Information Note on the Court’s case-law No. 145
October 2011
Akçiçek v. Turkey (dec.) - 40965/10
Decision 18.10.2011 [Section II]
Article 35
Article 35-1
Exhaustion of domestic remedies
Effective domestic remedy
Request to Principal Public Prosecutor at Court of Cassation to lodge application to have Court of Cassation’s decision set aside: ineffective remedy
Facts – In April 2009 an assize court found the applicant guilty of complicity in attempted murder and sentenced him to imprisonment. On 1 December 2009 the judgment was upheld by the Court of Cassation. On 31 December 2009 the applicant requested the Principal Public Prosecutor at the Court of Cassation to lodge an application to have the Court of Cassation’s decision set aside. His request was rejected.
Law – Article 35 § 1: The new Code of Criminal Procedure had provided for a new appeal procedure the conditions applicable to which were laid down in section 308 of law no. 5271, which entered into force on 1 June 2005. In the light of that provision, the Court noted that the said procedure, an application to have decisions of the Court of Cassation set aside, was an extraordinary remedy. In addition, the use of the procedure was left to the discretion of the Principal Public Prosecutor at the Court of Cassation and was not therefore a remedy directly accessible to individuals. The procedure was not subject to any specific time-limits when initiated on behalf of an accused. Accordingly, it could not be regarded as one of the domestic remedies to be exhausted within the meaning of Article 35 § 1 of the Convention.
The final domestic decision to be taken into account was the Court of Cassation’s judgment of 1 December 2009. No information had been provided about the date on which it had been notified. The applicant had appealed against that judgment to the Principal Public Prosecutor at the Court of Cassation on 31 December 2009, so he must already have been aware of it on that date.The present application had been lodged on 5 July 2010, more than six months later.
Conclusion: inadmissible (out of time).
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
Click here for the Case-Law Information Notes
Full & Egal Universal Law Academy