THIRD SECTION
FINAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 35968/02
by İsa ELAL and Others
against Turkey
The European Court of Human Rights (Third Section), sitting on 30 August 2007 as a Chamber composed of:
MrB.M. Zupančič, President,
MrC. Bîrsan,
MrR. Türmen,
MrsA. Gyulumyan,
MrE. Myjer,
MrDavid Thór Björgvinsson,
MrsI. Ziemele, judges,
and Mr S. Quesada, Section Registrar,
Having regard to the above application lodged on 8 August 2002,
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 1 June 2006,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
The applicants, Mr İsa Elal, Mr Bayram Kazaklı, Mr Cafer Sağır and Mr Rıdvan Gülfidan, are Turkish nationals who were born in 1961, 1955, 1954 and 1965 respectively. The first and second applicants live in Yalova and the third and fourth applicants live in Istanbul. They were represented before the Court by Ms S. Gürcan, a lawyer practising in Istanbul. The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 5 January 1983, 26 October 1982, 1 March 1981 and 9 November 1982 respectively the applicants were arrested on suspicion of membership of an illegal organisation.
On an unspecified date, the Istanbul Martial Law Court Public Prosecutor filed an indictment against the applicants and 132 other accused. The applicants were charged under Article 146 of the Criminal Code with attempting to undermine the constitutional order.
The applicants had legal representation during the proceedings. Mr İsa Elal was represented by Ms Nurcan Akça, Mr Bayram Kazaklı was represented by Ms Nesrin Dursun İnceoğlu and Mr Cafer Sağır and Rıdvan Gülfidan were represented by Mr Nebi Barlas.
The applicants were released pending trial.
On 27 September 1984 the Istanbul Martial Law Court convicted the applicants as charged.
On 6 June 1990 the Military Court of Cassation quashed the judgment of the first-instance court.
On 6 April 1993 the Istanbul Martial Law Court convicted Mr İsa Elal and Mr Bayram Kazaklı and acquitted Mr Cafer Sağır and Mr Rıdvan Gülfidan of the charges against them.
On 1 August 1994 the lawyer of the third and fourth applicants, Mr Nebi Barlas, appealed against the judgment of the Istanbul Martial Law Court in respect of his other clients who had been convicted. The names of the third and fourth applicants, who had been acquitted of the charges against them, were not listed in the appeal petition.
In their observations the Government submitted that the judgment of the Istanbul Martial Law Court was served on 13 June 1998 on Mr İsa Elal’s mother, on 9 June 1998 on Mr Bayram Kazaklı in person, and on 9 June 1998 on Mr Cafer Sağır’s mother. The Government further stated that Mr Rıdvan Gülfidan could not be found at his address and as he had failed to report his new address to the domestic court, the judgment in question was attached to the door of his last known address on 30 October 1998 in accordance with Article 35 § 2 of the Law on Notifications.
COMPLAINT
The applicants complained under Article 6 § 1 of the Convention that the length of the proceedings exceeded the reasonable time requirement.
THE LAW
In their observations, the Government argued that the application was introduced outside the six month time-limit.
The Court recalls that under Article 35 § 1 of the Convention, it may deal with an application within a period of six months from the date on which the final decision was taken. The six months period under Article 35 § 1 begins to run on the day after the date on which the final domestic decision was pronounced or was communicated to the applicant or his lawyer, or if pursuant to the domestic law and practice the applicant is entitled to ex officio with a copy of the judgment, from the date of service of the written judgment (see Kahramanoğlu v. Turkey (dec.), no. 61933/00, 10 October 2006). However, an application of this principle too rigid would be at odds with the legal security that the six-month rule aims at safeguarding.
In the instant case, the Court observes that the Istanbul Martial Law Court’s decision was delivered on 6 April 1993 and the application was introduced with the Court on 8 August 2002; i.e. more than nine years later.
The Court notes in the first place that it is clear from the case file that the lawyer who represented the third and fourth applicants during the domestic proceedings was indeed aware of the judgment in question on 1 August 1994 at the latest, since he filed an appeal against this judgment in respect of his other clients who had been convicted by the Istanbul Martial Law Court. Bearing in mind the Court’s case-law which states that the six month period runs from the date on which the applicant’s lawyer become aware of the domestic remedies, notwithstanding the fact that the applicant only became aware of the decision later (see Kılıç v. Turkey (dec.), no. 15363/04, 14 November 2006 and Ö.K. and others v. Turkey (dec.), no. 36091/97, 7 September 1999), the Court considers that the six month time-limit must be calculated from 1 August 1994, at the latest, in respect of Mr Rıdvan Gülfidan and Mr Cafer Sağır.
Furthermore, from the Government’s observations it is understood that the judgment of the Istanbul Martial Law Court dated 6 April 1993 was in fact notified to Mr İsa Elal’s mother on 13 June 1998, to Mr Bayram Kazaklı in person on 16 July 1998 and to Mr Cafer Sağır’s mother on 3 June 1998. As the authorities were not able to locate the new address of Mr Rıdvan Gülfidan, the judgment of the Istanbul Martial Law Court was attached to the door of his last known address. The Court observes that these notifications were carried out in accordance with the Law on Notifications. It is also noted that in their observations in reply the applicants did not challenge the Government’s submissions.
Finally, the Court finds that as the applicants, who were charged under Article 146 of the Criminal Code with attempting to undermine the constitutional order and risked imprisonment for life, allowed almost nine years to pass before finally attempting to inform themselves of the status of the criminal proceedings against them and having regard to the fact that they had legal representation during the domestic proceedings, the applicants and their legal representatives cannot be considered to follow the domestic proceedings with due diligence in order to keep themselves informed of the date on which the judgment was rendered.
Having regard to the above and in the absence of any satisfactory explanation to the contrary, the Court considers that since the application was introduced on 8 August 2002, it fails to comply with the six month time-limit, pursuant to Article 35 §§ 3 and 4 of the Convention.
Accordingly, it is appropriate to discontinue the application of Article 29 § 3 of the Convention and to reject the application.
For these reasons, the Court unanimously
Declares the remainder of the application inadmissible.
Santiago QuesadaBoštjan M. Zupančič
RegistrarPresident
Full & Egal Universal Law Academy