CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 18 octobre 2022

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s5FFF0A77 { margin-top:0pt; margin-bottom:0pt; font-size:1pt } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s9F46BEC9 { margin-top:14pt; margin-bottom:12pt; text-align:justify; font-size:14pt } .s7ED160F0 { text-decoration:none } .sC36A6361 { font-family:Arial; color:#000000 } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s84651E4E { margin-top:14pt; margin-left:14.2pt; margin-bottom:3pt; text-align:justify } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .s4598CDF { width:70.9pt; display:inline-block } .sB6A7F5BF { width:17.54pt; display:inline-block } .sCEDB100B { width:137.09pt; display:inline-block } .s5D826FD4 { width:25.88pt; display:inline-block } .s1B61D60 { width:156.43pt; display:inline-block }   SECOND SECTION DECISION Application no. 61831/12 Barış KAYA against Türkiye   The European Court of Human Rights (Second Section), sitting on 18   October 2022 as a Committee composed of:   Egidijus Kūris , President ,   Pauliine Koskelo,   Gilberto Felici , judges , and Dorothee von Arnim, Deputy Section Registrar, Having regard to: the application (no.   61831/12) 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 22 September 2012 by a Turkish national, Mr Barış Kaya (“the applicant”), who was born in 1991 and lives in Mardin and who was represented by Ms S. Dursun , a lawyer practising in Istanbul; the decision to give notice of the complaint concerning the alleged unfairness of criminal proceedings on account of the applicant’s conviction on the basis of a presumption of guilt 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.     On 22 December 2011 the Fifth Division of the Diyarbakır Assize Court, which had special jurisdiction to hear cases relating to the aggravated crimes specified in Article 250 § 1 of the Code of Criminal Procedure, as in force at the material time, found the applicant guilty of the following offences and sentenced him as follows: (i)     six years and three months’ imprisonment for committing an offence on behalf of an armed terrorist organisation of which he was not a member, on the grounds that he had taken part in two demonstrations in response to general calls issued by the PKK (the Workers’ Party of Kurdistan), under Article   220 § 6 of the Criminal Code; (ii)     ten months’ imprisonment for each of two counts of obstructing a public officer in the execution of his duty by using force, specifically by throwing stones, under Article 265 § 1 of the Criminal Code; (iii)     ten months’ imprisonment for each of two counts of disseminating propaganda in support of a terrorist organisation, under section 7(2) of the Prevention of Terrorism Act (Law   no.   3713), on the grounds that he had covered his face and head during the demonstrations; and (iv)     five months’ imprisonment for each of two counts of participating in a public demonstration while carrying a stone, under section 33(1) of the Marches and Demonstrations Act (Law   no.   2911). 2.     On 25 May 2012 the Court of Cassation upheld the trial court’s judgment. 3.     On 27 August 2012 the Court of Cassation’s judgment was deposited with the registry of the trial court. 4.     By a written submission dated 30 August 2012, the applicant’s lawyer applied to the trial court and requested that the execution of the applicant’s convictions be stayed under the provisions of Law no.   6352, which had entered into force on 5 July 2012, and which provided for such a possibility in respect of convictions that have become final. On 14 September 2012 the trial court dismissed that request, holding that the applicant’s convictions fell outside the scope of that Law. 5.     By a one-page letter dated 22 September 2012 and dispatched on the same date, the applicant’s lawyer lodged an application with the Court wherein she indicated, inter alia , (i)     the date and number of the bill of indictment filed against the applicant; (ii)     the names of the offences on the basis of which he had been arrested and placed in pre-trial detention; (iii)     the name of the court that had convicted him and the total length of his sentence; (iv)     the date on which the Court of Cassation had upheld his conviction; and; (v)     her explanation that it had been deemed necessary to lodge an application with the Court, as the applicant had been of the view that his rights under Articles 5, 6 and 14 of the Convention had been violated. An authority form was enclosed with that letter whereby the applicant had authorised his lawyer to lodge the application with the Court. 6.     