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                    Applications Nos.        28291/95, 29280/95, 29911/96, 29912/96,      29913/96, 29699/96, 29700/96, 29701/96,      29702/96, 29703/96, 31853/96, 31880/96,      31891/96, 32987/96, 32964/96, 32990/96,      33362/96 against Turkey     The European Commission of Human Rights (Second Chamber) sitting in      private on 9 April 1997, the following members being present:        Mrs.G.H. THUNE, President      MM.J.-C. GEUS      G. JÖRUNDSSON      A. GÖZÜBÜYÜK      J.-C. SOYER      H. DANELIUS      F. MARTINEZ      M.A. NOWICKI      I. CABRAL BARRETO      J. MUCHA      D. SVÁBY      P. LORENZEN      E. BIELIUNAS      E.A. ALKEMA        Ms.M.-T. SCHOEPFER, 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 applications, listed in the Annex to this      decision;   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 applicants listed in the annex are all Turkish citizens.        The facts of the cases as submitted by the applicants, may be summarised as follows.        The applicants, accused of being members of the organisation Dev- Yol (Revolutionary Way), were taken into police custody in Ankara at various dates between March 1978 and March 1982 and they were subsequently detained on remand upon   decisions of the Ankara court- martial. Some of them were released pending trial.        The details are as follows:   The applicant and     Periods of     End of the     Present No. of the            police         detention      Situation Application           custody        on remand   28291/95               5.03.1982     19.07.1989     served his sentence Yasar Kanbur       26.04.1982   29280/95              22.01.1981     23.07.1991     served his sentence Ali Baspinar          23.04.1981   29699/96 Ertugrul Dinleten     26.06.1979                      29.06.1979     17.08.1990      served his sentence   29700/96 Hayati Metinoglu      12.08.1979                       1.10.1979     16.11.1989      served his sentence   29701/96 Süleyman Özcan        20.03.1980                       4.04.1980      4.06.1990      served his sentence   29702/96 Bülent Saritaç        15.06.1979                      11.07.1979      8.11.1984      served his sentence   29703/96 Mustafa Züla          l3.04.1979                       4.07.1979      4.06.1990      served his sentence   29911/96 Hikmet Uygur          19.10.1980                       4.11.1980      8.11.1984      served his sentence 29912/96 Saim Çilengir         21.04.1979                      28.04.1979      6.05.1980      served his sentence   29913/96 Aziz Binbir           15.03.1978                      22.03.1978     10.02.1984      served his sentence   31853/96 Melih Bekdemir        22.01.1981                      23.04.1981     19.07.1989      still in prison   31880/96 Hidir Adiyaman        31.08.1981                      19.10.1981     18.05.1987      served his sentence   31891/96 Erdogan Genç           2.12.1980                       2.02.1981     14.12.1988      served his sentence   32964/96 Cahit Akçam           17.11.1980                      20.02.1981     14.12.1988      served his sentence   32987/96 Hüsamettin Keskin      3.11.1980                      30.01.1981     24.08.1988      served his sentence   32990/96 Hicabi Karademir      25.09.1981                      25.10.1980      6.02.1985      served his sentence   33362/96 Aydin Akyazi          26.11.1980                      14.02.1980     25.8.1988       served his sentence          On 26 February 1982 the military prosecutor filed a bill of indictment in the court-martial against altogether 723 defendants including the present applicants.        It was alleged that the applicants had founded an organisation, in which some of them also played a leading role, and whose aim was to undermine the constitutional order and replace it with a Marxist- Leninist regime, that they had advocated the need to set up resistance committees against attacks by extreme right-wing militants, and that they had instigated a number of violent acts. The prosecution called for the applicants to be sentenced pursuant to Article 146 of the Turkish Criminal Code.        After martial law was lifted, the Ankara court-martial took the name of the court-martial attached to the 4th army corps.        In a judgment of 19 July 1989, the court-martial found the applicants guilty of the offences as charged, and sentenced them to various terms of imprisonment.        The case was automatically referred to the Supreme Military Court due to the provision of Article 305 of the Turkish Code of Criminal Procedure which stipulates that there is an automatic appeal where the sentence passed at first instance exceeds fifteen years' imprisonment.        Following the law promulgated on 27 December 1993, the case-file was transferred to the Court of Cassation. On 27 December 1995 the Court of Cassation held that the first instance court had failed to evaluate all the evidence regarding the applicants' situation. Therefore it quashed the relevant parts of the court decision concerning the applicants. The criminal proceedings were referred back to the State Security Court where they are still pending.   COMPLAINTS   1.    All applicants complain that the criminal proceedings brought against them were not dealt with within a "reasonable time" as required by Article 6 para. 1 of the Convention.   2.    The applicants:        Ali Baspinar      Hüsamettin Keskin      Hicabi Karademir      Aydin Akyazi   complain under Article 3 of the Convention of the conditions of their detention in police custody. 3.    The applicants:        Yasar Kanbur      Ertugrul Dinleten      Hayati Metinoglu      Süleyman Özcan      Bülent Saritaç      Mustafa Zülal      Hikmet Uygur      Saim Çilengir      Aziz Binbir      Hidir Adiyaman      Erdogan Genç      Cahit Akçam   complain under Article 5 para. 3 of the Convention that their detention on remand was prolonged beyond a reasonable time.   4.    The applicants:        Hüsamettin Keskin      Aydin Akyazi   also complain under Article 5 para. 4 of the Convention that it was impossible for them to lodge a complaint in order to challenge the lawfulness of their detention. On the basis of the same facts, they allege that they have been deprived of their right to compensation under Article 5 para. 5 of the Convention.   5.    The applicants:        Yasar Kanbur      Ali Baspinar      Hidir Adiyaman      Erdogan Genç      Cahit Akçam      Aydin Akyazi   also complain that they did not have a fair trial as the courts based their reasoning on statements which they had made to the police under duress, which is contrary to Article 6 para. 1 of the Convention.   6.    