SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 50148/99 
by Mehmet SAYDAM 
against Turkey

The European Court of Human Rights (Second Section), sitting on 29 November 2005 as a Chamber composed of:

Mr J.-P. Costa, President
 Mr A.B. Baka
 Mr R. Türmen
 Mr K. Jungwiert
 Mr M. Ugrekhelidze
 Mrs A. Mularoni, 
 Mrs E. Fura-Sandström, judges
and Mrs S. Dollé, Section Registrar,

Having regard to the above application lodged on 23 June 1999,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together.

Having deliberated, decides as follows:

THE FACTS

The applicant, Mehmet Saydam, is a Turkish national who was born in 1948 and lives in İstanbul. He is represented before the Court by Mr O. Akçay, a lawyer practising in Ankara.

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicant ran a tourist agency at the time of the events.

On 9 August 1996 the police found 81 kilograms of heroin stashed in a lorry driven by Mr M.A. The owner of the lorry, Mr I.Ç. acknowledged having committed an offence and claimed that the substance in question, destined for the United Kingdom, had been supplied by the applicant. He further confessed to hiding twelve packets of heroin in his house at the request of the applicant.

The applicant was on the run until 4 June 1997 when he presented himself before the public prosecutor at the İstanbul State Security Court (hereafter “the public prosecutor”).

On 21 August 1998 the public prosecutor filed a bill of indictment against Mr M.A. and Mr I.Ç, as well as two other suspects, for drug trafficking.

On 6 June 1997 the public prosecutor filed a bill of indictment accusing the applicant of drug trafficking. He requested that the applicant be convicted and sentenced under Article 403 of the Criminal Code and Article 11 of Law no. 2918.

On 17 June 1997 the İstanbul State Security Court decided to join the cases.

The applicant denied the accusations against him. Mr I.Ç. also changed his statements and submitted that the applicant was not involved in drug trafficking.

On 12 March 1998 the İstanbul State Security Court convicted the applicant as charged, and sentenced him to seventeen years and six months’ imprisonment and a fine of 8,204,125,000 Turkish liras.

By letters dated 5 May and 6 August 1998, Mr I.Ç. wrote to the public prosecutor, claiming that, as he had feared for his life, he did not give the names of the real culprits and that he felt remorse because the applicant was convicted of an offence which he had not committed.

On 1 October 1998 the Court of Cassation held a hearing.

On 19 November 1998 the Court of Cassation upheld the judgment of the first-instance court. The applicant and his lawyer were not present.

On 17 December 1998 the judgment of the Court of Cassation was recorded in the log held by the Registry of the İstanbul State Security Court.

On 7 January 1999 the applicant filed a petition with the Court of Cassation, pursuant to the extraordinary objection procedure, requesting that the judgment of the Court of Cassation be quashed.

On 14 January 1999 the applicant filed a petition with the principal public prosecutor’s office and requested the rectification of the judgment of the Court of Cassation.

On 18 February 1999 the principal public prosecutor at the Court of Cassation dismissed the applicant’s request.

On 9 June 2003 the execution of the applicant’s sentence was suspended on grounds of ill-health.

COMPLAINTS

The applicant complained under Article 6 §§ 1 and 2 of the Convention that he did not receive a fair hearing by an independent and impartial tribunal. He asserted in this regard that one of the three members of the İstanbul State Security Court was a military judge. He submitted that the domestic court did not conduct an adequate investigation into the circumstances of his case and that the judgment of this court was not sufficiently reasoned. He further complained that his right to be presumed innocent had been infringed and that he had not had the possibility to cross-examine witnesses.

The applicant complained under Article 7 of the Convention that he was convicted of an offence that he did not commit.

THE LAW

The applicant complained that he did not receive a fair hearing by an independent and impartial tribunal on account of the presence of the military judge on the bench of the State Security Court. In addition, the applicant complained that the fairness of the proceedings was undermined by other shortcomings. He further complained that his right to be presumed innocent had been infringed and that he was convicted of an offence which he had not committed. He relied on Articles 6 §§ 1 and 2 and 7 of the Convention. The relevant parts of which provide as follows:

Article 6

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal ...

2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

Article 7

“1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.”

The Court notes that the “final decision” within the meaning of Article 35 § 1 of the Convention was the judgment of the Court of Cassation on 19 November 1998, dismissing the applicant’s appeal against the decision of the İstanbul State Security Court. It observes that an application for rectification of a judgment under Turkish law is a special remedy against decisions of the Court of Cassation by which that court can be requested to review its own judgments. Under Article 322 of the Code of Criminal Procedure, only the principal public prosecutor can use that remedy, either of his own motion or at the request of the convicted person. It is not therefore a domestic remedy directly accessible to persons tried by the criminal courts, and does not constitute an effective remedy for the purposes of the Convention, unless it is successful and results in a re-opening of proceedings (see, among other authorities, Çıraklar v. Turkey, judgment of 28 October 1998, Reports of Judgments and Decisions 1998-VII, pp. 3070-71, §§29-32).

The Court re-affirms its practice, in cases where the domestic law does not provide for the service of a written copy of a final domestic decision, that the six month period laid down in Article 35 § 1 begins to run from the date when the decision was finalised, i.e. when the parties were definitely able to be informed of its contents (see, among many others, Seher Karataş v. Turkey, no. 33179/96, § 27, 9 July 2002, and Karatepe v. Turkey (dec.), no. 43924/98, 3 April 2003).

The Court observes that, despite the wording of Article 33 of the Code of Criminal Procedure which stipulates that judgments and decisions of courts are to be served on the parties to the case, it is not the practice of the Criminal Divisions of the Court of Cassation to serve their decisions on defendants (see Seher Karatas, cited above, § 28). However, the accused and his or her lawyer have the possibility to request a copy of the judgment from the moment when the judgment of the Court of Cassation is sent back to the registry of the first-instance court.

In the present case, the judgment of the Court of Cassation was at the disposal of the applicant and his lawyer as of 17 December 1998 when the judgment was sent to the registry of the first-instance court. However, the application was lodged with the Court on 23 June 1999, more than six months later.

In these circumstances, the Court concludes that the application has been introduced out of time, and must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention. It is appropriate, therefore, to discontinue the application of Article 29 § 3 of the Convention in the present case.

For these reasons, the Court unanimously

Declares the remainder of the application inadmissible.

S. Dollé J.-P. Costa  
 Registrar President

SAYDAM v. TURKEY DECISION


SAYDAM v. TURKEY DECISION