FIRST SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 41055/98 by Bayram Nejdet SARIBEK against Turkey

The European Court of Human Rights (First Section), sitting on 9 September 2004 as a Chamber composed of:

Mr C.L. Rozakis , President , Mr P. Lorenzen , Mr G. Bonello , Mr R. Türmen , Mrs F. Tulkens , Mrs N. Vajić , Mrs S. Botoucharova, judges , and Mr S. Nielsen , Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 9 December 1997 ,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the Co urt ’ s partial decision of 13 June 2002 ,

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, Bayram Nejdet Sarı bek, is a Turkish national who was born in 1954 and was serving his prison sentence at the Muğla prison at the time of the application . He was repre sent ed before the Court by Mr Güney Dinç , a lawyer practising in Izmir .

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

1. Facts subm itted by the applicant ’ s lawyer

On 3 May 1995 the applicant was arrested and taken into custody on suspicion of theft of electronic materials from his place of work.

On 5 May 1995 he was brought before the public prosecutor and the Yatağan Magistrates ’ Court. The applicant denied the accusations against him. He was conditionally released.

On 26 May 1995 the public prosecutor filed a bill of indictment against the applicant for theft and requested that he be convicted and sentenced under Article 491 §§ 1 and 3 of the Criminal Code.

On 17 April 1996 the Yatağan Magistrates ’ Court convicted the applicant of theft a nd sentenced him to three years and six months ’ imprisonment.

On 29 April 1997 the Court of Cassation upheld the judgment of the Yatağan Magistrates ’ Court.

On 17 June 1997 the applicant was arrested by the police and placed in prison to purge his sentence.

2. Additional facts submitted by the Government

On 21 May 1997 the judgment of the Court of Cassation was sent to the registry of the Yatağan Magistrates ’ Court.

On 2 June 1997 the applicant ’ s representative filed a petition with the Yatağan Magistrates ’ Court and requested the re -opening of the proceedings and the suspension of the execution of the applicant ’ s sentence , pursuant to Articles 327 § 5 and 328 of the Criminal Code. In the aforementioned petition, the applicant ’ s representative stated, inter alia , the following :

“T he c onvict , Bayram Necdet Sarıbek , has been convicted on 17 April 1996 of theft ... On 29 April 1997 the Court of Cassation upheld the judgment (merits no. 1997/1331, judgment no.1432) ... ”

On 4 June 1997 Yatağan Magistrates ’ Court dismissed the applicant ’ s objections , against which decision t he applicant ’ s representative again objected .

On 17 June 1997 the applicant was arrested by the police and placed in prison to purge his sentence.

On 18 June 1997 the YataÄŸan Criminal Court of First Instance dismissed the objections of the applica nt .

The applicant asked the Minister of Justice to issue a written order dismiss ing the judgment of the YataÄŸan Criminal Court of First Instance.

On 23 September 1997 the Minister of Justice informed the MuÄŸla public prosecutor that the request of the applicant had been refus ed .

On 1 December 1997 the wife of the applicant requested a copy of the judgment of the Court of Cassation.

On 3 March 1998 the applicant ’ s representative before the European Court of Human Rights filed a petition with the Yatağan Magistrates ’ Court and asked whether the judgment of the Court of Cassation had been notified to the applicant or his lawyer.

On 6 March 1998 the Yatağan Magistrates Court informed the applicant ’ s representative that the judgment of 29 April 1997 had not been notified to the applicant or his lawyer.

COMPLAINTS

The applicant complain s under Article 6 §§ 1, 2 and 3 (b) of the Convention that he was denied a fair hearing before the domestic courts. He assert s that he was convicted of theft despite a lack of sufficient evidence proving that he had committed the offence in question . He further cont ends that the written opinion of the principal public prosecutor to the Court of Cassation was never served on him, thus depriving him of the opportunity to put forward his counter-arguments.

THE LAW

The applicant complain s that he was denied a fair hearing before the domestic courts. He asserts that he was convicted of theft despite a lack of sufficient evidence proving that he had committed the offence in question . He further contends that the written opinion of the principal public prosecutor to the Court of Cassation was never served on him, thus depriving him of the opportunity to put forward his counter-arguments. He relied on Article 6 §§ 1, 2 and 3 of the Convention, which provides as follows:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal ...

2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

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 ...”

1. The parties ’ submissions

The Government submit that the application should be declared inadmissible for failure to comply with the six ‑ month time-limit established under Article 35 § 1 of the Convention. With reference to the Court ’ s case-law, the Government maintain that the Court may only deal with a matter within a period of six months from the date on which the final dec ision was taken in domestic law or , alternatively , the date when the applicant or his representative learned of the final decision.

In this connection the Government point out that on 2 June 1997 the applicant ’ s representative in domestic law filed a petition with the Yatağan Magistrates ’ Court requesting the re- opening of the proceedings and the suspension of the execution of the applicant ’ s sentence , pursuant to Articles 327 § 5 and 328 of the Criminal Code. They therefore maintain that the applicant learned of the judgment of the Court o f Cassation prior to this date , and not on 17 June 1997 when the applicant was arrested and placed in prison to purge his sentence.

The applicant ’ s representative before the Court maintains that the applicant learned of the final decision of th e Court of Cassation on 17 June 1997 when he was i m prison ed . In this connection , he refers to the letter of 6 March 1998 of the Yatağan Magistrates Court wh ich stated that the judgment of 29 April 1997 of the Court of Cassation had not been notified to the applicant or to his representative. He further alleges that the documents submitted by the Government were not related to the Court of Cassation ’ s judgment but concern ed other issues .

2. The Court ’ s assessment

The Court re iterates that the purpose of the six-month time-limit is to ensure that cases raising issues under the Convention are dealt with within a reasonable time, to protect those concerned from periods of prolonged uncertainty and to provide the possibility of establishing the facts of the case in order to ensure a fair examination of the question at issue ( Hofstadter v. Austria (dec.), no. 25407/94, 12 December 2000 , and Hansen, Wass, Nielsen and Pedersen v. Denmark , no. 22507/93, Commission decision of 5 April 1995). The Court further notes that, since the six ‑ month rule serves the interests of legal certainty and marks out the temporal limits of the Court ’ s supervision, it is not open to the Court to set aside its application ( Walker v. the United Kingdom (dec.), no. 34989/97, Reports of Judgments and Decisions 2000-I).

The Court notes that the “final decision” within the meaning of Article 35 § 1 of the Convention was the judgment of the Court of Cassation on 29 April 1997 , dismissing the applicant ’ s appeal against the decision of the Yatağan Magistrates ’ Court. As regards the proceedings taken by the applicant in an attempt to have his case re-opened, the Court would add that a final decision given on an application for re-opening cannot be regarded as a “final decision” , within the meaning of Article 35 § 1 of the Convention, unless th ose proceedings are in fact re-opened and a new decision is given on the merits of the complaint , which forms the object of the application under the Convention (see Can v. Turkey (dec.) , no. 41588/98, 23 March 2004).

The Court re-affirms its practice that , where an applicant is entitled to be served ex officio 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 definite ly able to be informed of its content ( see among many others, the judgment in Seher Karatas v. Turkey , no. 33179/96, § 27, 9 July 2002, and Karatepe v. Tur key (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 Karatas v. Turkey , cited above , § 28) . However , the accused and his or her lawyer have the possibility to request a copy of the judgment from the moment when the judgment of the Court of Cassation i s sent back to the registry of the first instance court.

In the present case , the judgment of the Court of Cassation was at the disposal of the applicant and his lawyer as o f 21 May 1997 when the judgment was sent to the registry of the first - instance court.

T he Court further observes that prior to 17 June 1997 , the date invoked by the applicant as the date on which he became aware of the final decision of the Court of Cassation, the applicant ’ s representative before the domestic court had already lodged a petition with the Yatağan Magistrates ’ Court requesting the re-opening of the proceedings pursuant to Article 327 § 5 of the Criminal Court.

In the petition submitted by the applicant ’ s representative on 2 June 1997 to the Yatağan Magistrates ’ Court, the Court observes the following passage:

“ T he c onvict , Bayram Necdet Sarıbek , has been convi cted on 17 April 1996 for theft ... On 29 April 1997 the Court of Cassation upheld the judgment (merits no. 1997/1331, judgment no.1432) ... ”

In view of the above, there is no doubt that the petition submitted by the applicant ’ s representative concerned the same applican t, offence and court judgments. Accordingly, the Court finds that the applicant h ad learned of the judgment of the Court of Cassation at the latest on the afore mentioned date, whereas the application was lodged with the Court on 9 December 1997 , more than six months later.

It follows that this part of the application has been introduced outside the six-month time ‑ limit prescribed by Article 35 § 1 , and must be rejected pursuant to Article 35 § 4 of the Convention.

For these reasons, the Court unanimously

Declares the remainder of the application inadmissible.

Søren Nielsen Christos Rozakis Registrar President