AS TO THE ADMISSIBILITY OF
Application No. 24564/94
by Ramazan DANIS
against Turkey
The European Commission of Human Rights (First Chamber) sitting
in private on 9 April 1997, the following members being present:
Mrs. J. LIDDY, President
MM. M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
L. LOUCAIDES
B. MARXER
B. CONFORTI
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs. M. HION
Mr. R. NICOLINI
Mrs. M.F. BUQUICCHIO, 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 26 April 1994 by
by Ramazan Danis against Turkey and registered on 7 July 1994 under
file No. 24564/94;
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, a Turkish citizen of Turkish origin, born in 1969
and resident in Diyarbakir, is a student. Before the Commission he is
represented by Professor Kevin Boyle and Ms. Francoise Hampson, both
university lecturers at the University of Essex.
The facts as submitted by the applicant may be summarised as
follows.
On 27 November 1991 the applicant participated in a political
demonstration at Dicle University where he had been studying. The
demonstration lasted for approximately one hour.
On the same day, a report was drawn up and signed by three police
officers on duty at the Dicle University campus. According to the
report, during the demonstration, separatist propaganda leaflets were
distributed and separatist slogans were shouted. A banner of ERNK (the
political branch of the PKK) was displayed on the third floor of the
University building. The officers stated that, among the demonstrators,
they had identified, among others, the applicant.
In an indictment dated 18 February 1992, the Public Prosecutor
at the Diyarbakir State Security Court charged the applicant and four
other students under Article 8 of the Anti-Terror Law with
disseminating separatist propaganda.
On 13 November 1992 the Court found the applicant guilty of
dissemination of separatist propaganda and sentenced him to one year
and eight months' imprisonment and a fine.
On 17 February 1993 the ninth Chamber of the Court of Cassation
dismissed the appeal lodged by the applicant's legal representative.
On 27 May 1993 the Public Prosecutor at the Court of Cassation
requested rectification of the decision dated 17 February 1993.
On 21 June 1993 the joint criminal chambers of the Court of
Cassation (Yargitay Ceza Genel Kurulu) examined the case and dismissed
the request for rectification. They held that there was no reason to
question the reliability or validity of the evidence submitted to the
court.
On 23 September 1993 the applicant's legal representative
requested the reopening of the proceedings.
On 13 October 1993 the Diyarbakir State Security Court dismissed
the request for reopening. It held that the grounds given in this
respect had already been examined and rejected by the Court of
Cassation and that there were no new facts justifying reopening the
trial.
The applicant's legal representative filed an objection against
this decision.
On 1 November 1993 the Diyarbakir State Security Court dismissed
the applicant's objection and upheld the reasoning given in the
decision dated 13 October 1993.
COMPLAINTS
1. The applicant complains under Article 6 para. 1 of the Convention
that the evidence relied upon by the national courts was so unreliable
that his conviction and sentence constituted a violation of his right
to a fair trial.
2. The applicant also complains under Article 6 paras. 1 and 3 (c)
of the Convention that the decision of the Diyarbakir State Security
Court concerning his conviction and sentence was pronounced during a
hearing at which neither he nor his legal representative were present.
3. The applicant complains that his conviction constituted an
unjustified interference with his freedom of expression and peaceful
assembly as guaranteed by Articles 10 and 11 of the Convention.
THE LAW
The applicant alleges violations of Articles 6, 10 and 11
(Art. 6, 10, 11) of the Convention.
However, the Commission is not required to decide whether or not
the facts alleged by the applicant disclose any appearance of a
violation of these provisions as Article 26 (Art. 26) of the Convention
provides that the Commission "may only deal with a matter ... within
a period of six months from the date on which the final decision was
taken".
The Commission recalls that the term "final decision" within the
meaning of Article 26 (Art. 26) of the Convention must be considered
as referring to the final decision resulting from the exhaustion of all
"effective and sufficient" domestic remedies according to the generally
recognised rules of international law (No. 10530/83, D.R. 42 p. 171 at
p. 172). The Commission also recalls that a final decision given on an
application for the reopening of proceedings cannot be regarded as a
"final decision" within the meaning of Article 26 (Art. 26) of the
Convention, unless the proceedings are in fact reopened and a new
decision is given on the merits of the complaint which forms the object
of the application to the Commission (No. 10431/83, Dec. 16.12.83, D.R.
35, p. 241 at p. 243; No. 23949/94 Dec. 18.5.94, D.R. 77, p. 140 at p.
142; No. 17128/90, Dec. 10.7.91, D.R. 71, p. 275 at p. 281).
In the present case, the Commission notes that, on 21 June 1993,
the joint criminal chambers of the Court of Cassation examined the
merits of the case and dismissed the request by the Chief Public
Prosecutor at the Court of Cassation for rectification of the decision
dated 17 February 1993 . The Commission further notes that the
applicant's application for the reopening of the proceedings was
dismissed by the Diyarbakir State Security Court and that the
proceedings were not reopened.
Therefore, the final decision as regards the applicant's
conviction was given by the joint criminal chambers of the Court of
Cassation on 21 June 1993 which is more than six months before the date
on which the application was lodged with the Commission. Moreover, the
examination of the case does not disclose the existence of any special
circumstances which might have interrupted or suspended the running of
the six months' period.
It follows that the application has been introduced out of time
and must therefore be rejected under Article 27 para. 3 (Art. 27-3) of
the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy