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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

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DANIS v. TURKEY

DANIS v. TURKEY

LEXI