SECOND SECTION

DECISION

Application no. 45808/18 M.Ö. against Turkey

The European Court of Human Rights, sitting on 14 December 2021 as a Committee composed of:

Carlo Ranzoni, President, Egidijus Kūris, Pauliine Koskelo, judges, and Hasan Bakırcı, Deputy Section Registrar,

Having regard to:

the application (no. 45808/18) against Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 21 September 2018 by a Turkish national, Mr M. Ö., who was born in 1971 and lives in Strasbourg (“the applicant”);

the decision to give notice of the complaints concerning the applicant’s right to a fair hearing in the proceedings before the Constitutional Court and his right to presumption of innocence to the Turkish Government (“the Government”), represented by their Agent, Mr Nuri Uzun, Acting Head of the Department Head of Human Rights of the Ministry of Justice of the Republic of Turkey, and to declare inadmissible the remainder of the application;

the decision not to have the applicant’s name disclosed;

the decision to grant the applicant leave for self-representation;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT-MATTER OF THE CASE

1. The application concerns the alleged unfairness of the proceedings before the Constitutional Court of Turkey. The applicant who had resigned from the judiciary shortly before the attempted coup of 15 July 2016 became a suspect in a criminal investigation in respect of judges and prosecutors suspected of being members of an armed terrorist organisation (FETÖ/PDY) that had premediated the attempted coup. On 16 July 2016 the Judicial Council of Judges and Prosecutors (“HSK”) suspended 2,734 judges and prosecutors, including the applicant, on the basis of a strong suspicion that they were members of FETÖ/PYD. In the context of the criminal investigation, the applicant’s assets were preventively seized by a decision of the Magistrates Court of 29 July 2016. On the night of 13 August 2016 the Deputy President of HSK published a number of tweets, one of which referred to all judges and prosecutors who were suspended from their post as those whose membership of the armed terrorist organisation were “conclusively proven”. On 24 August 2016 the applicant was dismissed from the profession along with many other judges and prosecutors.

2. On 3 October 2016 the applicant’s counsel D.U. made an individual application on behalf of the applicant before the Constitutional Court, complaining, inter alia , about the HSK’s suspension and dismissal measures against the applicant despite the fact that he had resigned from the judiciary; the preventive seizure on his bank account and immovable properties; and his right to presumption of innocence on account of the impugned tweet of the Deputy President of HSK.

3. While the applicant’s individual appeal was pending examination before the Constitutional Court, D.U. was placed in detention on remand on 2 May 2017.

4. On 24 July 2017 the Constitutional Court declared the applicant’s appeal inadmissible on account of non-exhaustion of domestic remedies without specifically addressing his complaints.

5. On 8 August 2017 the notification of that decision was posted on the door of D.U.’s previous office address. The delivery slip indicated that the counsel had moved without notifying to the authorities his new address and that therefore the decision was deemed to have been served by default.

6. On 12 October 2017 D.U. was released from detention.

7. On 3 April 2018 the applicant obtained a copy of the decision of 24 July 2017 when he inquired through another lawyer about the status of his individual appeal with the Constitutional Court. The applicant identifies this date as the date when he learned the outcome of his individual appeal.

8. On 26 July 2018 the applicant’s lawyer D.U. obtained a copy of the Constitutional Court’s decision and requested a delivery receipt. The Constitutional Court complied with D.U.’s request but indicated that the official date of service of its decision of 24 July 2017 remained unchanged, that is to say, 8 August 2017.

9. The applicant lodged his application with the Court on 21 September 2018 and complained mainly about the Constitutional Court’s alleged failure to examine his Convention complaints relating to the seizure of his assets and his right to presumption of innocence on account of the HSK’s Deputy President’s tweet of 13 August 2016. He argued that the Constitutional Court’s generic reasoning in declaring his appeal inadmissible was not relevant to the factual circumstances of his case or the specific complaints he had raised in his appeal.

The COURT’S ASSESSMENT

10. The Court notes that in his application form the applicant also complained under the substantive limb of Article 1 of Protocol No. 1 about the preventive seizure measure and submitted observations in this respect, requesting the Court to restore this complaint to his application and to examine its admissibility and merits.