By a letter dated 7 March 2013 and dispatched on the same date, the applicant’s lawyer submitted the completed application form, which contained, inter alia , the applicant’s complaint that the domestic courts had interpreted the criterion of “committing an offence on behalf of a criminal organisation” under that provision as including, in particular, participation in a demonstration in respect of which the PKK had issued general calls, without the need to demonstrate an individual link between the accused and the armed terrorist organisation. The applicant thus alleged that that interpretation, which was based on presumptions, had breached his right to a fair trial under Article   6 of the Convention. THE COURT’S ASSESSMENT 7.     The Government submitted that the applicant had failed to comply with the six-month time-limit set out in Article 35 § 1 of the Convention, because he had failed to raise his complaint of a breach of Article 6 of the Convention owing to his conviction on the basis of a presumption of guilt within six months after 27 August 2012 – the date on which the Court of Cassation’s judgment dated 25 May 2012 had been deposited with the registry of the trial court. Indeed, the applicant had raised that complaint only on 7 March 2013, given that his letter dated 22 September 2012 contained no such complaint. Accordingly, the Government invited the Court to declare the application inadmissible for non ‑ compliance with the six -month rule. 8.     The applicant did not comment on this issue. 9.     The Court reiterates that according to its practice at the time the present application was lodged, the running of the six-month period under Article   35   §   1 of the Convention was, as a general rule, interrupted by the first letter from an applicant denoting an intention to lodge an application and giving some indication of the nature of the complaints made (see Allan v. the United Kingdom (dec.), no. 48539/99, § 2, 28 August 2001). As regards complaints not included in the initial communication, the running of the six-month time-limit is not interrupted until the date when the complaint is first submitted to the Court (see Božinovski v. the former Yugoslav Republic of Macedonia (dec.), no. 68368/01 , 1 February 2005). Lastly, the mere fact that an applicant or his lawyer relies on Article 6 is not sufficient to cover all subsequent complaints made under that provision (compare Zervakis v.   Greece (dec.), no.   64321/01 , 17 October 2002, and Allan , cited above, §   2). 10.     In the present case, the Court notes that the applicant did not contest the Government’s contention that the Court of Cassation’s judgment dated 25   May 2012 had been deposited with the registry of the trial court on 27   August 2012, despite the fact that it was not supported by any documentary evidence. It is also significant that at no point during the proceedings before the Court did the applicant indicate the date on which he had been apprised of the Court of Cassation’s judgment. 11.     Be that as it may, the Court also notes that by his written submissions dated 30 August 2012 the applicant’s lawyer asked the trial court to stay the execution of the sentences imposed on the applicant in the light of the provisions of Law no. 6352, which had brought about such a possibility on its entry into force on 5 July 2012. The Court thus concludes that the applicant must have been aware of the final domestic judgment at the latest on 30   August 2012. In other words, the six-month time-limit started running on 31   August 2012 and expired at midnight on Thursday 28 February 2013 (compare Sabri Güneş v. Turkey [GC], no. 27396/06, §§ 44 and 45, 29   June 2012). 12.     The question therefore arises as to when the running of the six-month time-limit was interrupted in the present case. In that connection, the Court notes that even though the applicant’s lawyer at the time submitted an introductory letter dated 22 September 2012 in which she alleged violations of Articles 5, 6 and 14 of the Convention, no details were given for those complaints other than a general statement that the applicant’s rights under those provisions had been breached during the criminal proceedings against him. 13.     The Court cannot therefore conclude that the above-mentioned letter included even a summary version of any complaint concerning the operation of an unjustified presumption of fact in criminal cases concerning the offence provided for in Article 220 § 6 of the Criminal Code, which was the only complaint that was notified to the Government on 15 March 2021. Indeed, this complaint as well as the other complaints indicated in the introductory letter of 22 September 2012 were raised for the first time in the application form dated 7 March   2013, meaning that the running of the six ‑ month time ‑ limit was interrupted only on that date, that is, after the expiry of the time ‑ limit in question. 14.     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 24 November 2022.     Dorothee von Arnim   Egidijus Kūris   Deputy Registrar   President