evidence from the witnesses called by the prosecution and the defence, found that the applicant had borrowed money from the artists who had performed in his show and did not pay his debts back until he was brought before the court. The court also stated that it could not establish any facts to show that the applicant had forced these people to pay a sum of money. Consequently, the applicant was convicted for abuse of his office.      

In these circumstances, the Court finds no element which would allow it to conclude that the courts established the facts in an arbitrary or unreasonable manner,  that they misinterpreted the applicable provisions of the domestic law or that the applicant was not able to defend himself effectively against the charge for which he was convicted.

Therefore, there is no appearance that the national courts violated the applicant's rights under Article 6 §§ 1 and 3 of the Convention.

The Court also considers that there is no appearance of a violation of Article 7 of the Convention.

It follows that the applicant's complaints are manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

For these reasons, the Court, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

Erik Fribergh Christos Rozakis

Registrar President