CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 11 septembre 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. 33370/96                     by Arap Yalgin, Muhtat Karakoca and                     Mehmet Murat Öner                     against Turkey          The European Commission of Human Rights (Second Chamber) sitting in private on 11 September 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 17 June 1996 by Arap Yalgin, Muhtat Karakoca and Mehmet Murat Öner against Turkey and registered on 4 October 1996 under file No. 33370/96;        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 applicants, Arap Yalgin, Muthat Karakoca and Mehmet Murat Öner, are all Turkish citizens born in 1963, 1958 and 1954 respectively who reside in Ankara. They are represented before the Commission by Oya Ataman, a lawyer practising in Ankara.        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 on various dates between November 1980 and March 1981 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 police       End of the detention                    custody   Muhtat Karakoca     20.11.1980                 16.06.1986                    19.10.1981   Mehmet Murat Öner   12.12.1980                 01.02.1983                    27.01.1981   Arap Yalgin         06.03.1981                 01.05.1981                    11.05.1981          On 26 February 1982 the military prosecutor filed a bill of indictment in the Court-Martial against altogether 723 defendants including the applicants.        Concerning the applicant Muhtat Karakoca, 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. It was further alleged that he had instigated a number of violent acts such as the killing of F.S., burning down a car, bombing a house and a shop. In addition it was alleged that he was carrying   an unlicensed weapon and a false identity card.        On 14 September 1981 the applicant was questioned by the Public Prosecutor at the Ankara Court-Martial. He denied his statement made to the police in which he confessed his illegal activities and alleged that they were made under duress.        In due time, after martial law was lifted, the Ankara Court- Martial took the name of Court-Martial attached to the 4th army corps. It continued to deal with this case until 27 December 1993, pursuant to a provision in Article 23 of the Martial Law Act (no. 1402) of May 1971, amended on 19 September 1982.      In a judgment of 19 July 1989, the Court-Martial found the applicant guilty of the offences as charged. The court rejected his objection that his statement made to the police was made under duress. It concluded that the applicant's illegal activities had been verified and corroborated by the statements made by others who had also been accused. The court further referred to the false identity card which was obtained with the help of other members of the organisation who used to work in the registry office and to the fact that he was arrested in Izmir while he was campaigning on behalf of Dev-Yol. The court held   that this evidence strengthened the applicant's illegal activities. The court sentenced him to seven years' imprisonment, debarred him from employment in the civil service and also placed him under judicial guardianship during his detention.        Following the applicant's appeal the case was referred to the Military Court of Cassation.        Pursuant to the law promulgated on 27 December 1993, the case- file was transferred to the non-military court, the Court of Cassation, by act No. 3953. On 27 December 1995 the Court of Cassation   upheld the first instance court's decision.        Concerning the applicant Mehmet Murat Öner, 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. It was further alleged that the applicant had prepared false identity cards for the members of the organisation, had stolen the seal of the company TEK, where he was employed in order to benefit from buying and supplying the other members of the organisation with clothes by way of preparing false promissory notes. It was also alleged that he had registered a car under his name which was bought for the organisation, and he had obtained funds for the organisation.        On 5 March 1981 the applicant, in his statement to the police, confessed his illegal activities related to the organisation. However, during his questioning by the Public Prosecutor and the court hearings he denied his statements and alleged that they were made under duress.        In due time, after martial law was lifted, the Ankara Court- Martial took the name of Court-Martial attached to the 4th army corps. It continued to deal with this case until 27 December 1993, pursuant to a provision in Article 23 of the Martial Law Act (no. 1402) of May 1971, amended on 19 September 1982.        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 verified and corroborated by the statements made by others who had also been accused. The court further referred to the false identity cards, the stolen seal of the company, and the car which was registered under the applicant's   name although he did not have a driving licence. Accordingly, the court held that this evidence strengthened the applicant's illegal activities and sentenced him to five years and six months' imprisonment, debarred him from employment in the civil service and also placed him under judicial guardianship during his detention.        Following the applicant's appeal the case was referred to the Military Court of Cassation.        Pursuant to the law promulgated in 1993 by Act No. 3953 of 27 December 1993, amending Act No. 1402, the case-file was transferred to the Court of Cassation. On 27 December 1995 the Court of Cassation held that the prosecution was time-barred in accordance with the principles of prescription. The judgment concerning the applicant was based on the following reasons:        "...it has been decided to quash the decision of the first      instance court pursuant to Article 301 of the Code of Criminal      Procedure as it is apparent that the lapse of time prescribed in      Articles 102 para. 3 and 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..."        Concerning the applicant Arap Yalgin, 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. It was further alleged that he had participated in some meetings, had acted as a look-out and had obtained funds for the organisation. It was also alleged that following the applicant's confession, two weapons and some explosives had been found   and it had been established that the weapons numbered as 658862-444855 were used in some violent acts such as shooting with a gun at O.Y.'s house by the applicant and the other accused M.Y.        On 5 April 1981 the applicant, in his statement to the police, confessed his illegal activities related to the organisation. However, during his questioning by the Public Prosecutor and the court hearings he denied his statement and alleged that they were made under duress.        In due time, after martial law was lifted, the Ankara Court- Martial took the name of Court-Martial attached to the 4th army corps and continued to deal this case even after the lifting of martial law, until December 1993, pursuant to a provision in Article 23 of the Martial Law Act (no. 1402) of 13 May 1971, amended on 19 September 1982.        In a judgment of 19 July 1989, the Court-Martial found the applicant guilty of the offences as charged. The court rejected his objection that his statement made to the police was made under duress. It concluded that the applicant's illegal activities had been verified and corroborated by the statements made by others who had also been accused. The court further referred to the weapons and the explosives which were found following the confessions of the applicant and the others who had been also accused, and held   that this evidence strengthened the applicant's illegal activities. The court sentenced him to six years and eight months' imprisonment, debarred him from employment in the civil service and also placed him under judicial guardianship during his detention. It took from 19 July 1989 to 1993 to draft the grounds of the judgment and following the applicant's appeal the case was referred to the   Military Court of Cassation.        Following the law promulgated by Act No. 3953 of 27 December 1993, the case-file was transferred to the non-military court, the Court of Cassation, by Act No. 3953. On 27 December 1995 the Court of Cassation quashed the first instance court's decision on the grounds that the court had failed to apply all the relevant legal provisions to the crime in question. The Court of Cassation ruled that there was no need for a retrial of the case. Accordingly, it revised the file and finally sentenced the applicant to five years' imprisonment.     COMPLAINTS   1.    All the applicants complain under Article 5 para. 3 of the Convention that their detention on remand was prolonged beyond a reasonable time.   2.    The applicants further complain that the criminal proceedings brought against them were not concluded within a reasonable time as required by Article 6 para. 1 of the Convention.   3.    They 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.   4.    They 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.   5.    They further complain 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, the Court-Martial continued to deal with cases pending before it.   6.    The applicants Muhtat Karakoca and Mehmet Murat Öner lastly 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.    All three applicants 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 1981 and 1986.        Muhtat Karakoca and Mehmet Murat Öner 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 these complaints 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.    All three applicants further bring several complaints under Article 6 (Art. 6) of the Convention.   a)    The applicants complain that the criminal proceedings brought against them were not concluded 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.   b)    The applicants 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 (Art. 6-1) of the Convention.        They also 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 military commander of the state of martial law.        Concerning the applicants Arap Yalgin and Muhtat Karakoca, 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.        Concerning the applicant Mehmet Murat Öner, the Commission notes that the charges against him were withdrawn on the ground of prescription.        The Commission recalls that the withdrawal of the criminal proceedings instituted against this applicant constitutes redress of the violations which would have infringed his 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 Cankocak against Turkey (Nos. 25182/94 and 26956/95) partially inadmissible on the same ground.        Accordingly, the applicant can no longer claim to be a victim of a violation in respect of this matter and this complaint must be dismissed as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   c)    The applicants complain that their case was not heard by a tribunal established by law within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention. In this context, they explain that although martial law was lifted in Ankara on 19 July 1985, the Court- Martial continued to deal with cases pending before it.        The Commission observes that the Court-Martial remained competent to deal with this case even after the lifting of martial law, until 27 December 1993, pursuant to a provision in Article 23 of the Martial Law Act (no. 1402) of 13 May 1971, amended on 19 September 1982. This provision was repealed by Act No. 3953 of 27 December 1993, amending Act No. 1402 and the case-file was transferred to the non-military criminal courts.        The Commission further considers that in this case, the applicants were prosecuted and convicted on the basis of legal provisions empowering a   Court-Martial to decide, even in peacetime, cases against civilians suspected of having committed offences designed to undermine the constitutional system.        It follows that the Court-Martial, which tried and convicted the applicants, may be considered to be a tribunal "established by law" within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention (Mitap and Müftüoglu v. Turkey, Comm. Report 8 December 1994, para. 86, Eur. Court H.R., Reports 1996-II, No. 6).        The Commission considers that in these circumstances it must reject this complaint as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.        For these reasons, the Commission,        DECIDES TO ADJOURN the examination of all the applicants'      complaints related to the length of criminal proceedings      instituted against them and the applicants Muhtat Karakoca's and      Arap Yalgin's complaints relating to their right to a fair trial      by an independent and impartial tribunal,        unanimously,      DECLARES THE REMAINDER OF THE COMPLAINTS INADMISSIBLE.        M.-T. SCHOEPFER                               G.H. THUNE       Secretary                                   President to the Second Chamber                       of the Second Chamber