AS TO THE ADMISSIBILITY OF
Application No. 28773/95
by Ali IMIRGI
against Turkey
The European Commission of Human Rights (Second Chamber) sitting
in private on 26 February 1997, the following members being present:
Mrs. G.H. THUNE, President
MM. J.-C. GEUS
G. JÖRUNDSSON
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
M.A. NOWICKI
I. CABRAL BARRETO
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
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 18 April 1995 by
Ali IMIRGI against Turkey and registered on 27 September 1995 under
file No. 28773/95;
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 is a Turkish citizen, born in 1954, resident in
Manisa. Before the Commission he is represented by Ms. Bilge Uslu and
Mr. Ibrahim Uslu, both lawyers practising in Izmir.
The facts of the present case, as submitted by the applicant, may
be summarised as follows.
The applicant started working as an Insurance Agent of a Turkish
General Insurance Joint Stock Company (the "company"), on a contract
dated 8 March 1985. The applicant was dismissed on 3 October 1988. The
company served notice on the applicant that he owed them 17,891,816
Turkish lira in insured customers' premiums. It claimed that the
applicant had breached his fiduciary duty by keeping the premiums of
the insured customers instead of sending them to the company. The
applicant contested the company's allegations. Subsequently, the
insurance company requested the public prosecutor to institute criminal
proceedings against the applicant.
In an indictment dated 11 January 1989, the public prosecutor
charged the applicant under Articles 510-522 of the Turkish Criminal
Code, which stipulate that it is an offence for a person to spend,
consume, deny having received or to alter for the benefit of himself
or of another property entrusted to him.
On 14 September 1993 the Turgutlu First-Instance Court convicted
the applicant of an offence under Article 510 of the Turkish Criminal
Code. It sentenced the applicant to one year and six months'
imprisonment. It held that the applicant had breached his fiduciary
duty as an insurance agent by failing to send the customers' insurance
premiums to the company. Furthermore, the court relied on expert
evidence which had established according to a decision of the Izmir
Commercial Court that the applicant had failed to send the insurance
premiums in question to the company.
The applicant appealed against this judgment on the grounds that
his sentence fell to be considered under the provisions of the
Insurance Control Law as opposed to Article 510 of the Turkish Criminal
Code. On 13 September 1994 the Court of Cassation dismissed his appeal
and upheld the decision of the first instance court.
On 21 October 1994 the Court of Cassation's decision was served
on the applicant and he was sent to prison to serve his sentence. The
applicant is still in prison.
COMPLAINTS
1. The applicant complains that he did not have a fair trial as
guaranteed by Article 6 para. 1 of the Convention. He alleges that the
domestic courts failed to consider the principal provisions of the
Insurance Control Law which define the offence in question. He states
that the courts ignored the provisions of Article 48 of that law, and
that he was erroneously sentenced pursuant to Articles 510-522 of
Turkish Criminal Code which provide for heavier penalties.
2. The applicant complains under Article 7 para. 1 of the Convention
that the sentence he received was heavier than it would have been if
he had been sentenced under the Insurance Control Law.
3. The applicant complains under Article 8 of the Convention that
the court's decision to send him to prison infringed his private and
family life as the punishment prevents him from working as an
accountant and damages his social status.
THE LAW
1. The applicant complains that he did not have a fair trial as
guaranteed by Article 6 para. 1 (Art. 6-1) of the Convention. He
alleges that the domestic courts failed to consider the provisions of
the Insurance Control Law which defines the offence in question. He
states that the courts ignored the provisions of Article 48 of the
above-mentioned Law, and that he was erroneously sentenced pursuant to
Articles 510-522 of the Turkish Criminal Code which provide for heavier
penalties. The applicant also complains, on the basis of the same
facts, of a breach of Article 7 (Art. 7) of the Convention.
The Commission recalls that under Article 19 (Art. 19) of the
Convention its sole task is to ensure observance of the engagements
undertaken by the High Contracting Parties in the Convention. It is not
competent to examine applications concerning errors of law or fact
allegedly committed by the competent national authorities, to whom it
falls, in the first place, to interpret and apply domestic law (No.
19890/92, Dec. 3.5.93, D.R. 74 p. 239).
In this case, the Commission notes that the applicant's
complaints concern the national courts' evaluation of the facts and
evidence and the interpretation of the domestic law. The courts held
that the provisions of the Turkish Criminal Code were applicable to the
applicant's offence. The Commission considers it irrelevant whether the
applicant's behaviour also came within the scope of the Insurance
Control Law. The Commission finds no element which would allow it to
conclude that the courts established the facts in an arbitrary or
unreasonable manner or that they misinterpreted the applicable
provisions of the criminal law. Therefore, there is no appearance that
the applicant's conviction was not in conformity with Articles 6 and
7 (Art. 6, 7) of the Convention.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The applicant also complains under Article 8 (Art. 8) of the
Convention that the First Instance Court's decision to send him to
prison infringed his private and family life as the punishment prevents
him from working as an accountant and damages his social status.
The Commission recalls that when a person is arrested and
detained in conformity with Article 5 para. 1 (Art. 5-1) of the
Convention, such arrest and detention must necessarily imply a
disruption of private life but this inevitable consequence of detention
cannot in principle be regarded as an interference with the right to
respect for private life protected by Article 8 (Art. 8) of the
Convention (No. 10427/92, Dec. 12.5.86, D.R. 47 p. 85).
In the present case the Commission notes that the applicant's
detention following his conviction under provisions of the Turkish
Criminal Code was in conformity with Article 5 para. 1 (a) (Art. 5-1-a)
of the Convention and there is no indication that there has been any
interference with the applicant's rights under Article 8 (Art. 8) of
the Convention going beyond the normal effects of criminal
detention.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.-T. SCHOEPFER G.H. THUNE
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy