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. 33363/96                       by Fikret DOGAN                       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 27 June 1996 by Fikret Dogan against Turkey and registered on 4 October 1996 under file No. 33363/96;        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 1962, resides in Ankara. He is represented before the Commission by Canan Aydin,   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 28 November 1980 and was subsequently detained on remand following a decision of the Ankara Court-Martial on 9 January 1981. He was released in 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 was a member of an illegal organisation whose aim was to undermine the constitutional order and replace it with a Marxist-Leninist regime. In addition it was alleged that he had instigated a number of violent acts such as the killing of C.M. and C.D., opening fire on H.C., G.A. and N.A. and   bombing a house. It was also alleged that following his confession the police found a huge amount of explosives and many weapons which   were used during the above-mentioned acts. The prosecution called for the applicant to be sentenced pursuant to Article 146 of the Turkish Criminal Code.        On 25 December 1982 the applicant in his statement made to the police confessed his illegal activities related to the organisation.        The applicant was also questioned by the Public Prosecutor in the Ankara Court-Martial. He confirmed his membership of Dev-Yol, but he denied vehemently the illegal activities of which he had been accused.        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 had been corroborated by the statements of other accused. The court further referred to the weapons and the explosives which were found in his flat. It concluded that this evidence confirmed the applicant's illegal activities and sentenced him to life   imprisonment, debarred him from employment in the civil service and also 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 further 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.   3.    He also 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.   4.    He 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.   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.        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 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 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.        The applicant 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 further complains under Article 6 para. 1 (Art. 6-1) of the Convention that he did not have a fair trial as his statements made to the police under duress constituted the grounds of the courts' decisions.        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 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