SECOND SECTION
DECISION
Application no. 61196/11
Adnan ERKUŞ
against Turkey
The European Court of Human Rights (Second Section), sitting on 4 December 2012 as a Chamber composed of:
Guido Raimondi, President,
Danutė Jočienė,
Peer Lorenzen,
Dragoljub Popović,
Işıl Karakaş,
Nebojša Vučinić,
Paulo Pinto de Albuquerque, judges,
and Stanley Naismith, Section Registrar,
Having regard to the above application lodged on 22 August 2011,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Adnan Erkuş, is a Turkish national, who was born in 1960 and lives in Mersin. He was represented before the Court by Mr T. Benhür, a lawyer practising in Ankara.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. The applicant is a professor at the University of Mersin. During a meeting in preparation for a national congress he had a verbal disagreement with another professor (“Mr A.T.”), who was the Dean of the Faculty in which the applicant worked. The applicant called Mr A.T. a “thief” for having allegedly distributed to students, without his permission, several pages of a book written by the applicant (as well as an article) under Mr A.T.’s own name.
4. Following the disagreement, the applicant initiated civil proceedings against Mr A.T. for plagiarism and Mr A.T., in turn, lodged a complaint against the applicant with the public prosecutor, alleging defamation and threatening behaviour.
5. On 15 June 2011 the Ankara Civil Court found against Mr A.T. in respect of plagiarism.
6. During the criminal proceedings conducted against him at the Mersin Criminal Magistrates’ Court, the applicant, in his defence statements dated 27 June and 22 October 2010, requested the court to suspend the pronouncement of the judgment if he could not be acquitted.
7. On 30 June 2011, after having heard the testimonies of seven witnesses, the Mersin Criminal Magistrates’ Court acquitted the applicant of threatening behaviour, but convicted him of defamation. However, having recourse to the provisions of Article 231 of the Code of Criminal Procedure, the court suspended the pronouncement of the judgment on account of the applicant’s previous good record and the unlikelihood of his committing a further offence. On 15 July 2011 the Mersin Criminal Court dismissed an objection lodged by the applicant and upheld the decision.
B. Relevant domestic law
8. The relevant parts of Article 231 of the Code on Criminal Procedure (Law no. 5271) provide as follows:
“(5) If the accused, who had been tried on the charges brought against him, has been sentenced to a judicial fine or to a term of imprisonment of less than two years, the court may decide to suspend the pronouncement of the judgment .... The suspension of the pronouncement of the judgment means that the judgment would not have any legal consequences for the offender.
(6) A decision to suspend the pronouncement of the judgment may be given provided that:
(a) the offender has never been found guilty of a deliberate offence;
(b) the court is convinced, taking into account the offender’s character and his behaviour during the proceedings, that there is little risk of any further offence being committed;
(c) the damage caused to the victim or to society is repaired by way of restitution or compensation. (Additional Sentence: Article 7 of Law no. 6008 – entered into force on 25 July 2010) If the accused does not agree to this, the pronouncement of the judgment shall not be suspended. (...)
(8) If the pronouncement of the judgment is suspended, the offender shall be bound by a supervision order for the following five years. (...)
(10) If the offender does not commit another deliberate offence and abides by the obligations of the supervision order, the suspended judgment shall be cancelled and the case discontinued.
(11) If the offender commits another deliberate offence or breaches the obligations of the supervision order, the court shall then impose a sentence of imprisonment. Nevertheless, after evaluating the offender’s situation, the court may decide to reduce up to half of the term imposed. If conditions so permit, the court may also choose to suspend the sentence or commute it to other optional penalties.
(12) An objection may be lodged against the decision to suspend the pronouncement of the judgment.”
9. Provisional Article 2 of Law no. 6008, which entered into force on 25 July 2010, provides as follows:
“If persons in respect of whom pronouncement of the judgment has been suspended apply to the courts within fifteen days after the entry into force of this section, the decision shall be retracted by the court and a judgment will be rendered.”
