FOURTH SECTION
FINAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 58336/00
by Kemal AKYÜZ
against Turkey
The European Court of Human Rights (Fourth Section), sitting on 4 January 2007 as a Chamber composed of:
SirNicolas Bratza, President,
MrJ. Casadevall,
MrG. Bonello,
MrR. Türmen,
MrK. Traja,
MrS. Pavlovschi,
MrL. Garlicki, judges,
and Mr T.L. Early, Section Registrar,
Having regard to the above application lodged on 7 December 1999,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,
Having regard to the partial decision of 31 March 2005,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Kemal Akyüz, is a Turkish national who was born in 1974 and lives in Bursa. He was represented before the Court by Mr K.T. Sürek, a lawyer practising in Istanbul.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 4 February 1994 the applicant was arrested by police officers from the anti-terror branch of the Samsun Security Directorate. On the same day he was detained on remand.
On 25 March 1994 the public prosecutor at the Ankara State Security Court filed a bill of indictment charging the applicant with membership of an illegal organisation, the DHKP-C, contrary to Article 168 § 2 of the Criminal Code.
On 7 December 1997 the Ankara State Security Court convicted the applicant, who was represented by four lawyers during the proceedings, as charged and sentenced him to fifteen years’ imprisonment.
On 2 December 1998 one of the applicant’s lawyers filed an appeal with the Court of Cassation against the judgment of 7 December 1997.
On 27 April 1999 the Court of Cassation upheld the first-instance court’s judgment.
On 20 May 1999 the Court of Cassation’s decision was deposited with the registry of the Ankara State Security Court.
On 1 September 1999 the committal order (müddetname) concerning the execution of his sentence was served on the applicant.
COMPLAINT
The applicant complained under Article 6 § 1 of the Convention that he had been denied a fair hearing on account of the presence of a military judge on the bench of the Ankara State Security Court.
THE LAW
The applicant alleged under Article 6 § 1 of the Convention that he was not tried by an independent and impartial court as there was a military judge sitting on the bench of the Ankara State Security Court.
The Government argued that the applicant’s complaint was inadmissible as the applicant had failed to comply with the six-month rule laid down in Article 35 § 1 of the Convention. They submitted in this connection that the Court of Cassation’s decision had been deposited with the registry of the Ankara State Security Court on 20 May 1999 whereas the application had been lodged with the Court on 7 December 1999.
The Court reiterates that where an applicant is not entitled to be served ex officio with a written copy of the final domestic decision and if she or he was represented by a lawyer during the domestic proceedings, as in the present case, the date on which the final domestic decision was deposited with the registry of the first-instance court should be taken as the starting-point, being the latest date on which the applicant or his or her representative was definitively able to find out about the content of the final decision at the latest (see Ipek v. Turkey (dec.), no. 39706/98, 7 November 2000; Yavuz and Others v. Turkey (dec.), no. 48064/99, 1 February 2005; and Levent Öztürk v. Turkey (dec.), no. 8428/02, 10 October 2006).
The Court observes that, in the instant case, the Court of Cassation’s decision was deposited with the registry of the first-instance court on 20 May 1999, whereas the application was lodged with the Court on 7 December 1999. It therefore finds that the application has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
Consequently, the application of Article 29 § 3 of the Convention to the present case should be discontinued.
For these reasons, the Court unanimously
Decides to discontinue the application of Article 29 § 3 of the
Convention to the case;
Declares the remainder of the application inadmissible.
T.L. EarlyNicolas Bratza
RegistrarPresident
Full & Egal Universal Law Academy