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            Application No. 31831/96                 Application No. 33369/96      by Muharrem Özcan                        by Polat Can      against Turkey                           against Turkey        Application No. 33645/96                 Application No. 34591/97      by Yüksel Polat                          by Sükrü Özçetin      against Turkey                           against Turkey                         Application No. 34687/97                       by Tugba Kiliç Kalkan                       against Turkey        The European Commission of Human Rights 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 Appendix 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 October 1980 and April 1985 and they were subsequently detained on remand upon decisions of the Ankara court- martial. They were all released pending trial.        The details are as follows:     The applicant        Periods of            End of the and No. of the       police                detention application          custody   31831/96 Muharrem Özcan    16.04.1985                     29.04.1985         24.03.1986   33369/96 Polat Can            03.12.1980                     27.01.1981            31.12.1983   33645/96 Yüksel Polat         12.10.1980                     31.10.1980            19.01.1982   34591/97 Sükrü Özçetin        26.11.1981                     24.12.1981            26.05.1986   34687/97 Tugba Kiliç Kalkan    4.11.1980                     27.01.1981             3.11.1981     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 took 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 Articles 146 of the Turkish Criminal Code.   After martial law was lifted, the Ankara court-martial took the name of 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 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 regarding the applicants the prosecution was time-barred in accordance with the principles of prescription. The judgment concerning the applicants was based on the following reasons:   "...it has been decided to quash the decision of the first instance court pursuant to Article 301 of Code of Criminal Procedure as it is apparent that the lapse of time prescribed in Articles 102 para. 3, 104 para. 2 of the Turkish Criminal Code has expired, and there is no need for retrial of this matter in accordance with Article 322 of the Code of Criminal Procedure. Therefore it has been decided to terminate the Public Prosecution against the above-mentioned defendants..."     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 applicant Muharrem Özcan also complains under Article 3 of the Convention of the conditions of his detention in police custody.   3.    The applicants Muharrem Özcan, Polat Can, Yüksel Polat and Sükrü Özçetin complain under Article 5 para. 3 of the Convention that their detention on remand was prolonged beyond a reasonable time.   4.    The applicants Muharrem Özcan, Polat Can and Yüksel Polat 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.   5.    The applicants Yüksel Polat and Polat Can also 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 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.   6.    The applicants Polat Can and Yüksel Polat 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.   THE LAW   1.    The applicant Özcan complains under Article 3 (Art. 3) of the Convention about the conditions of his police custody. He alleges that during his interrogation by the police he was subjected to various forms of ill-treatment, without giving any details of the alleged ill- treatment.        Certain applicants complain that their detention on remand exceeded the 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 1986.        Two of these applicants also complain under Article 6 para. 2 (Art. 6-2) 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.        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 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 incompatible with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2).   2.    Certain applicants complain under Article 6 para. 1 (Art. 6-1) of the Convention that they did not have a fair trial as their statements made to the police under duress constituted the grounds of the court's decisions.        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 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 commander of he state of martial law. Some of them also complain under the same Article that their case was not heard by a tribunal established by law.        However the Commission notes that the charges against the applicants were withdrawn on the ground of prescription.        The Commission recalls that the withdrawal of the criminal proceedings instituted against the applicants constitutes redress of the violations which would have infringed their rights under the Convention (No. 5575/72, Dec. 8.7.74, D.R. 1, p. 44). It also recalls that on 24 October 1995 the Commission declared the applications Cankoçak against Turkey (Nos. 25182/94 and 26956/95) partially inadmissible on the same ground.        Accordingly, the applicants can no longer claim to be victims of a violation in respect of these matters and these complaints must be dismissed as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.    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' complaint      related to the length of the criminal proceedings instituted      against them;        unanimously,      DECLARES THE REMAINDER OF THE APPLICATIONS INADMISSIBLE.        M.-T. SCHOEPFER                               G.H. THUNE       Secretary                                   President to the Second Chamber                       of the Second Chamber