AS TO THE ADMISSIBILITY OF
Application No. 28137/95
by Ferruh TAHMAZOGLU
against Turkey
The European Commission of Human Rights (Second Chamber) sitting
in private on 2 July 1997, the following members being present:
Mrs. G.H. THUNE, President
MM. J.-C. GEUS
G. JÖRUNDSSON
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
M.A. NOWICKI
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 1 February 1995
by Ferruh Tahmazoglu against Turkey and registered on 4 August 1995
under file No. 28137/95;
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, born in 1947, is a Turkish citizen and works as
a tailor in Ünye district belonging to the province of Ordu. He is
representing himself before the Commission.
The facts of the present case, as submitted by the applicant, may
be summarised as follows.
On 9 March 1989 the applicant was sentenced to one year and eight
months' imprisonment for forgery of an official document under Article
342/1 of the Turkish Penal Code by the Ünye Assize Court.
On 10 April 1989, following his conviction, an article with the
title, "Cunning moneylender has been caught and sent to prison" was
published by a journalist, Kenan Aydin, in a local newspaper, Yeni
Hamle. In this article, it was stated that the applicant was known as
a cunning moneylender and that he had been sentenced to imprisonment
since he had forged a voucher of his debtor in order to get more
interest.
The applicant lodged an appeal with the Court of Cassation
against the judgment of the Ünye Assize Court which had sentenced him
to imprisonment.
On 29 November 1989 the sixth chamber of the Court of Cassation
quashed the decision of the Ünye Assize Court on account of
insufficient evidence for conviction.
On 20 February 1990 the Ünye Assize Court adopted the decision
of the Court of Cassation and acquitted the applicant on the same
grounds.
On 25 October 1990, the Court of Cassation upheld the judgment
of acquittal of the Ünye Assize Court dated 20 February 1990.
In the meantime, on 21 March 1990 the applicant had filed a suit
against the journalist for defamation in the press. He requested the
First Instance Court to award compensation for non-pecuniary damage.
On 27 May 1991 the Ünye First Instance Court awarded compensation
to the applicant in respect of non-pecuniary damage sustained by him.
The journalist appealed against the judgment of the Ünye First
Instance Court which on 10 November 1992 was quashed by the fourth
chamber of the Court of Cassation. That Court held that the journalist
had not defamed the applicant since the article in the local newspaper
had been based on true facts at the time when it was published, which
was after the conviction of the applicant by the Ünye Assize Court.
On 20 May 1993 the Ünye First Instance Court decided not to adopt
the decision of the fourth chamber of the Court of Cassation, which
had quashed its judgment awarding non-pecuniary damage to the
applicant. The Ünye First Instance Court, insisting on its previous
judgment dated 27 May 1991, held that the journalist had attacked the
applicant's reputation through his statements in the newspaper article.
On 2 February 1994 the joint civil chambers of the Court of
Cassation quashed the judgment of the Ünye First Instance Court and
held that it was unlawful not to adopt the decision of the fourth
chamber of the Court of Cassation.
On 29 June 1994 the joint civil chambers of the Court of
Cassation dismissed the applicant's request for rectification of its
decision dated 2 February 1994.
On 27 November 1994 the Ünye First Instance Court adopted the
decision of the joint civil chambers of the Court of Cassation and
refused to award compensation for non-pecuniary damage to the
applicant.
COMPLAINTS
The applicant complains under Article 6 para. 1 of the Convention
that his right to a fair trial was violated due to the decision of the
Court of Cassation, which quashed the judgment of the Ünye First
Instance Court. In this regard, the applicant submits that the Court
of Cassation had approved compensation claims on account of non-
pecuniary damage in similar cases.
THE LAW
The applicant complains that he did not have a fair trial before
the Court of Cassation as guaranteed by Article 6 para. 1 (Art. 6-1)
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, which are
competent, in the first place, to interpret and apply domestic law (No.
25062/94, Dec. 18.10.95, D.R. 83 p. 77).
In this case, the Commission notes that the applicant's
complaints concern the national courts', in particular the Court of
Cassation's, evaluation of the facts and the evidence and the
interpretation of the domestic law. The Court of Cassation held that
there was no defamation of the applicant's reputation since the article
about the applicant had been published in the newspaper after the
applicant had been convicted by the Ünye Assize Court. The Commission
finds no evidence or basis on which to conclude that the Court of
Cassation, in establishing the facts or interpreting the domestic law,
acted in an arbitrary or unreasonable manner. Therefore, there is no
appearance that the Court of Cassation violated the applicant's right
under Article 6 para. 1 (Art. 6-1) of the Convention.
It follows that 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