COMPLAINTS
10. Relying on Article 3 of the Convention, the applicant submitted that the fact that his head of department had been convicted of plagiarising his work had caused him to suffer inhuman and degrading treatment.
11. Relying on Articles 1, 6 and 7 of the Convention, the applicant further complained of his inability to appeal to the Court of Cassation against the judicial decision given against him and about the courts’ assessment of the evidence and interpretation of the law, and maintained that he should not have been convicted.
THE LAW
A. Complaint under Article 3 of the Convention
12. The applicant complained that the fact that the person who had plagiarised his works had been his faculty head had amounted to inhuman and degrading treatment.
13. The applicant has not provided any further details in his submissions. The Court reiterates that to fall within the scope of Article 3 of the Convention, the alleged treatment must attain a minimum level of severity (see Labita v. Italy [GC], no. 26772/95, § 120, ECHR 2000 IV).
14. In the present case there is no indication that the treatment complained of reached the threshold of severity which would bring the matter within the scope of Article 3. 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.
15. It follows that this part of the application should be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
B. The remainder of the complaints
16. Relying on Articles 1, 6 and 7 of the Convention the applicant further complained of his inability to lodge an appeal against his conviction. He further challenged the outcome of the proceedings.
17. The Court considers that these complaints should be assessed from the standpoint of Article 6 of the Convention alone.
18. It should be reiterated that Article 6 of the Convention does not compel the Contracting States to set up courts of appeal. However, where such courts do exist, the requirements of Article 6 must be complied with, in order, for example, that litigants may be guaranteed an effective right of access to court for the determination of their “civil rights and obligations”. The “right to a court”, of which the right of access is one aspect, is not absolute; it is subject to limitations permitted by implication, in particular where the conditions of admissibility of an appeal are concerned, since by its very nature it calls for regulation by the State, which enjoys a certain margin of appreciation in this regard. However, these limitations must not restrict or reduce a person’s access in such a way or to such an extent that the very essence of the right is impaired (see Mikulová v. Slovakia, no. 64001/00, § 52, 6 December 2005; see also Waite and Kennedy v. Germany [GC], no. 26083/94, § 59, ECHR 1999‑I, and Tsalkitzis v. Greece, no. 11801/04, § 44, 16 November 2006).
19. The Court notes that complaints concerning the suspension of the pronouncement of the judgment have been examined under Article 3 of the Convention in a number of cases where the applicants were the victims, rather than the accused, in the relevant proceedings in domestic law (see, for example, Taylan v. Turkey, no. 32051/09, 3 July 2012, and Eski v. Turkey, no. 8354/04, 5 June 2012). In these judgments the applicants complained of ill-treatment while in police custody and the Court decided that the suspension of the sentences of the police officers accused constituted a procedural violation of Article 3 of the Convention.
20. However, in the present case, the applicant complained of his inability to appeal to the Court of Cassation against the decision to suspend the pronouncement of the judgment against him.
21. The Court notes that Article 231 § 6 (c) of the Code on Criminal Procedure, as modified on 25 July 2010, states that the domestic courts shall not suspend the pronouncement of the judgment if the accused does not agree with this (see paragraph 8 above). Therefore, there is no longer any obstacle to introducing an appeal to the Court of Cassation against the judgment which is to be rendered.
It is to be noted that the legislator extended this possibility to the cases which became final before 25 July 2010 by Provisional Article 2 of the Law no. 6008 (see paragraph 9 above).
22. As for the applicant’s complaints before the Court, on 30 June 2011 the Mersin Criminal Magistrates’ Court convicted the applicant of defamation but ordered “the suspension of the pronouncement of the judgment” as the applicant had requested. The Court notes that, following the above-mentioned amendments to the relevant law, the applicant was afforded the possibility of submitting a request for the pronouncement of the judgment from the court, which would have given him the opportunity of lodging an appeal to the Court of Cassation. The applicant did not avail himself of this course of action but preferred to benefit from the suspension of the pronouncement of the judgment.
It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Stanley NaismithGuido Raimondi
RegistrarPresident
Full & Egal Universal Law Academy