CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 20 novembre 2007

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .s84D0D60A { width:8.36pt; display:inline-block } .s61E420C2 { font-family:Arial; font-variant:small-caps } .sA36B60A1 { font-family:Arial; font-style:italic } .s61ED8A2B { width:14.36pt; display:inline-block } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s30870011 { font-family:Arial; font-size:8pt; font-weight:bold; vertical-align:super } .s83BE5C30 { font-family:Arial; font-size:8pt; vertical-align:super } .s87F05BA2 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .sDD165512 { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt; text-align:justify } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .s8BD2CFA4 { width:35.21pt; display:inline-block } .sC474A5FB { width:236.12pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block } SECOND SECTION PARTIAL DECISION AS TO THE ADMISSIBILITY OF Application no. 28388/03 by Nurcan GÜNGİL against Turkey The European Court of Human Rights (Second Section), sitting on 20   November as a Chamber composed of:   Mrs   F. Tulkens , President ,   Mr   I. Cabral Barreto,   Mr   R. Türmen ,   Mr   M. Ugrekhelidze ,   Mr   V. Zagrebelsky ,   Mrs   D. Jočienė ,   Mr   D. Popović, judges , and Mrs S. Dollé , Section Registrar , Having regard to the above application lodged on 30 July 2003, Having deliberated, decides as follows: THE FACTS The applicant, Mrs Nurcan Güngil, is a Turkish national who was born in   1958 and lives in Ankara. She is represented before the Court by Mrs   İ.   İlimoğlu, a lawyer practising in Ankara. The facts of the case, as submitted by the applicant, may be summarised as follows. A. Civil Proceedings before the Ankara Commercial Court On 2 and 3 May 1995 the applicant deposited a total of 1,537,000,000   Turkish liras (TRL) with Global A.Ş., a private brokerage firm, and requested the firm to buy Treasury bonds for her. In September 1995 the applicant contacted B.G., the broker to whom she had given the money, and asked her whether she had bought the Treasury bonds on her behalf. B.G. informed the applicant, by way of a handwritten document, that she had. On 15 March 1996 when the applicant went to the office of Global A.Ş., she learned that B.G. had used her money not to buy Treasury bonds but to buy stocks which had lost their value and, therefore, the firm had caused her to lose money. On 30 September 1996 the applicant brought a case against Global A.Ş. and B.G. before the Ankara Commercial Court ( Asliye Ticaret Mahkemesi ), requesting the defendants to reimburse the money which she had deposited with the firm. On 27 May 1998 the Ankara Commercial Court partially granted the applicant’s request and ordered the defendants to pay her TRL 942,000,000 with simple interest. Both the applicant and the defendants appealed. On 26 October 2000 the Court of Cassation quashed the judgment of 27   May 1998. The case was subsequently remitted to the Ankara Commercial Court. On 7 November 2001 the Ankara Commercial Court once again partially granted the applicant’s request and ordered Global A.Ş. and B.G. to pay her TRL 1,512,000,000 with simple interest. The applicant and Global A.Ş. appealed. On 10 October 2002 the Court of Cassation upheld the judgment of 7   November 2001. On 13 January 2003 the applicant requested the rectification of the Court of Cassation’s decision of 10 October 2002. On 11 April 2003 the Court of Cassation dismissed the applicant’s request. B. Proceedings before the 17 th Chamber of the Ankara Criminal Court On 16 October 1996, on a complaint lodged by the applicant, the Ankara public prosecutor filed a bill of indictment with the Ankara Criminal Court against B.G., charging her with breach of trust. Subsequently, on 8 January 1997, on a complaint lodged by Global A.Ş., the Ankara public prosecutor filed another indictment with the Ankara Criminal Court against B.G. and the applicant, charging them with fraud. On an unspecified date both proceedings were joined before the 17 th   Chamber of the Ankara Criminal Court. On 25 March 1999 the first-instance court acquitted the applicant and B.G. of the charge of fraud. The court however convicted B.G. of a breach of trust and sentenced her to one year’s imprisonment. On 16 October 2000 the Court of Cassation upheld the judgment of 25   March 1999. C. Proceedings before the 11 th Chamber of the Ankara Criminal Court Following her acquittal, the applicant requested the Ankara public prosecutor’s office to bring an action in defamation against A.P.S. and F.S.E., two directors of Global A.