THIRD SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 5684/02 by Seyithan ALPAR against Turkey

The European Court of Human Rights (Third Section), sitting on 27 May 2008 as a Chamber composed of:

Josep Casadevall , President, Elisabet Fura-Sandström , Corneliu Bîrsan , Boštjan M. Zupančič , Alvina Gyulumyan , Egbert Myjer , Işıl Karakaş , judges, and Santiago Quesada, Section Registrar ,

Having regard to the above application lodged on 5 December 2001,

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 22 March 2007 ,

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 applica nt, Mr Seyithan Alpar , is a Turkish national who was bo rn in 1971 and lives in Midyat district of the province of Mardin . He was represented before the Court by Mr F. Gümüş , a lawyer practising in Diyarbakır . The Turkish Government (“the Government”) were represented by their Agent.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

On 22 December 1992 the applicant was taken into police custody by police officers from the Anti-Terrorist Branch of the Nusaybin Security Headquarters on suspicion of membership of the PKK ( Workers ’ Party of Kurdistan ), an illegal organisation.

On 18 January 1993 the Diyarbakır State Security Court remanded him in custody . The public prosecutor filed a bill of indictment with the Diyarbakır State Security Court charging the applicant , under Article 125 of the Criminal Code, with member ship of a terrorist organisation and with having been engaged in acts aimed at the secession of a part of the territory of the State.

On 26 April 1993 the State Security Court commenced proceedings against the applicant and thirteen other suspects.

On 18 June 1999 Turkey ’ s Grand National Assembly amended Article 143 of the Constitution and excluded military members from State Security Courts. Following similar amendments made on 22 June 1999 to the Law on the State Security Courts, the military judge sitting on the Diyarbakır State Security Court hearing the applicant ’ s case was replaced by a civilian judge.

At the hearing of 8 July 1999 the military judge sitting on the bench of the Diyarbakır S tate Security Court was replaced by a civilian judge .

On 8 May 2000 the State Security C ourt found the applicant guilty as charged and sentenced him to life imprisonment. The applican t appealed against the judgment. The applicant ’ s representative asked the appeal court to hold a hearing, which was granted.

On 2 April 2001 the Court of Cassation , after hearing the applicant ’ s representative, closed the hearing and informed the parties that judgment would be pronounced on 11 April 2001 .

At the hearing of 11 April 2001 the Court of Cassation pronounced its judgment upholding the Diyarbakır State Security Court ’ s judgment. The applicant ’ s representative did not attend the hearing.

On 4 June 2001 the Court of Cassation ’ s judgment was placed in the Registry of the Diyarbakır State Security Court .

On 22 October 2001 the applicant ’ s representative requested a copy of the final judgment from the Registry of the Diyarbakır State Security Court ; it was given to him on the same day.

COMPLAINT S

The applicant complained under Article 6 § 1 of the Convention that he had been denied a fair hearing on account of the presence of a military judge on the bench of the Diyarbakır State Security Court, which tried and convicted him. He maintained under the same heading that the criminal proceedings brought against him had not been concluded within a “reasonable time”, in violation of Article 6 § 1 of the Convention.

THE LAW

The applicant complained under Article 6 § 1 of the Convention that he had been denied a fair hearing within a reasonable time by an independent and impartial tribunal.

The Government submitted that the applicant had failed to comply with the six months ’ rule laid down in Article 35 § 1 of the Convention. Referring to the Court ’ s decision in the case of Salih Özdemir v. Turkey (( dec .), no. 60688/00, 8 November 2005), they maintained that the six ‑ month time ‑ limit in the present case had started to run as from 11 April 2001, the date on which the Court of Cassation had pronounced its judgment. They noted that although the applicant ’ s representative had been informed at the hearing of 2 April 2001 that the Court of Cassation would pronounce its judgment at the hearing of 11 April 2001, he had failed to attend the latter hearing and had not made any attempt to obtain the final judgment until 22 October 2001.

The applicant maintained that the application was admissible.

The Court reaffirms its practice 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, Reports 1997-V, p. 1547, § 33). Whereas 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, the judgment in Seher Karataş v. Turkey , no. 33179/96, § 27, 9 July 2002, and Karatepe v. Turkey ( dec .), no. 43924/98, 3 April 2003).

The Court observes that, despite the wording of Article 33 of the Code of Criminal Procedure which stipulates that judgments and decisions of courts are to be served on the parties to the case, it is not the practice of the Criminal Divisions of the Court of Cassation to serve their decisions on defendants (see Seher Karataş v. Turkey , cited above, § 28). However, the accused and his or her lawyer may request a copy of the judgment from the moment when the judgment of the Court of Cassation is sent back to the registry of the first-instance court.

In the present case, the Court notes that the applicant was represented by a lawyer during the criminal proceedings against him. Although the Court of Cassation informed the parties that it would pronounce its judgment at the hearing of 11 April 2001, the applicant ’ s legal representative failed to attend that hearing. Furthermore, the judgment of the Court of Cassation was at the disposal of the applicant and his lawyer from 4 June 2001 when it was sent to the registry of the first-instance court. Accordingly, the six ‑ month time-limit started to run, at the latest, on 4 June 2001 (see, among other authorities, Yalçın v. Turkey , no. 8628/03, § 26, 3 May 2000). The applicant ’ s lawyer obtained a copy of the final judgment on 22 October 2001 and submitted the full application to the Court on 5 December 2001, which was a day after the expiry of the six months ’ time-limit.

It follows that the present application was submitted out of time. Accordingly, the Court upholds the Government ’ s objection and declares the application inadmissible in application of Article 35 §§ 1 and 4 of the Convention.

In view of the above, 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 Quesada Josep Casadevall Registrar President