SECOND SECTION

DECISION

Application no. 21184/14 Kemal YİĞİT against Türkiye

The European Court of Human Rights (Second Section), sitting on 28 March 2023 as a Committee composed of:

Pauliine Koskelo, President, Lorraine Schembri Orland, Davor Derenčinović, judges,

and Dorothee von Arnim, Deputy Section Registrar,

Having regard to:

the application (no. 21184/14) 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 28 June 2011 by a Turkish national, Mr Kemal Yiğit (“the applicant”), who was born in 1982 and lives in Rize and who was represented by Ms E. Aslan, a lawyer practising in İzmir;

the decision to give notice of the complaints under Article 6 of the Convention concerning the alleged unfairness of criminal proceedings 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 against the applicant on account of the domestic courts’ failure to respect the principle of equality of arms as regards the provision and examination of the main item of evidence relied on in securing his conviction.

2. The applicant was accused and subsequently found guilty of placing a time-bomb device in a flower pot and leaving it in a street in İzmir on 31 March 2006. His conviction was based on a police criminal laboratory report dated 20 April 2006, which concluded that there had been two fingerprints on some duct tape used in the device and that they both belonged to the applicant. The applicant challenged that finding, citing the police criminal laboratory’s expert report dated 31 March 2006, which stated that there had only been one fingerprint on the duct tape. He complained that the photograph of the fingerprint annexed to that report had been neither provided to nor examined by the domestic courts despite his repeated requests. That report led the authorities to classify the bombing incident as having been carried out by a “ faili meçhul ” (unknown perpetrator).

3. Another police report dated 4 April 2006 indicated that there had been two fingerprints on the duct tape and that they belonged neither to the complainants (C.E. and M.E.) who had found the flower pot on the street and had taken it to their house before realising that it contained a bomb, nor to any other person whose fingerprints were in the police database.

4. It was the applicant’s contention that the police had planted his fingerprints on the duct tape, and he pointed out that the police had only identified the fingerprints on the duct tape used in the device as his after his arrest, despite the fact that the authorities had already had his fingerprints on record because of his arrest for an unrelated incident in 2002. The prints had been made when the police had blindfolded him at the time of his arrest and had pressed his fingers on a certain object.

5. On 4 June 2009 the Ä°zmir Assize Court found the applicant guilty of, among other things, carrying out activities aimed at bringing about the secession of part of the national territory contrary to Article 302 of the Criminal Code, and sentenced him to life imprisonment. One member of the trial court panel dissented, arguing that there was doubt about the reliability of the main evidence against the applicant.

6. On 8 December 2010 the Court of Cassation upheld the applicant’s conviction.

7. On 16 December 2010 the applicant’s defence lawyer sought an extraordinary remedy – as provided for in Article 308 of the Code of Criminal Procedure – by requesting that the Chief Public Prosecutor at the Court of Cassation lodge an objection against the above-mentioned judgment of the Court of Cassation seeking to have it reconsidered and quashed by that court.

8. On 4 February 2011 this request was refused.

9. On 28 June 2011 the applicant lodged his application with the Court.

THE COURT’S ASSESSMENT

10. The Government submitted that the applicant had failed to comply with the six-month time-limit laid down in Article 35 of the Convention. The applicant had learnt of the final domestic decision in his case (the Court of Cassation’s decision dated 8 December 2010) on 16 December 2010, as confirmed in the written submissions made by his lawyer when seeking to have recourse to an extraordinary remedy. However, the applicant lodged his application with the Court on 28 June 2011, that is to say after the expiry of the above-mentioned six-month time-limit. Accordingly, the Government invited the Court to declare the application inadmissible on that ground.

11. The applicant did not comment on this issue.

12. The general principles with regard to the six-month time-limit may be found in Sabri Güneş v. Turkey ([GC], no. 27396/06, §§ 39-42, 29 June 2012).

13. The Court further reiterates that the pursuit of remedies which do not satisfy the requirements of Article 35 § 1 of the Convention will not be considered by the Court for the purposes of establishing the date of the “final decision” or calculating the starting-point for the running of the six-month rule (see Savickis and Others v. Latvia [GC], no. 49270/11, § 131 in fine , 9 June 2022). The Court has also already held in Akçiçek v. Turkey ((dec.), no. 40965/10, 18 October 2011) that the extraordinary remedy provided for in Article 308 of the Code of Criminal Procedure – to which the applicant sought to have recourse in the present case – could not be regarded as one of the domestic remedies to be exhausted within the meaning of Article 35 § 1 of the Convention.

14. It follows that the Court of Cassation’s decision dated 8 December 2010 – by which the applicant’s conviction was upheld – is the final decision in the present case. It appears that the applicant’s lawyer had sufficient knowledge of that decision at the latest on 16 December 2010, when she filed a written submission with the Chief Public Prosecutor’s Office at the Court of Cassation seeking the annulment of the disputed decision of the Court of Cassation.

15. In view of the above, the Court holds that the six-month time-limit laid down in Article 35 of the Convention started to run on 17 December 2010 and expired at midnight on Thursday 16 June 2011. The application was lodged on 28 June 2011, that is, after the expiry of the said time-limit.

16. It follows that the application must be rejected in accordance with Article 35 § 4 of the Convention for failure to comply with the six-month time-limit laid down in Article 35 § 1 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 20 April 2023.

Dorothee von Arnim Pauliine Koskelo Deputy Registrar President