Ş., for having accused her of fraud. On 13 June 2000 the Ankara public prosecutor filed a bill of indictment with the Ankara Criminal Court against A.P.S. and F.S.E., charging them with defamation under Article   285 paragraph 1 of the former Criminal Code. On an unspecified date the applicant joined these proceedings as a civil party. On 21   December   2000 an Act which governed the conditional release, suspension of proceedings or execution of sentences in respect of offences committed before 23 April 1999 (Law no. 4616) came into force. On 23 January 2001 the 11 th Chamber of the Ankara Criminal Court decided to defer the imposition of a final sentence on A.P.S. and F.S.E., in accordance with that Act. The court held that the criminal proceedings against the accused would be suspended and a final sentence would only be imposed should they be convicted of a further intentional offence within five years of this decision. The applicant did not file an objection to this decision. COMPLAINTS A. Complaints concerning the proceedings before the Ankara Commercial Court The applicant complained under Article 6 § 1 of the Convention that the proceedings before the Ankara Commercial Court had not been concluded within a reasonable time. The applicant further complained, under the same provision, of an absence of reasoning in the Court of Cassation’s decision of 11   April 2003. The applicant submitted, under Article 13 of the Convention and Article   1 of Protocol No. 1, that the first ‑ instance court had failed to order the defendants to make the payment with compound interest, although one of the defendants was a commercial institution. B. Complaints concerning the proceedings before the 11 th Chamber of the Ankara Criminal Court The applicant submitted under Article 6 § 1 of the Convention that the length of the criminal proceedings against A.P.S. and F.S.E. had been excessive on account of the first-instance court’s decision to defer the imposition of a final sentence upon the accused for a period of five years. The applicant complained under Article 13 of the Convention that she would not be able to bring successful compensation proceedings against A.P.S. and F.S.E., as the first-instance court had not convicted them and had decided to defer the imposition of a final sentence. THE LAW A. Complaints concerning the proceedings before the Ankara Commercial Court 1. The applicant complained under Article 6 § 1 of the Convention that the length of the proceedings before the Ankara Commercial Court had been excessive. The Court 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. The applicant complained under Article 6 § 1 of the Convention of the absence of reasoning in the Court of Cassation’s decision of 11   April   2003. The Court reiterates that Article 6 of the Convention does not require a court, when rejecting an appeal with reference to the reasoning of the lower court, to give detailed reasons for its decision (see Erçıkdı and Others v.   Turkey (dec.), no. 52782/99, 31   March 2005). The Court observes that the Ankara Commercial Court’s judgment explained the facts, the parties’ submissions, the evidence and the court’s interpretation, as well as the legal provisions applied. The Court of Cassation upheld this judgment, stating that the assessment of the facts and evidence and the first-instance court’s conclusions were in accordance with the law. The Court considers therefore that the decision of the Court of Cassation must be interpreted as having fully accepted the reasoning of the lower instance. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article   35 §§   3 and   4 of the Convention. 3. The applicant maintained under Article 13 of the Convention and Article   1 of Protocol No. 1 that the Ankara Commercial Court had failed to order the defendants to make the payment with compound interest, although one of the defendants was a commercial institution. The Court considers that this complaint should be examined under   Article 6 § 1 of the Convention since it essentially concerns the first-instance court’s evaluation of the circumstances of the case and the domestic law provisions applied. In this connection, the Court reiterates at the outset its “fourth instance” doctrine (see   García Ruiz v.   Spain [GC], no.   30544/96, §§   28-29, ECHR 1999 ‑ I). Having regard to the materials submitted by the applicant, it   considers that she has failed to lay the basis of an arguable claim that any of the procedural guarantees contained in Article   6 were breached in the case. This part of the application is therefore manifestly ill-founded and must be rejected pursuant to Article   35   §§   3   and 4 of the Convention. B. Complaints concerning the proceedings before the 11 th Chamber of the Ankara Criminal Court The applicant submitted under Article 6 § 1 of the Convention that the length of the criminal proceedings against A.P.S. and F.S.E. had been excessive on account of the first-instance court’s decision of 23   January   2001 to defer the imposition of a final sentence upon the accused for a period of five years. The applicant further complained under Article   13 of the Convention that she would not be able to bring successful compensation proceedings against the defendants as the first-instance court had not convicted them. In the light of its jurisprudence (see Koç and Tambaş v. Turkey (dec.), no.   46947/99, 24 February 2005) and having regard to the fact that the applicant did not file an objection to the decision of 23   January 2001, the Court considers that the proceedings brought against A.P.S. and F.S.E. ended on that date. However, the application was introduced on 30   July 2003, that is more than six months later. It follows that these complaints have been lodged out of time and must be rejected in accordance with Article   35 §§   1 and   4 of the Convention.     For these reasons, the Court unanimously Decides to adjourn the examination of the applicant’s complaint concerning the alleged excessive length of the civil proceedings; Declares the remainder of the application inadmissible.       S. Dollé   F. Tulkens   Registrar   President