SECOND SECTION
DECISION
Application no. 49801/09
Fırat ESMEZ
against Turkey
The European Court of Human Rights (Second Section), sitting on 4 December 2018 as a Committee composed of:
Ledi Bianku, President,
Jon Fridrik Kjølbro,
Ivana Jelić, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above application lodged on 31 August 2009,
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
1. The applicant, Mr Fırat Esmez, is a Turkish national, who was born in 1980 and lives in İzmir. He was represented before the Court by Ms N. Paşa, a lawyer practising in İzmir. The Turkish Government (“the Government”) were represented by their Agent.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. On 28 December 2005 the applicant and N. İ. were arrested in the course of an operation carried out against PKK (Kurdish Workers’ Party, an illegal armed organisation).
4. On the same date the police officers carried out a search in the house of the applicant and N. İ. According to the house search report issued by the police officers, two hand grenades, among other things, were found in the house. The applicant and N.İ. refused to sign that report.
5. On 30 December 2005 the applicant and N.İ. were questioned by the public prosecutor and investigating judge. On the same day the judge ordered their detention.
6. On 28 December 2006 İzmir Assize Court found the applicant guilty of being a member of a terrorist organisation and of illegal possession of explosive substances, and sentenced him to 9 years 9 months’ imprisonment together with a judicial fine of 1,500 Turkish Liras (TRY).
7. On 27 November 2008 the Court of Cassation upheld the trial court’s judgment.
8. On 13 February 2009 the case file was deposited with the İzmir Assize Court’s registry. According to the information in the case file, the judgment was not served on the applicant and/or to his lawyer. The applicant’s lawyer stated that she had learned about the final judgment on 17 July 2009.
9. On 29 July 2009, in accordance with Article 308 of the Code of Criminal Procedure, the applicant requested that the Principal Public Prosecutor at the Court of Cassation lodge an application to have the Court of Cassation’s decision set aside.
10. On 23 December 2009 the Principal Public Prosecutor at the Court of Cassation rejected the applicant’s application under Article 308 of the Code of Criminal Procedure, maintaining that the applicant’s arguments had already been examined by the Court of Cassation in its decision of 27 November 2008.
COMPLAINT
11. The applicant complained under Article 6 § 1 of the Convention about the alleged unlawful search of his house in the absence of his lawyer and the use of the evidence obtained therefrom in the criminal proceedings against him to secure his conviction.
THE LAW
12. The applicant alleged that the search of his house carried out in the absence of his lawyer was unlawful, and that the use of the evidence obtained therefrom in the criminal proceeding against him was in breach of Article 6 of the Convention.
13. The Government raised a preliminary objection arguing that the application had been introduced outside the six-months’ rule laid down in Article 35 § 1 of the Convention. In that connection, they submitted that the date on which the Court of Cassation deposited its judgment with the registry of the first-instance court should be taken as the start date of the six‑month time-limit and that therefore the application should be declared inadmissible in so far as it had been introduced out of time.
14. The applicant’s lawyer merely stated that she had become aware of the final decision on 17 July 2009 without furnishing the Court with any official document.
15. The Court reiterates that, where an applicant is automatically entitled to be served with a written copy of the final domestic decision, the object and purpose of Article 35 § 1 of the Convention are best served by counting the six-month period as running from the date of service of the written judgment (see Worm v. Austria, judgment of 29 August 1997, § 33, Reports 1997‑V). In cases where the domestic law does not provide for service, the Court considers it appropriate to take the date the decision was finalised as the starting point, that being when the parties were definitely able to be informed of its content (see, among many other authorities, İpek v. Turkey (dec.), no. 39706/98, 7 November 2000, and Karatepe v. Turkey (dec.), no. 43924/98, 3 April 2003).
16. The Court also recalls that although the wording of Article 35 of the Code of Criminal Procedure stipulates that judgments and court decisions are to be served on the parties to a case, it is not the practice of the Criminal Divisions of the Court of Cassation to serve their decisions on defendants (see İpek, cited above; Alpar v. Turkey (dec.), no.5684/02, 27 May 2008).
17. In the instant case, the “final decision” within the meaning of Article 35 § 1 of the Convention was the judgment of the Court of Cassation on 27 November 2008 and it was deposited with the registry of the Assize Court on 13 February 2009, whereas the application was lodged on 31 August 2009, more than six months later. Furthermore, the applicant’s lawyer did not put forward any specific circumstances which might have prevented her from observing the time‑limit laid down in Article 35 § 1 of the Convention (see Keskin v. Turkey (dec.), no. 12923/12, 8 July 2014).
18. In the circumstances of the present case, the Court finds no reason to depart from its established case-law cited above, and considers that the application should be rejected for non-compliance with the six-month time‑limit pursuant to Article 35 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 17 January 2019.
Hasan Bakırcı Ledi Bianku
Deputy RegistrarPresident
Full & Egal Universal Law Academy