Press Release No: Individual Application 14/16
23.03.2016

PRESS RELEASE CONCERNING THE DECISION OF B.L.B. ON BEING OUT OF TIME

On 25/2/2016, the Constitutional Court held with regard to the individual application lodged by B.L.B. (application no. 2013/4690) that it was declared inadmissible for being out of time.

The Facts

The İzmir Chief Public Prosecutor’s Office filed a case in respect of the applicant for robbery. The Court sentenced the applicant to a fine and subsequently decided to suspend the fine imposed. The 6th Criminal Chamber of the Court of Cassation quashed the first instance decision. The first instance court decided to discontinue the case filed in respect of the applicant on account of expiry of statute of limitations. This decision was appealed by the complainant, and the Court of Cassation upheld the first instance decision. The judgment of the Court of Cassation was received by the first instance court on 27/11/2012. Having stated that he became aware of the judgment at a later time due to a hernia operation he had undergone, the applicant filed an individual application on 17/6/2013.

The Allegations

The applicant maintained he had been defamed; that he had been previously convicted arbitrarily without the available evidence being examined and it had been subsequently decided to discontinue the case against him due to expiry of the statute of limitations; and that his right to a fair trial had been breached as the proceedings had not been concluded within a reasonable time. He accordingly requested re-trial and requested to be indemnified for the workmanship fees he could not gain on account of this incident. The applicant asserted that he could not pursue his case for 4-5 months due to the hernia operation he had undergone; that he could not stand up for one month before the operation and he had been on sick leave for two months; and that he had became aware of the final decision after his pains had worn off.

The Court’s Assessment

In brief, the Constitutional Court briefly made the following assessments within the scope of this allegation.

The applicants are liable to show due diligence for pursuing their cases and applications with a view to lodging an individual application. The applicants and their representatives are required to prove that they have acted with due diligence for obtaining one copy of the judgment received by the first instance court.

It must be accepted with respect to each final decision which is accessible that the parties concerned are notified of the decision and become aware of the justification thereof within at the latest three months. Unless otherwise established, the application period of thirty days prescribed in the Law for individual application shall start on the date when it is accepted that the final decision is known and the grounds thereof are found out.

It is governed in the Internal Regulations of the Constitutional Court that in case of a justified excuse such as force majeure or severe disease, the period for lodging an application may be extended. However, any determination and definition are not made therein. As it is not possible to determine which circumstances are deemed justified excuse in advance, the question as to whether the excuse asserted is justified or not must be determined by taking into consideration particular circumstances of each application.

In the impugned incident, the applicant maintained that he had become aware of the judgment of the Court of Cassation on 20/5/2013 as he had undergone a herniated disk operation. The applicant did not submit any document indicating the date when he had taken the operation. In the report dated 4/3/2013, it was not established whether the applicant’s disease was severe or not; but only acute pain diagnosis was mentioned of. It has been observed that as his disease did not require him to receive an inpatient treatment, he was not hospitalized; and that an outpatient treatment and sick leave were found sufficient for the applicant. In the report dated 14/3/2013, it was established that the applicant was able to work as from that date.

Although the applicant submitted a report of 21/3/2013, this report was issued by the emergency department of a polyclinic on account of falling and do not include any diagnosis of a severe disease. The period of sick leave is not definite in the report; however, as the report was drawn up by a single doctor, the sick leave cannot exceed ten days and may be valid until at the most 31/3/2013. Therefore, as it is accepted within the scope of the obligation of diligence that the applicant became aware of the content of the judgment on, at the latest, 27/2/2013 and he should have lodged the individual application within thirty days as from this date, the application lodged on 17/6/2013 was out of time.

The Constitutional Court has consequently held that the individual application was declared inadmissible for being out of time.

This press release prepared by the General Secretariat intends to inform the public and has no binding effect.

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