REPUBLIC
OF TURKEY
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CONSTITUTIONAL
COURT
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SECOND SECTION
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DECISION
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Application No: 2013/2001
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Date of Decision: 16/5/2013
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SECOND SECTION
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DECISION
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President
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:
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Alparslan ALTAN
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Members
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:
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Serdar ÖZGÜLDÜR
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|
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Osman Alifeyyaz
PAKSÜT
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Recep KÖMÜRCÜ
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Engin YILDIRIM
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Rapporteur
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:
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Melek ACU
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Applicant
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:
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Mehmet MERCAN
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Counsel
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:
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Att. Mustafa Haki OKUDUCU
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I.
SUBJECT OF APPLICATON
1. The applicant has claimed that the
verdict of conviction ruled by the
5th Assize Court of Bakırköy where
he was tried for the crimes
of premeditated murder, attempt to premediated
murder,illicitness to the Code No. 6136 and dated 10/7/1953 on Firearms and Knives
and Other Tools is in violation of his constitutional rights for restrainting
his rights of defense.
II.
APPLICATION PROCESS
2. The application was lodged on 11/3/2013 via the 5th Assize
Court of Bakırköy. As a result of the
preliminary examination of the petition and
its annexes thereof as conducted in terms of administrative aspects, it was found out that
there was no deficiency that
would prevent submitting thereof to the Commission.
3. It was decided
on 14/5/2013 by the Third Commission of the Second Section that the
admissibility examination
be carried out by the Section,
that the file be sent to the Section
as per paragraph (3) of article 33 of the Internal Regulation of the Constitutional Court, since a
resolution was required in order for a ruling to
be made regarding the application.
III. FACTS AND CASES
A.
Facts
4. The facts in the
petition of application are as follows:
5. A public action was
filed against the applicant with
the indictment dated 27/5/2010 and No:
M.2010/56288 of the Chief Public Prosecutor's Office in
Bakırköy for crimes of premeditated murder, attempt to premeditated
murder and carrying weapon without license.
6. The 5th Assize Court of Bakırköy,
with its decision No. M.2010/214, D.2011/294 dated
13/10/2011 has decided that
the applicant be convicted for the
alleged crimes.
7. Upon the bill
of review, the decision that was
approved with the writ No: M.2012/1242,
D.2012/9080 dated 5/12/2012 of the
1st Criminal Chamber of the Supreme Court of Appeals,, was finalized
on the same date.
8. The applicant has made an application on the date of 24/12/2012 to the Office of the Chief Prosecutor
of the Republic at the Supreme Court of Appeals for the
pursuance of the remedy of objection in compliance with article 308 of the Code of Criminal Procedure No. 5271 and dated 4/12/2004, the Office of the Chief Prosecutor
at the Supreme Court of Appeals has ruled in its decision No: KD.2012/42061 and
dated 24/1/2013 that such request be dismissed with the justification that the legal and the de facto circumstance to require an objection was missing.
B.
Relevant Law
9. Article 8 of the ‘Law on the Effectiveness
of the Turkish Civil Code and
the Procedure of Its Application’ No: 5320 dated
23/3/2005, articles 305 and
326 of the abolished Code of Criminal Procedures No: 1412, dated
4/4/1929, article 308 of the
Code No: 5271.
IV.
EXAMINATION AND JUSTIFICATION
10. The application of the applicant dated
11/3/2013 and numbered
2013/2001 was examined during the session
held by the
court on 16/5/2013 and the following were
ordered and adjudged:
A.
Claims of the Applicant
11. By claiming that
the decision of conviction that was made following
the trial at the 5th Assize Court of Bakırköy was wrong, that
the evidences were not collected sufficiently and his right to defense
was restricted, the applicant has requested that the violation of his right to a fair
trial be established and that such
violation be remedied.
B.
Evaluation
12. Paragraph (5) of article 47 of the Law on the
Establishment and Trial Procedures of the Constitutional Court dated
30/3/2011 and numbered 6216 with the side heading ''Individual application procedure''
is as follows:
“The individual application should be made within thirty
days starting from the exhaustion
of legal remedies; and from the date
when the violation is known if no remedies
are envisaged. Those who fail to apply within
due duration upon just excuse
can apply in fifteen days starting from
the ending date of such excuse
and with evidence bearing proof of their excuses. The Court firstly shall accept
or reject such demand by
way of examination of the admissibility of the applicant's excuse."
