SECOND SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 8428/02 by Levent ÖZTÜ RK against Turkey

The European Court of Human Rights (Second Section), sitting on 10 October 2006 as a Chamber composed of:

Mr J.-P. Costa , President, Mr A.B. Baka , Mr I. Cabral Barreto , Mr R. Türmen , Mr M. Ugrekhelidze , Mrs A. Mularoni , Ms D. Jočienė , judges, and Mrs S. Dollé , Section Regi s trar ,

Having regard to the above application lodged on 22 January 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 18 October 2005 ,

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 Levent Öztü rk , is a Turkish national who was born in 1982 and lives in Istanbul . He was represented before the Court by Mrs Z. Aytemur , a lawyer practising in Istanbul .

A. The circumstances of the case

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

On 25 June 1999 , following the statements of a detainee, Y.I., police officers from the Prevention of Terrorism Department of the Istanbul Security Directorate took the applicant into their custody, on suspicion of being a member of the PKK [1] . The medical report which was drafted prior to the applicant ’ s detention in police custody noted that there were no traces of ill-treatment on his body.

On 30 June 1999 both the applicant and Y.I. were examined by a doctor at the Istanbul Forensic Department. According to the medical report, there were no signs of blows on the applicant ’ s body. However, it was noted that he had complained of having been ill-treated. In the medical report drafted after the examination of Y.I., it was noted that there were several bruises on his body, with the conclusion that he should rest for two days.

On the same day the applicant was taken before the Public Prosecutor , where he denied all the accusations against him.

After being taken to the Public Prosecutor ’ s office, the applicant was brought before the investigating magistrate at the Istanbul State Security Court , where he was assisted by a lawyer. The applicant deni ed his statements given in police custody. The judge ordered his detention on remand.

On 1 July 1999 the Public Prosecutor at the Istanbul State Security Court filed an indictment against the applicant and Y.I., charg ing them with being members of the PKK and carrying out bomb attacks in four different public places, under Article 168 § 2 of the Criminal Code and Article 5 of the Law on the Prevention of Terrorism.

At the first hearing, which was held on 14 September 1999 before the Istanbul State Security Court, both the applicant and Y.I. deni ed all charges brought against them, as well as their earlier statements, alleging that they had been taken under duress.

On 10 October 2000 the court took the applicant ’ s last statements before the final judgment. The applicant deni ed the accusations once again and complained that there had been no evidence against him, except his statements taken under duress .

On 14 December 2000 the court found the applicant guilty as charged and sentenced him to imprisonment. The applicant appealed.

On 24 April 2001 the Chief Public Prosecutor at the Court of Cassation submitted his opinion on the me rits, which was not notified to the applicant.

On 20 June 2001 the Court of Cassation held a hearing during which the opinion of the Chief Public Prosecutor was read out. The applicant ’ s lawyer was present during the hearing.

On 28 June 2001 the Court of Cassation upheld the decision of the Istanbul State Security Court .

On 12 July 2001 the judgment of the Court of Cassation was deposited with the Registry of the Istanbul State Security Court .

COMPLAINTS

The applicant complains that he was subjected to various forms of ill-treatment in police c ustody, in violation of Article 3 of the Convention. Moreover , he contends , under Article 13 of the Convention that the authorities failed to react to his allegatio ns of ill-treatment in custody .

The applicant alleges , under Article 6 §§ 1 and 3 (b) and (c) of the Convention , that he did not have a fair hearing as he was not allowed to consult his lawyer during the preliminary investigation. Moreover, he complains that the submissions of the Chief Public Prosecutor at the Court of Cass ation were never served on him.

THE LAW

The applicant alleges that he was subjected to various forms of ill-treatment in police c ustody and that the authorities failed to investigate his allegations. He invokes Article 3 and 13 of the Convention, which read as follows:

Article 3

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

Article 13

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The applicant further complains , under Article 6 § § 1 and 3 (b) and (c) of the Convention, that he did not have a fair hearing as the submissions of the Chief Public Prosecutor at the Court of Cas sation were never served on him and that he was not allowed to consult his lawyer during the preliminary investigation. Article 6 provides, as relevant :

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”

3. Everyone charged with a criminal offence has the following minimum rights: ...

(b) to have adequate time and facilities for the preparation of his defence;

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; ... ”

The Government argue that the complaint under Article 3 of the Convention is inadmissible as the applicant failed to comply with the six-month rule laid down in Article 35 § 1 o f the Convention. They submit that, in the absence of domestic remedies, the six-month period runs from the date of the act which is the subject of the complaint. The applicant ’ s police custody ended on 30 June 1999 , whereas the application was introduced on 22 January 2002 .

Moreover, they contend that as the applicant ’ s lawyer was present during the hearing before the Court of Cassation, he was informed about the opinion of the Public Prosecutor which had not been communicate d to his client beforehand. They therefore argue that, regarding the complaint under Article 6 § 3 (b), the six-month time-limit envisaged by Article 35 § 1 of the Convention started to run from the date of the hearing. Since the application was lodged with the Court on 22 January 2002 , this complaint must be dismissed for being out of time.

The Court reiterates that, in the absence of domestic remedies, the six month period runs from the act complained of in the application. However, special considerations could apply in exceptional circumstances where an applicant first avails himself of a domestic remedy and only at a later stage becomes aware, or should have become aware, of the circumstances which make that remedy ineffective. In such a situation, the six-month period may be calculated from the time when the applicant becomes aware, or should have become aware, of these circumstances.

In the opinion of the Court, it was not unreasonable for the applicant to await the end of the criminal proceedings , before lodging his ill-treatment complaints with the Court . Similarly, t he Court observes that the six-month time limit for the applicant ’ s complaint s concerning his right to a fair hearing start ed to run after the criminal proceedings ended.

Nevertheless, t he Court reiterates that where, as in the present case, an applicant is not entitled to be served ex officio with a written copy of the final domestic decision, the date on which the final domestic decision was deposited with the registry of the first instance should be taken as the starting-point, being the date on which the applicant was definitively able to find out about the content of the final decision at the latest (see , Ipek v. Turkey ( dec .), no. 39706/98, 7 November 2000, and Yavuz and Others v. Turkey ( dec .), no. 48064/99, 1 February 2005). The Court notes that, in the instant case, the judgment of the Court of Cassation was deposited in the registry of the first instance court on 12 July 2001 , whereas the application was lodged with the Court on 22 January 2002 . It therefore holds that the application has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

Consequently, it is appropriate to end the application of Article 29 § 3 of the Convention to the present case.

For these reasons, the Court unanimously

Declares the application inadmissible.

S. Dollé J.-P. Costa Registrar President

[1] The Kurdistan Workers ’ Party.