THIRD SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 6973/03
by Beşir GÖZEN
against Turkey
The European Court of Human Rights (Third Section), sitting on 29 April 2008 as a Chamber composed of:
Josep Casadevall, President,
Rıza Türmen,
Corneliu Bîrsan,
Boštjan M. Zupančič,
Egbert Myjer,
Ineta Ziemele,
Ann Power, judges,
and Stanley Naismith, Deputy Section Registrar,
Having regard to the above application lodged on 25 November 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 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 Beşir Gözen, is a Turkish national who was born in 1960 and lives in Istanbul. He was represented before the Court by Ms A. Bingöl, Ms G. Kartal and Mr A. Timur, lawyers practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 23 August 1983 the applicant was arrested.
On 16 September 1983 the Diyarbakır Martial Law Court remanded him in custody.
On 19 October 1983 the public prosecutor attached to the Diyarbakır Martial Law Court filed a bill of indictment against the applicant, along with other persons, and charged him with membership of the PKK (Workers’ Party of Kurdistan) under Article 168 § 1 of the former Criminal Code.
On 19 February 1985 the Diyarbakır Martial Law Court convicted the applicant as charged.
On 10 April 1990 the Military Court of Cassation quashed the judgment of the first-instance court in respect of some of the accused, including the applicant, and remitted the case to the Diyarbakır Martial Law Court.
Subsequent to the promulgation of Law no. 3953 on 27 December 1993, which abolished the jurisdiction of the Martial Law Courts, in 1994 the Diyarbakır Assize Court acquired jurisdiction over the case.
On 13 July 1998 the Diyarbakır Assize Court acquitted the applicant, holding that there was insufficient evidence to convict him.
The applicant claimed that the judgment of 13 July 1998 was never served on him.
According to the documents submitted by the respondent Government to the Court, on 31 July 1998 the authorities attempted to notify the applicant of the judgment of 13 July 1998. The applicant could not be found at the address he had given and the authorities were not able to locate his new address despite all efforts.
On 13 September 2002 the applicant applied to the registry of the Diyarbakır Assize Court and obtained a copy of the judgment of 13 July 1998.
COMPLAINTS
The applicant complained under Article 6 § 1 that the criminal proceedings brought against him had not been concluded within a reasonable time. In his observations submitted on 14 November 2007 following the communication of the application to the respondent Government, the applicant further complained that he had not had a fair trial by an independent and impartial tribunal and that he had been denied the right to a public hearing and the right to defend himself.
THE LAW
1. The applicant complained that the length of the criminal proceedings brought against him had exceeded the “reasonable time” requirement, in breach of Article 6 § 1 of the Convention.
The Government submitted that the relevant period of time began on 22 January 1990, when Turkey accepted the compulsory jurisdiction of the Court, and ended on 13 July 1998 upon the delivery of the final judgment. The proceedings had thus only lasted eight years and four months. They further maintained that in the circumstances of the present case the criminal proceedings could not be considered unreasonably long. In this respect, they referred to the complexity of the case and to the number of the applicant’s co-accused. The Government also submitted that the applicant had contributed to the prolongation of the proceedings through his own conduct, by failing to attend several hearings. In conclusion, the Government requested the Court to declare this complaint inadmissible as being manifestly ill-founded.
The Court does not consider it necessary to determine whether this complaint is manifestly ill-founded, as alleged by the Government, as it is inadmissible for the following reasons.
The Court reiterates 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-month 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 automatically entitled to be served 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, a rigid application of this principle would be at odds with the legal security that the six-month rule aims at safeguarding (see Elal and Others v. Turkey (dec.), no. 35968/02, 30 August 2007).
In the instant case, the Court observes that the Diyarbakır Assize Court’s decision was delivered on 13 July 1998 and this complaint was lodged with the Court on 25 November 2002, more than four years later.
The Court notes in the first place that the documents submitted by the respondent Government following the communication of the application reveal that the authorities had in fact attempted to notify the applicant of the Diyarbakır Assize Court’s judgment of 13 July 1998. The applicant, however, could not be found at the address he had given and the notification could therefore not be effected as the applicant had failed to report his new address to the authorities. The Court further notes that in his observations in reply, the applicant did not challenge the Government’s submissions regarding the circumstances surrounding the failed notification.
Finally, the Court finds that as the applicant, who was charged under Article 168 § 1 of the former Criminal Code with membership of an illegal terrorist organisation and who thereby risked a very heavy sentence, allowed over four years to pass before finally attempting to inform himself of the status of the criminal proceedings against him, he cannot be considered to have followed the domestic proceedings with due diligence in order to keep himself informed of the date on which the judgment was rendered (see Elal and Others, cited above and, by contrast, Mahmut Aslan v. Turkey, no. 74507/01, § 17, 2 October 2007). This finding becomes particularly compelling in view of the applicant’s failure to provide any satisfactory explanation in his observations as to why he waited until 13 September 2002 to inquire about the outcome of the proceedings.
Having regard to the above, the Court considers that the applicant failed to comply with the six-month rule as he lodged this part of the application on 25 November 2002. It follows that this complaint must be rejected under Article 35 §§ 3 and 4 of the Convention.
2. The applicant complained, in his submissions made on 14 November 2007, that he had not had a fair trial by an independent and impartial tribunal and that he had been denied the right to a public hearing and to defend himself.
The Court observes that the criminal proceedings against the applicant ended on 13 July 1998 (see above), whereas these complaints were lodged with the Court on 14 November 2007, more than six months later.
It follows that these complaints have been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
It is therefore appropriate to discontinue the application of Article 29 § 3 of the Convention and reject the application.
For these reasons, the Court unanimously
Declares the application inadmissible.
Stanley NaismithJosep Casadevall
Deputy RegistrarPresident
Full & Egal Universal Law Academy