11. The Court however notes that the applicant’s complaint under Article 1 of Protocol No. 1, along with some of his other complaints, has already been declared inadmissible by the President of the Section sitting in a single-judge formation, in accordance with the Rules of Court. The Court is therefore precluded from examining that complaint at this stage. The Court further notes that there are no grounds to restore the complaint to the application.

12. The scope of the case is therefore limited to the complaints whose notice were given to the Government, that is to say, the compatibility of the Constitutional Court’s impugned decision with the obligation to give reasoning under Article 6 § 1 and the compatibility of the impugned tweet with the applicant’s right to presumption of innocence under Article 6 § 2 of the Convention.

13. The Government argued, inter alia , that the applicant had failed to lodge his application within six months from the date when the Constitutional Court’s impugned decision had been delivered to his counsel’s old office in accordance with the domestic law.

14. The applicant disagreed and maintained that since his counsel had been in detention on the date when the decision was considered to have been served at his previous address, the trigger date for the purposes of calculating the six-month time-limit was 3 April 2018, that is to say when his other lawyer inquired about the outcome of his application with the Constitutional Court and obtained a copy.

15. The Court reiterates that where an applicant is entitled to be served ex officio with a written copy of the final domestic decision, the object and the 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 , 29 August 1997, § 33, Reports of Judgments and Decisions 1997 ‑ V and Sabri GüneÅŸ v. Turkey [GC], no. 27396/06, § 53, 29 June 2012). Where the applicant has designated a lawyer to represent him, as in the instant case, the six-month period runs from the date on which the applicant’s lawyer was served with the final decision, notwithstanding the fact that the decision might only have been notified personally to the applicant later (see Otto v. Germany (dec.), no. 21425/06, 10 November 2009; Çelik v. Turkey (dec.), no. 52991/99, ECHR 2004-X; and Pejić v. Croatia (dec.), no. 66894/01, 19 December 2002). Furthermore, it is open to the Court to determine a date for the running of the six-month rule which is at variance with that identified by the respondent Government (see Ä°pek v. Turkey (dec.), no. 39706/98, 7 November 2000) or by the applicant.

16. In the present case the Court notes that the Constitutional Court’s decision was considered to have been served to the counsel’s previous address by means of posting the delivery notice on the door on 8 August 2017. While there is no dispute about the applicant’s counsel being held in detention on that date, the applicant challenged the validity and appropriateness of the method of service. In his view, since his counsel was in detention, the authorities could have easily discovered his counsel’s whereabouts on the National Judicial Network Server (“UYAP”) and the decision could be served to him in person in the detention centre. He relied on the relevant domestic provisions providing for service of documents to detainees in the detention centre.

17. The Court does not need to determine whether the service effectuated at the counsel’s previous office address was in conformity with domestic law for the purposes of Article 35 § 1 of the Convention because even assuming that it was not, the Court observes that the application was not introduced within six months from the time when the applicant’s counsel ought to have taken the steps to learn the status of the applicant’s appeal with the Constitutional Court. While the Court is mindful of the inherent difficulties the counsel might have faced in following up with his client’s cases, it is not prepared to accept that the mere fact of being in detention was per se sufficient to absolve him from professional duty of diligence towards his clients (see, mutatis mutandis, Karalar v. Turkey (dec.), no. 1964/07, § 64, 11 June 2019). Moreover, it appears that the counsel did not make any enquires with the Constitutional Court about the status of the applicant’s appeal in a timely manner. In other words, following his release from detention on 12 October 2017, the counsel did not make an inquiry with the Constitutional Court until 26 July 2018. Accordingly, irrespective of when the applicant himself became aware of the decision, the six-month time-limit has to be calculated at the latest from 13 October 2017, whereas the applicant lodged his application with the Court on 21 September 2018, that is, after 11 months and 8 days.

18. It follows that the application has been submitted too late and must be rejected, in accordance with Article 35 § 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 20 January 2022.

Hasan Bakırcı Carlo Ranzoni Deputy Registrar President