CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 2 juillet 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. 29286/95                       by Mehmet Ali YILMAZ                       against Turkey          The European Commission of Human Rights (Second Chamber) sitting in private on 2 July 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                  A. ARABADJIEV              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 application introduced on 16 August 1995 by Mehmet Ali Yilmaz against Turkey and registered on 16 November 1995 under file No. 29286/95;        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 applicant, a Turkish citizen born in 1953, resides in Ankara. He is represented before the Commission by Mehdi Bektas, a lawyer practising in Ankara.        The facts of the case, as submitted by the applicant, may be summarised as follows.        The applicant, accused of being a member of the organisation Dev- Yol (Revolutionary Way), was taken into police custody in Ankara on 22 November 1981 and was subsequently detained on remand following a decision of the Ankara Court-Martial on 20 February 1982. He was released on 23 July 1991.        On 26 February 1982 the military prosecutor filed a bill of indictment in the Court-Martial against altogether 723 defendants, including the present applicant.        It was alleged that the applicant had founded an organisation, in which he also took a leading role, whose aim was to undermine the constitutional order and replace it with a Marxist-Leninist regime. It was also alleged that he had participated in the publication of the "Dev-yol" magazine; that he had organised activities to finance the organisation with the aim of providing guns to it; that he had advocated the need to set up resistance committees against attacks by extreme right-wing militants and finally that he had organised meetings. The prosecution called for the applicant to be sentenced pursuant to Article 146 of the Turkish Criminal Code.        On 20 February 1981 the applicant was questioned by the judge of the Court-Martial. In his questioning he denied his statement made to the police and alleged that it had been made under duress.        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 applicant guilty of the offences as charged. It held that although the applicant had denied his statement made to the police, his activities were also corroborated by statements of other accused. The court further referred to the expert reports and fraudulent identity cards which confirmed the applicant's illegal activities. It held that the accused had made university students aware of Dev-Yol, had trained them and organised the youth and obtained funds and weapons for the organisation with the aim of undermining the constitutional order by force. The court sentenced him to life imprisonment, debarred him from employment in the civil service and placed him under judicial guardianship during his detention.        The case was automatically referred to the Military Court of Cassation under 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.            Pursuant to a law promulgated on 27 December 1993, the case-file was transferred to the Court of Cassation. On 27 December 1995 the Court of Cassation upheld the first-instance court's decision.     COMPLAINTS   1.    The applicant complains under Article 3 of the Convention of the conditions of his detention in police custody.   2.    The applicant complains under Article 5 para. 3 of the Convention that his detention on remand was prolonged beyond   a reasonable time.   3.    The applicant complains under Article 5 para. 4 of the Convention that Turkish law does not afford any effective remedy by which the lawfulness of his police custody could be decided speedily by a court. On the basis of the same facts he also complains that he was deprived of his right to compensation under Article 5 para. 5 of the Convention.   4.    The applicant complains that the criminal proceedings brought against him were not concluded within a "reasonable time" as required by Article 6 para. 1 of the Convention.   5.    He also complains that his case was not heard by an independent and impartial tribunal, as required by Article 6 para. 1 of the Convention. He explains 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.   6.    He lastly complains that he did not have a fair trial as the courts based their reasoning on statements which he had made to the police under duress, which is contrary to Article 6 para. 1 of the Convention.     THE LAW   1.    The applicant 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.        In this context the Commission notes that his police custody ended on 20 February 1982.        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 complaint under Article 3 (Art. 3) of the Convention concerns a period which is prior to 28 January 1987.        It follows that the applicant's complaint 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.    The applicant complains that his detention on remand exceeded a reasonable time within the meaning of Article 5 para. 3 (Art. 5-3) of the Convention.        The applicant further complains under Article 5 para. 4 (Art. 5-4) of the Convention that Turkish law does not afford any effective remedy by which the lawfulness of his police custody could be decided speedily by a court. On the basis of the same facts he also complains that he was deprived of his right to compensation under Article 5 para. 5 (Art. 5-5) 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 applicant's detention within the meaning of Article 5 para. 1(c) and 3 (Art. 5-1-c, 5-3) ended on 19 July 1989 when he was convicted at first instance, whereas the application was submitted to the Commission on 16 August 1995, that is more than six months after the end of the situation complained of.        It follows that the applicant's above complaints have been introduced out of time and must be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.   3.    The applicant complains that the criminal proceedings brought against him were not concluded within a "reasonable time" as required by Article 6 para. 1 (Art. 6-1) of the Convention.        He also complains that his case was not heard by an independent and impartial tribunal, as required by Article 6 para. 1 (Art. 6-1) of the Convention. He explains 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.        He lastly complains that he did not have a fair trial as the courts based their reasoning on statements which he had made to the police under duress, which is contrary to 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 them to the respondent Government.          For these reasons, the Commission,        DECIDES TO ADJOURN the examination of the applicant's complaints      concerning the length and fairness of the criminal proceedings      instituted against him and his complaint concerning the      independence and impartiality of the court,        unanimously,      DECLARES THE REMAINDER OF THE APPLICATION INADMISSIBLE.        M.-T. SCHOEPFER                               G.H. THUNE       Secretary                                   President to the Second Chamber                       of the Second Chamber