AS TO THE ADMISSIBILITY OF
Application No. 31836/96
by D.H.
against Turkey
The European Commission of Human Rights (Second Chamber) sitting in
private on 20 May 1998, the following members being present:
MM J.-C. GEUS, President
M.A. NOWICKI
G. JÖRUNDSSON
J.-C. SOYER
H. DANELIUS
Mrs G.H. THUNE
MM F. MARTINEZ
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
A. ARABADJIEV
Ms M.-T. SCHOEPFER, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 27 February 1996
by D.H. against Turkey and registered on 12 June 1996 under file
No. 31836/96;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, born in 1971, is a Turkish citizen and resident
in izmir. She is represented before the Commission by Mr Sakir
Hepiyiler, a lawyer practising in izmir.
The facts of the present case, as submitted by the applicant, may
be summarised as follows.
On 22 December 1989 the applicant, who was a student,
participated in a debate in the canteen of the Ankara Gazi University.
During the debate some of the participants shouted slogans. The police
intervened and there ensued a fight between the police and the
participants in the forum. Some of the policemen and participants were
injured and two police cars were destroyed.
Following the incidents the applicant, along with some other
students, was arrested by the police.
On 29 December 1989 she was brought before the Ankara State
Security Court and thereafter she was released.
On 19 January 1990 the Public Prosecutor attached to the Ankara
State Security Court instituted criminal proceedings against the
applicant and 27 others.
On 4 October 1990 the State Security Court declined jurisdiction
ratione materiae and referred the case to the Ankara Criminal Court.
On 12 May 1992 the applicant was convicted by the Ankara Criminal
Court for committing three different offences; she was sentenced as
follows:
- to 1 year and 6 months' imprisonment and a fine for destroying
State property (police cars);
- to 3 years' imprisonment for resisting arrest by the police;
- to 1 year and 6 months' imprisonment and a fine for taking
part in an illegal demonstration.
On 13 May 1992 the applicant lodged an appeal with the Court of
Cassation against the judgment.
On 28 March 1995 the Court of Cassation quashed the applicant's
conviction for destroying State property and taking part in an illegal
demonstration. It upheld the applicant's conviction for resisting
arrest by the police.
The applicant applied to the Court of Cassation and requested
that the decision of 28 March 1995 be rectified as her conviction for
resisting to arrest by the police had not been quashed.
On 29 June 1995 the Court of Cassation dismissed her request for
rectification of its decision.
Following the decision of the Court of Cassation, the Ankara
Criminal Court retried the applicant along with two other accused. On
11 July 1995 the court handed down a judgment in which reference was
made to all three charges initially brought against these persons and
which concluded that they had to be acquitted. The court considered
that there was no evidence showing that the three accused had committed
the offences in question.
On 21 August 1995 the applicant was arrested and imprisoned on
the ground that she had been convicted of resisting arrest by the
police.
The applicant filed a petition with the Ankara Criminal Court and
requested to be released. She contended that she was being detained
despite having been acquitted of all the charges brought against her
by the Ankara Criminal Court's judgment of 11 July 1995.
On 15 November 1995 the Ankara Criminal Court dismissed the
applicant's request for release. The court stated that her conviction
for resisting police arrest had been upheld by the decision of the
Court of Cassation and that it had become final on 28 March 1995. The
court further stated that by its judgment dated 11 July 1995 the
applicant had been acquitted only of the other two charges.
On 11 December 1995 the Ankara Assize Court dismissed the
applicant's objection against this decision. It also considered that
the applicant's conviction for resisting police arrest had become final
by the Court of Cassation's decision and that her request for release
had no legal basis.
COMPLAINTS
The applicant complains that she was detained despite having been
acquitted by the Ankara Criminal Court's judgment of 11 July 1995. She
submits that she was unlawfully deprived of her freedom. The applicant
does not invoke any particular provision of the Convention.
THE LAW
The applicant complains that she was unlawfully deprived of her
freedom despite having been acquitted.
The Commission recalls that for a deprivation of liberty to be
lawful it must at any given time fall within one of the categories set
out in paras. (a) to (f) of Article 5 para. 1
(Art. 5-1-a, 5-1-b, 5-1-c, 5-1-d, 5-1-e, 5-1-f) of the Convention
(e.g., No. 8022/77, 8025/77 & 8027/77, Dec. 18.3.81, D.R. 25, p. 15).
The Commission considers that the applicant's complaint
concerning the alleged unlawfulness of her detention falls to be
considered under paragraph 1 (a) of Article 5 (Art. 5-1-a) which reads
as follows:
"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;..."
In the present case, the Commission notes at the outset that on
12 May 1992 the Ankara Criminal Court convicted the applicant of three
offences. On 28 March 1995 the conviction concerning one of these
offences, namely resisting arrest by the police, was confirmed by the
Court of Cassation and became final, while the judgment of the Ankara
Criminal Court was quashed as regards the applicant's conviction of the
other two offences. In these circumstances, the powers of the Ankara
Criminal Court, when it retried the applicant's case on 11 July 1995,
were limited to those offences in respect of which the applicant's
conviction had been quashed. Accordingly she could be acquitted only
of these offences.
It is true that the Ankara Criminal Court's judgment of 11 July
1995 was formulated in a misleading way. The applicant believed that
she had also been acquitted of the charge of resisting arrest by the
police. Therefore, she opposed her detention for serving the sentence
and requested to be released. However, her request was rejected by the
Ankara Criminal Court and the Assize Court which both confirmed that
there was a final conviction upheld by the Court of Cassation which
could not be affected by the subsequent proceedings in the Ankara
Criminal Court.
The Commission recalls that the interpretation of the provisions
of the national legislation is in principle a matter for the domestic
courts. This also applies where, as here, the manner in which the
national law has been applied may give rise to certain doubts which
call for clarification. The Commission is satisfied that in the present
case the Turkish courts, when examining the lawfulness of the
applicant's detention, correctly found that this detention was based
on the applicant's conviction of one of the offences with which she had
been charged and which had become final already in the first round of
the proceedings when it was confirmed by the Court of Cassation. In
these circumstances, the Commission considers that the applicant's
detention was "lawful detention after conviction by a competent court"
within the meaning of Article 5 para 1 a) (Art. 5-1-a) of the
Convention.
The Commission further observes that, if in the particular
circumstances of this case the determination of the lawfulness of the
detention was not already incorporated in the judgments by which the
applicant had been found guilty, there being a doubt as to whether
these judgments could have been affected by the applicant's subsequent
acquittal, the applicant in fact obtained a speedy judicial review of
this question before two levels of jurisdiction. The requirements of
Article 5 para. 4 (Art. 5-4) of the Convention have therefore also been
met in the instant case.
It follows that the application must be rejected as being
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
M.-T. SCHOEPFER J.-C. GEUS
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy