THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 33412/03 by Hasan ERDEMLÄ° against Turkey

The European Court of Human Rights (Third Section), sitting on 5 February 2004 as a Chamber composed of:

Mr G. Ress , President , Mr P. Kūris , Mr R. Türmen , Mr B. Zupančič , Mr J. Hedigan , Mrs M. Tsatsa-Nikolovska , Mrs H.S. Greve, judges , and Mr V. Berger , Section Registrar ,

Having regard to the above application lodged on 10 September 2003,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Hasan Erdemli, is a Turkish national, who was born in 1960 and was serving a prison sentence at the time of the application. He was represented before the Court by Mr M. Erdemli, his father.

A. The circumstances of the case

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

On 30 November 1994 the Ankara State Security Court convicted the applicant of membership of an illegal organisation, THKP/C-DEV-SOL, under Article 168 §1 of the Criminal Code.

On 4 January 1995 the applicant lodged an appeal against the Ankara State Security Court's judgment.

On 15 June 1995 the Court of Cassation upheld the judgment of 30 November 1994.

On 13 October 1995 the applicant introduced an application with the European Commission of Human Rights. He complained under Article 6 § 1 of the Convention that he was deprived of his right to a fair trial in that he had not been assisted by a lawyer during his questioning by the police, the public prosecutor and the magistrate.

On 21 August 2001, after an exchange of correspondence, the Registrar suggested to the parties that they should attempt to reach a friendly settlement within the meaning of Article 38 § 1 (b) of the Convention. On 13 September 2001 and on 17 September 2001 the Government and the applicant's representative respectively submitted formal declarations accepting a friendly settlement of the case.

On 30 October 2001 the Court struck the case out of the list.

On 23 January 2003 Law no. 4793 came into force, which provided, inter alia, re-opening of the criminal proceeding if the European Court of Human Rights holds in a final judgment that a decision in criminal proceedings has violated the European Convention on Human Rights or its protocols.

On 31 March 2003 the applicant requested the 1 st Chamber of the Ankara State Security Court to re-open the criminal proceedings against him.

On 9 April 2003 the 1 st Chamber of the Ankara State Security Court dismissed the applicant's request holding that the European Court of Human Rights had not found a violation of the European Convention of Human Rights concerning the criminal proceedings against the applicant.

On 28 April 2003 the applicant filed an objection with the 2 nd Chamber of the Ankara State Security Court against the decision of 9 April 2003.

On 8 May 2003 the 2 nd Chamber of the Ankara State Security Court dismissed the applicant's objection on the same grounds with the 1 st Chamber of the Ankara State Security Court.

B. Relevant domestic law

Article 327 of the Code of Criminal Procedure lists the circumstances in which “a person convicted in a judgment that has become final may be granted a re-trial”.

It was amended by Article 3 of Law no. 4793, which added a sixth set of circumstances in which the proceedings could be re-opened:

“where it has been held in a final judgment of the European Court of Human Rights that a decision in criminal proceedings was given in breach of the Convention for the Protection of Human Rights and Fundamental Freedoms or its Protocols. In such cases, an application to re-open the proceedings may be lodged within one year of the date on which the judgment of the European Court of Human Rights became final.”

Law no. 4793 came into force on 4 February 2003. By provisional Article 1 of the Law, Article 3 is applicable in only two sets of circumstances: where the Court has delivered a judgment that became final before the Law came into force, and where the Court delivers a final judgment on an application lodged after the Law came into force.

COMPLAINT

The applicant complained under Article 6 §§ 1 and 3 (c) of the Convention about the refusal of the Ankara State Security Court to re-open the criminal proceedings in connection with his complaint in his previous application that he had not been permitted the assistance of a lawyer during questioning by the police, the public prosecutor and the magistrate.

THE LAW

The applicant complained under Article 6 § § 1 and 3 (c) of the Convention about the refusal of the Ankara State Security Court to re-open the criminal proceedings in relation to his complaint in his previous application that he had not been assisted by a lawyer during questioning by the police, the public prosecutor and the magistrate. Article 6, in so far as relevant, provides as follows:

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

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

...

(c) to defend himself in person or through legal assistance of his own choosing...”

The Court reiterates that according to the established case-law, Article 6 does not apply to proceedings for the re-opening of criminal proceedings, given that someone who applies for her case to be re-opened and whose sentence has become final is not “charged with a criminal offence” within the meaning of Article 6 (see Fischer v. Austria (dec.), no. 27569/02, 6 May 2003).

The Court considers that proceedings under Article 327 § 6 of the Code of Criminal Procedure, concerning an application for a re-trial following the finding of a violation by the European Court of Human Rights, are akin to proceedings for the re-opening of criminal proceedings. They are brought by a person whose conviction has become final and do not concern the “determination of a criminal charge” but the question whether or not the conditions for granting a re-trial are met (see Fischer , cited above). Yet, in the instant case, the Court did not find a violation of the Convention which would enable the applicant to request re-opening of the criminal proceedings under Article 327 of the Code of Criminal Procedure. The Court struck the case out of the list following an agreement reached between the parties. Having regard to the established case-law of the Convention organs concerning the re-opening of criminal proceedings and given that the applicant's previous application was struck off by the Court following a friendly settlement reached between the parties, the Court concludes that Article 6 of the Convention does not apply to the proceedings in question.

It follows that the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

For these reasons, the Court unanimously

Declares the application inadmissible.

Vincent Berger Georg R ess Registrar President