SECOND SECTION

DECISION

Application no. 4592/12 Muhammed Fatih DEMİRTAŞ against Türkiye

The European Court of Human Rights (Second Section), sitting on 13 September 2022 as a Committee composed of:

Egidijus KÅ«ris , President,

Pauliine Koskelo ,

Gilberto Felici , judges,

and Dorothee von Arnim, Deputy Section Registrar,

Having regard to:

the application (no. 4592/12) against the Republic of Türkiye lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 15 December 2011 by a Turkish national, Mr Muhammed Fatih Demirtaş (“the applicant”), who was born in 1980 and lives in Antwerp, and was represented before the Court by Mr R. Jespers, a lawyer practising in Antwerpen;

the decision to give notice of the complaints concerning Articles 6, 10 and 11 of the Convention to the Turkish Government (“the Government”), represented by their Agent, Mr Hacı Ali Açıkgül, Head of the Department of Human Rights of the Ministry of Justice of the Republic of Türkiye, and to declare the remainder of the application inadmissible;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The application concerns the alleged unfairness of criminal proceedings owing to the domestic courts’ failure to deliver a reasoned judgment in respect of the applicant. It further pertains to alleged breaches of the applicant’s rights under Articles 10 and 11 of the Convention on account of his criminal conviction on the basis of acts that allegedly fell within the ambit of those Articles.

2. On 14 January 2010 the Malatya Assize Court convicted the applicant, under Article 314 § 1 of the Criminal Code, of leading an armed terrorist organisation, namely Hizbullah, and sentenced him to fifteen years’ imprisonment. On 15 June 2011 the 9th Criminal Division of the Court of Cassation upheld the applicant’s conviction.

3. On 23 May 2016 the 16th Criminal Division of the Court of Cassation quashed the 9th Criminal Division’s judgment pursuant to an objection lodged by the Principal Public Prosecutor at the Court of Cassation, an extraordinary legal remedy provided for in Article 309 of the Code of Criminal Procedure, and remitted the case to the trial court.

4. On 10 October 2016 the Elazığ Assize Court acquitted the applicant, that decision becoming final on 18 October 2016 in the absence of any appeal against it.

5. On 27 November 2017 the Gaziantep Regional Appeal Court partly allowed a compensation claim lodged by the applicant under Article 141 of the Code of Criminal Procedure in respect of pecuniary and non-pecuniary damage that he had sustained as a result of his arrest and pre-trial detention in the context of the above-mentioned criminal proceedings, and awarded him 16,514 Turkish liras. That judgment became final on the same date.

THE COURT’S ASSESSMENT

6. The applicant did not submit any observations on the admissibility or merits of the application.

7. The Government raised three different preliminary objections based on non-exhaustion of domestic remedies, lack of victim status and abuse of the right of individual application, and invited the Court to declare the application inadmissible on any one of those grounds. As regards the last ground, the Government submitted that the applicant had failed to keep the Court informed of the developments in his case, in particular the compensation he had obtained in connection with his arrest and pre-trial detention, which was crucial for the accurate examination of the application.

8. The Court reiterates that an application may be rejected as an abuse of the right of application under Article 35 § 3 of the Convention if, among other reasons, an applicant submits incomplete or misleading information, in particular if the information concerns the very core of the case and no sufficient explanation is given for the failure to disclose that information (see Gross v. Switzerland [GC], no. 67810/10, § 28, ECHR 2014, with further references, and Komatinović v. Serbia (dec.), no. 75381/10, 29 January 2013, with further references). The same applies if important new developments have occurred during the proceedings before the Court and where, despite being expressly required to do so by Rule 47 § 7 of the Rules of Court, the applicant has failed to disclose that information to the Court, thereby preventing it from ruling on the case in full knowledge of the facts (see Safaryan v. Armenia (dec.), no. 16346/10, 14 January 2020, and compare Belošević v. Croatia (dec.), no. 57242/13, 3 December 2019).

9. The Court notes that the present application concerns alleged violations of the Convention stemming from the criminal proceedings conducted before the Malatya Assize Court, which ended with final effect with the Court of Cassation’s decision on 15 June 2011, as well as alleged breaches of the applicant’s rights under Articles 10 and 11 of the Convention owing to the domestic courts’ decision to have regard to acts that allegedly fell within the ambit of those provisions when convicting him. However, the applicant’s conviction was quashed by the Court of Cassation on 23 May 2016 and he was eventually acquitted with final effect by the Elazığ Assize Court on 10 October 2016 (compare Kovačić and Others v. Slovenia [GC], nos. 44574/98 and 2 others, § 267, 3 October 2008).

10. Furthermore, the applicant obtained compensation in respect of his arrest and pre-trial detention, which had taken place in the context of the criminal proceedings which form the basis of the present application. The applicant did not contend that he had served a term of imprisonment as a result of his original conviction becoming final.

11. The Court learned of the above-mentioned compensation award for the first time in the Government’s observations of 20 December 2021.

12. In the Court’s view, the above-mentioned information which the applicant failed to submit concerned an important aspect of the application and was crucial for the assessment of its admissibility and merits. However, the applicant failed, without advancing any reason, to divulge that information (see Şevcenco and Timoşin v. the Republic of Moldova (dec.), nos. 35215/06 and 43414/08, 21 April 2020).

13. Accordingly, the Court concludes that the application must be rejected as an abuse of the right of individual petition pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 6 October 2022.

Dorothee von Arnim Egidijus KÅ«ris Deputy Registrar President