CASE OF SELEK v. TURKEY
Preliminary objection dismissed (exhaustion);Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
5. The applicant was born in 1953 and lives in Istanbul. 6. The applicant was a civil servant at the Istanbul Municipality. 7. On 22 December 1994 he was arrested by police officers from the Istanbul Security Directorate on suspicion of forgery. He admitted to the charges before the police. 8. On 26 December 1994 the applicant was brought before the investigating judge at the Istanbul Magistrate’s Court, who ordered his detention on remand. 9. On 2 January 1995 the public prosecutor filed an indictment with the Istanbul 7th Criminal Court against the applicant and three co-accused (O.I., M.T. and N.S.), requesting that they be punished for committing forgery under Articles 503 § 1 and 522 of the Criminal Code. The public prosecutor further decided that the Law on the Prosecution of Civil Servants (Memurin Muhakemeti Kanunu) did not apply to this case as the offence was ordinary. 10. On 24 January 1995 the 7th Criminal Court commenced the proceedings. On 3 February 1995 it heard statements from the applicant and two other co-defendants. The applicant denied the charges against him, alleging that his statement in the police station had been extracted from him under duress. At the following hearing on 24 February 1995, the court released the applicant and two co-accused from detention on remand. It further decided to prolong, in absentia, the arrest warrant issued in respect of O.I. as he had absconded. 11. On 10 March 1995 the Istanbul public prosecutor launched an investigation concerning the applicant’s alleged abuse of office in relation to the forgery. During the course of the investigation, the public prosecutor decided that he had no jurisdiction over the case as the applicant was a civil servant. Accordingly, he sent the file to the Istanbul Provincial Administrative Council (İstanbul İl İdare Kurulu), pursuant to the provisions of the Law on the Prosecution of Civil Servants, in order to seek authorisation to prosecute the applicant. 12. On 7 December 1995 the Provincial Administrative Council decided not to authorise the applicant’s prosecution. 13. On 20 January 1998 the Supreme Administrative Court put aside this decision and ordered that the applicant be tried. Subsequently, on 25 March 1998 the public prosecutor filed another indictment with the Istanbul 11th Criminal Court accusing the applicant of abuse of office. 14. On 10 December 1998 the 11th Criminal Court decided to join the case pending before it to the proceedings before the 7th Criminal Court, and sent the case file to the latter. 15. In the course of the proceedings, during the ten hearings held between 5 March 1996 and 3 November 1998, the applicant’s lawyer explicitly asked the court to separate his client’s case from the others and to conclude it. The court each time rejected these requests given the search for O.I., and decided to postpone the hearings, awaiting the outcome of the arrest warrant. In particular, at one of these hearings on 25 November 1997, the applicant’s lawyer informed the court that he had heard that O.I. had escaped abroad. He further stated that his client had been victimised as a result of the prolongation of the proceedings. 16. On 20 May 1999 the court decided that the criminal proceedings concerning O.I. should proceed separately as he could not be found. The same day the court convicted the applicant and sentenced him to ten months’ imprisonment and a fine. The imprisonment was then commuted to a fine and its execution was suspended in accordance with Section 6 of Law no. 647 (the Law on the execution of sentences). 17. Both the applicant and the public prosecutor appealed against the decision, the applicant alleging that there was no concrete evidence on which he could be convicted. 18. On 27 May 2002 the Court of Cassation rejected the reasons for appeal but quashed the judgment on account of a miscalculation of the amount of the fine imposed on the applicant. The Court of Cassation did not order a retrial, but corrected the amount by reducing the fine and upheld the judgment with this amendment.