CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 9 avril 1997

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                         Application No. 24564/94                       by Ramazan DANIS                       against Turkey        The European Commission of Human Rights (First Chamber) sitting in private on 9 April 1997, the following members being present:              Mrs.   J. LIDDY, President            MM.    M.P. PELLONPÄÄ                  E. BUSUTTIL                  A. WEITZEL                  C.L. ROZAKIS                  L. LOUCAIDES                  B. MARXER                  B. CONFORTI                  I. BÉKÉS                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL                  M. VILA AMIGÓ            Mrs.   M. HION            Mr.    R. NICOLINI              Mrs.   M.F. BUQUICCHIO, Secretary to the Chamber.        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 26 April 1994 by by Ramazan Danis against Turkey and registered on 7 July 1994 under file No. 24564/94;        Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;        Having deliberated;        Decides as follows:   THE FACTS        The applicant, a Turkish citizen of Turkish origin, born in 1969 and resident in Diyarbakir, is a student. Before the Commission he is represented by Professor Kevin Boyle and Ms. Francoise Hampson, both university lecturers at the University of Essex.        The facts as submitted by the applicant may be summarised as follows.        On 27 November 1991 the applicant participated in a political demonstration at Dicle University where he had been studying. The demonstration lasted for approximately one hour.        On the same day, a report was drawn up and signed by three police officers on duty at the Dicle University campus. According to the report, during the demonstration, separatist propaganda leaflets were distributed and separatist slogans were shouted. A banner of ERNK (the political branch of the PKK) was displayed on the third floor of the University building. The officers stated that, among the demonstrators, they had identified, among others, the applicant.        In an indictment dated 18 February 1992, the Public Prosecutor at the Diyarbakir State Security Court charged the applicant and four other students under Article 8 of the Anti-Terror Law with disseminating separatist propaganda.        On 13 November 1992 the Court found the applicant guilty of dissemination of separatist propaganda and sentenced him to one year and eight months' imprisonment and a fine.        On 17 February 1993 the ninth Chamber of the Court of Cassation dismissed the appeal lodged by the applicant's legal representative.        On 27 May 1993 the Public Prosecutor at the Court of Cassation requested rectification of the decision dated 17 February 1993.        On 21 June 1993 the joint criminal chambers of the Court of Cassation (Yargitay Ceza Genel Kurulu) examined the case and dismissed the request for rectification. They held that there was no reason to question the reliability or validity of the evidence submitted to the court.        On 23 September 1993 the applicant's legal representative requested the reopening of the proceedings.        On 13 October 1993 the Diyarbakir State Security Court dismissed the request for reopening. It held that the grounds given in this respect had already been examined and rejected by the Court of Cassation and that there were no new facts justifying reopening the trial.        The applicant's legal representative filed an objection against this decision.        On 1 November 1993 the Diyarbakir State Security Court dismissed the applicant's objection and upheld the reasoning given in the decision dated 13 October 1993.   COMPLAINTS   1.    The applicant complains under Article 6 para. 1 of the Convention that the evidence relied upon by the national courts was so unreliable that his conviction and sentence constituted a violation of his right to a fair trial.   2.    The applicant also complains under Article 6 paras. 1 and 3 (c) of the Convention that the decision of the Diyarbakir State Security Court concerning his conviction and sentence was pronounced during a hearing at which neither he nor his legal representative were present.   3.    The applicant complains that his conviction constituted an unjustified interference with his freedom of expression and peaceful assembly as guaranteed by Articles 10 and 11 of the Convention.   THE LAW        The applicant alleges violations of Articles 6, 10 and 11 (Art. 6, 10, 11) of the Convention.        However, the Commission is not required to decide whether or not the facts alleged by the applicant disclose any appearance of a violation of these provisions as Article 26 (Art. 26) of the Convention provides that the Commission "may only deal with a matter ... within a period of six months from the date on which the final decision was taken".        The Commission recalls that the term "final decision" within the meaning of Article 26 (Art. 26) of the Convention must be considered as referring to the final decision resulting from the exhaustion of all "effective and sufficient" domestic remedies according to the generally recognised rules of international law (No. 10530/83, D.R. 42 p. 171 at p. 172). The Commission also recalls that a final decision given on an application for the reopening of proceedings cannot be regarded as a "final decision" within the meaning of Article 26 (Art. 26) of the Convention, unless the proceedings are in fact reopened and a new decision is given on the merits of the complaint which forms the object of the application to the Commission (No. 10431/83, Dec. 16.12.83, D.R. 35, p. 241 at p. 243; No. 23949/94 Dec. 18.5.94, D.R. 77, p. 140 at p. 142; No. 17128/90, Dec. 10.7.91, D.R. 71, p. 275 at p. 281).        In the present case, the Commission notes that, on 21 June 1993, the joint criminal chambers of the Court of Cassation examined the merits of the case and dismissed the request by the Chief Public Prosecutor at the Court of Cassation for rectification of the decision dated 17 February 1993 . The Commission further notes that the applicant's application for the reopening of the proceedings was dismissed by the Diyarbakir State Security Court and that the proceedings were not reopened.        Therefore, the final decision as regards the applicant's conviction was given by the joint criminal chambers of the Court of Cassation on 21 June 1993 which is more than six months before the date on which the application was lodged with the Commission. Moreover, the examination of the case does not disclose the existence of any special circumstances which might have interrupted or suspended the running of the six months' period.        It follows that the application has been introduced out of time and must therefore be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.        For these reasons, the Commission, unanimously,        DECLARES THE APPLICATION INADMISSIBLE.        M.F. BUQUICCHIO                               J. LIDDY         Secretary                                  President    to the First Chamber                       of the First Chamber