THIRD SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 43840/02
by Özgür AKGÖÇMEN
against Turkey
The European Court of Human Rights (Third Section), sitting on 19 October 2006 as a Chamber composed of:
MrB.M. Zupančič, President,
MrJ. Hedigan,
MrR. Türmen,
MrC. Bîrsan,
MrsA. Gyulumyan,
MrE. Myjer,
MrDavid Thór Björgvinsson, judges,
and Mr V. Berger, Section Registrar,
Having regard to the above application lodged on 7 November 2002,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Özgür Akgöçmen, is a Turkish national who was born in 1954 and lives in Ankara.
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant was a notary in Erdemli, a district of Mersin, at the time of the events giving rise to the present application.
On 22 July 1999 the Tarsus public prosecutor filed a bill of indictment with the Tarsus Assize Court against the applicant charging him with abuse of office under Article 240 of the Criminal Code as he had allegedly failed to pay stamp duty of 2,000,000,000 Turkish liras (TRL) that he was required to pay within the context of his office as a notary to the Erdemli tax department. The public prosecutor further requested that the case be examined by the Mersin Assize Court.
On 30 July 1999 the applicant paid the relevant amount to the Erdemli tax department.
On 9 September 1999 the Tarsus Assize Court referred the case to the Mersin Assize Court as requested.
On 26 October 1999 the Tarsus public prosecutor filed a further bill of indictment with the Tarsus Assize Court against the applicant charging him with embezzlement under Article 202 of the Criminal Code as he had failed to pay value added tax of TRL 1,073,568,000 to the relevant tax department. The public prosecutor further requested that the case be examined by the Mersin Assize Court.
On 23 November 1999 the applicant filed a petition with the Tarsus Assize Court, alleging that the non‑payment of value-added tax did not constitute a criminal offence and requested the court to conduct an examination on this issue.
On the same day, the Tarsus Assize Court referred the case to the Mersin Assize Court as requested. In its decision, the court noted that the applicant had not requested that any further investigation be conducted.
On 27 December 1999 the Mersin Assize Court joined the two cases against the applicant.
On 19 June 2000 the applicant maintained before the Mersin Assize Court that the Tarsus Assize Court had not taken into consideration his request for a further examination in his petition of 23 November 1999 and that he did not accept the characterisation of the offence of embezzlement as he was not a public servant. The applicant further contended that he had failed to pay the taxes in question due to economical problems and that he had not had the intention of committing a crime.
On the same day, the Mersin Assize Court ordered the public prosecutor to submit his opinion on the merits of the case by the next hearing.
On 11 July 2000, during the next hearing the public prosecutor requested that an extension be granted for the submission of his opinion on the merits of the case. The first-instance court granted the extension until 25 September 2000.
On 25 September 2000 the public prosecutor submitted his opinion on the merits of the case. He maintained that the applicant’s failure to pay the stamp duty of TRL 2,000,000,000 constituted embezzlement and requested the court to convict the applicant under Article 202 of the Criminal Code. The applicant and his lawyers objected to the change in the characterisation of the offence. The applicant pointed out that the original charge against him for his failure to pay the stamp duty had been brought under Article 240 of the Criminal Code.
On the same day, the Mersin Assize Court convicted the applicant of embezzlement under Article 202 of the Criminal Code in respect of the offence concerning the non-payment of the stamp duty. The applicant was sentenced to two years and six months’ imprisonment and a fine of TRL 833,333,333 and was permanently debarred from employment in public service. The first-instance court acquitted the applicant of the offence concerning the non-payment of the value added tax holding that the non‑payment of this tax did not constitute an offence under the Criminal Code.
The applicant appealed. In his appeal petition, the applicant maintained, inter alia, that the first-instance court had failed to request the public prosecutor to draft a new bill of indictment and to give him the opportunity to prepare his defence in respect of the new charge.
On 23 May 2002 the Court of Cassation dismissed the applicant’s appeal and upheld the judgment of the Mersin Assize Court.
Between 1 November 2002 and 31 October 2003 the applicant served his prison sentence.
Meanwhile, following the proceedings conducted before the Disciplinary Committee of the Notaries Union of Turkey, on 24 December 2002 the Notaries Union decided to revoke the applicant’s licence to practice as a notary. On 28 March 2003 the Ministry of Justice approved the decision of 24 December 2002.
On an unspecified date, the applicant filed a petition with the Antalya Administrative Court and requested the annulment of the decision of 28 March 2003.
On 12 April 2005 the Antalya Administrative Court decided to annul the decision of the Ministry of Justice holding that the applicant had not had the opportunity to exercise his defence rights during the procedure before the Disciplinary Board of the Notaries Union of Turkey.
The Ministry of Justice appealed.
The proceedings are still pending before the Supreme Administrative Court.
COMPLAINTS
The applicant complains, without invoking any article of the Convention, that he did not have a fair trial as he was convicted of an offence different from the one charged and that he was denied the opportunity to prepare his defence in respect of the new charge. He further contends that the criminal proceedings brought against him were not concluded within a reasonable time.
The applicant further maintains, without invoking any Article of the Convention, that in other cases similar to the case brought against him, the same acts were considered to be abuse of office whereas he was convicted of embezzlement.
THE LAW
1. The applicant complains that the legal recharacterisation of his offence just before his sentence was passed amounted to a breach of his right to a fair trial.
The Court considers that this complaint should be examined under Article 6 §§ 1 and 3 (a) and (b) of the Convention. It also 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 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
2. As regards the applicant’s other complaints, the Court finds that these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols in the light of all the material in its possession, and in so far as the matters complained of are within its competence.
It follows that this part of the application should be rejected in accordance with Article 35 § 4 of the Convention.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant’s complaint concerning the legal recharacterisation of his offence;
Declares the remainder of the application inadmissible.
Vincent BergerBoštjan M. Zupančič
RegistrarPresident
Full & Egal Universal Law Academy