The applicants:        Yasar Kanbur      Ali Baspinar      Hidir Adiyaman      Erdogan Genç      Cahit Akçam   complain that their case was not heard by an independent and impartial tribunal, as required by Article 6 para. 1 of the Convention. They explain that the court-martial was composed of five members: two military judges, two civil judges and one army officer with no legal training and fully accountable to the military commander of the state of martial law.        They also claim that their case was not heard by a tribunal established by law within the meaning of Article 6 para. 1 of the Convention. Although martial law was lifted in Ankara on 19 July 1985, courts-martial continued to try cases pending before them.   7.    The applicants:        Yasar Kanbur      Hidir Adiyaman      Erdogan Genç      Cahit Akçam      Hüsamettin Keskin      Aydin Akyazi   complain under Article 6 para. 2 of the Convention that owing to its excessive length their detention on remand could no longer be considered as a provisional measure, but constituted an anticipatory sentence.   8.    The applicants:        Hüsamettin Keskin      Aydin Akyazi   allege violation of Articles 9 and 10 of the Convention. They state that the investigations carried out against them were the direct consequence of conflicting views between them and the Turkish authorities on the current political system.     THE LAW   1.    Certain applicants complain under Article 3 (Art. 3) of the Convention about the conditions of their police custody. They allege that during their interrogation by the police they were subjected to various forms of ill-treatment, without giving any details of the alleged ill-treatment.        The applicants Saritaç, Uygur, Binbir and Karademir complain that their detention on remand exceeded a reasonable time within the meaning of Article 5 para. 3 (Art. 5-3) of the Convention. In this context the Commission notes that their detention on remand ended at various dates between 1980 and 1984.        The Commission recalls that the declaration made by Turkey on 28 January 1987, pursuant to Article 25 (Art. 25) of the Convention, by which Turkey recognised the Commission's competence to examine individual petitions, extends only to facts and judgments based on events occurring after that date. The Commission notes that the above complaints under Articles 3 and 5 para. 3 (Art. 3, 5-3) of the Convention concern a period which is prior to 28 January 1987.        It follows that the applicants' complaints in this respect must be rejected as falling outside the competence ratione temporis of the Commission and therefore as being incompatible with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2).   2.    Certain other applicants whose detention on remand continued after 28 January 1987 also complain that the length of this detention exceeded a reasonable time within the meaning of Article 5 para. 3 (Art. 5-3) of the Convention or, alternatively, that because of its excessive length it could not be considered as a provisional measure, but constituted an anticipatory sentence, infringing the presumption of innocence under Article 6 para. 2 (Art. 6-2) of the Convention.        The Commission recalls that according to Article 26 (Art. 26) of the Convention, it may only deal with applications introduced within a period of six months after the final decision or, where there are no domestic remedies available, after the end of the situation complained of.        In this respect the Commission observes that the applicants' detention on remand within the meaning of Article 5 para. 1(c) and 3 (Art. 5-1-c, 5-3) ended at the latest on 19 July 1989 when they were convicted in first instance, whereas the applications were submitted to the Commission at various dates in 1995 and 1996 (see annex), that is more than six months after the end of the situation complained of.        It follows that the applicants' above complaints have been introduced out of time and must be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.   3.    Certain applicants complain under Article 6 para. 1 (Art. 6-1) of the Convention that they did not have a fair trial as statements made to the police under duress constituted the basis of their conviction by the military court.        Certain applicants complain that their case was not heard by an independent and impartial tribunal, as required by Article 6 para. 1 (Art. 6-1) of the Convention. They also claim that the case was not heard by a tribunal established by law within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention. The Commission notes that these complaints relate exclusively to the military court which formerly dealt with the proceedings against the applicants.        The Commission further notes that the criminal proceedings against the applicants are still pending before the State Security Court.        According to its constant case-law, the Commission must take into consideration the entire criminal proceedings brought against the applicants in order to express an opinion as to whether they comply with the requirements of Article 6 (Art. 6) of the Convention (cf. e.g. Nos. 23878/94, 23879/94, 23880/94, 23881/94, 23882/94, 23883/94, Dec. 25.5.95, D.R. 81-B p. 94).        The introduction of the above complaints therefore appears premature given the current stage of the proceedings before the domestic courts. The applicants cannot complain at this stage of any violation of the Convention during the early phase of the proceedings concerned. They may re-submit the case to the Commission if, following the outcome of the criminal proceedings against them, they still consider themselves victims of violations of the Convention in the above respects. The present complaints on this point must therefore be rejected as manifestly ill-founded pursuant to Article 27 para. 2 (Art. 27-2) of the Convention.   4.    All applicants complain that the criminal proceedings brought against them were not dealt with within a "reasonable time" as required by Article 6 para. 1 (Art. 6-1) of the Convention.        The Commission considers that it cannot, on the basis of the file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 48 para. 2 (b) of the Rules of Procedure, to give notice of these complaints to the respondent Government.        For these reasons, the Commission,        DECIDES TO JOIN THE APPLICATIONS,        DECIDES TO ADJOURN the examination of the applicants' complaints      related to the length of the criminal proceedings instituted      against them,        unanimously,      DECLARES INADMISSIBLE the remainder of the applications.      M.-T. SCHOEPFER                               G.H. THUNE       Secretary                                   President to the Second Chamber                       of the Second Chamber