13. Paragraph (1) of article 64 of the Internal Regulation
of the Constitutional Court
entitled "Duration of application and excuse" is as
follows:
“The individual application should be made within thirty days
starting from the exhaustion of legal remedies; and starting
from the date when the
violation is acknowledged if no remedies
are envisaged.”
14. One of the admissibility
criteria of the individual application is the application period. The period
is a consequence of procedure,
which has to be taken into consideration
during each instance of the application.
15. In compliance with
paragraph (5) of article 47
of the Code No. 6216 and paragraph No. (1) of article 64 of the Internal Regulation, individual applications have to be made
in thirty days starting from the
date of exhaustion of application remedies, and in cases when
no application remedies are envisaged,
starting from the date on which
the violation was acknowledged, directly to the
Constitutional Court or through other courts
or through the foreign representatives
16. Although in the aforementioned article of the Internal Regulation
a date of 'exhaustion of application remedies' is mentioned concerning the commencement of the application period, such expression
shall still be understood as the date on which the
final verdict is notified to the applicant
or the decision
is opened to the access of the
applicant. Taking the date of the
final verdict as the basis through an interpretation otherwise shall result in either the applicant
not making any applications as thirty days will have
passed starting from when he acknowledges
such decision and his right of petition would thusly be violated ; or the exercise
of such right would be restricted since there would only
be a limited amount of time
left for the application.
17. The decision No: M.2010/214,
D.2011/294, dated 13/10/2011 of the
5th Assize Court of Bakırköy, which
is the issue of application, has been approved by the
writ of the 1st Criminal Chamber of the Supreme Court of Appeals No: M.2012/1242, D.2012/9080, dated
5/12/2012. The applicant,
on the date of 24/12/2012,
has made a request to the Office of the Chief Prosecutor
of the Republic at the Supreme Court of Appeals for the
pursuance of the remedy of objection against the decision
of approval in compliance with article 308 of the Code No: 5271, and with its
decision No: KD.2012/42061
and dated 24/1/2013, the Office of the Chief Prosecutor of the Republic at the Supreme Court of Appeals has decided to dismiss such
demand and the applicant was
notified of such decision on the date of 25/2/2013.
18. The appeal phase
is the final application remedy in criminal justice, and the
remedy of objection to decisions that
have passed the investigation of appeal is legitimized to the Chief
Prosecutor of the Republic at the Supreme Court of Appeals as per article 308 of the Code No. 5271. Thus, the applicant's
demand concerning the pursuance of the remedy of objection
is a request to mobilize merely the discretion
of the Chief Prosecutor of the Republic at the Supreme Court of Appeals. Within this scope,
as the applications that have been
made are not accepted as remedies that are needed
to be exhausted prior to individual
application, pursuance of such remedy shall
have no impact
whatsoever on the period of individual application.
19. In the present
fact, remedies of application have been exhausted upon the approval,
on the date of 5/12/2012,
of the 1st Chamber of the Supreme Court of Appeals the decision
of the 5th Assize Court of
Bakırköy. Although the date of notification of this decision is not understood from the scope of the
file, it is obvious that one must accept
that the applicant was informed
about the final verdict, on the date of 24/12/2012 at the latest, when he applied to the
Office of the Chief Prosecutor of the Republic at the Supreme Court of Appeals. In this case,
when the individual application against the said
verdict had to be made latest until
the date of 23/1/2013, it was made on the
date of 11/3/2013, hence the conclusion concerning the presence of statute of limitations in the application.
20. For reasons explained,
it must be ruled that the individual
application that has not been made in thirty
days starting from the date
of exhaustion of remedies
of application, is inadmissible
as a result of “statute of limitations,” without being examined from the perspective of other admissibility condition.
V. JUDGMENT
It is UNANIMOUSLY decided on the date of 16/5/2013 that the application is INADMISSIBLE because
of “statute of limitations”
and that the trial expenses
be charged on the applicant.