CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 4 mars 1998

.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. 29361/95                     by Halil Yasin KETENOGLU                     against Turkey        The European Commission of Human Rights (Second Chamber) sitting in private on 4 March 1998, the following members being present:               MM    J.-C. GEUS, President                M.A. NOWICKI                G. JÖRUNDSSON                A. GÖZÜBÜYÜK                J.-C. SOYER                H. DANELIUS           Mrs   G.H. THUNE           MM    F. MARTINEZ                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 15 May 1995 by Halil Yasin KETENOGLU against Turkey and registered on 23 November 1995 under file No. 29361/95;        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, born in 1956, is a Turkish citizen and resident in Hannover-Germany. He is represented before the Commission by Mr Mehmet Aydin, a lawyer practising in istanbul.        The facts of the present case, as submitted by the applicant, may be summarised as follows.   A.    Particular circumstances of the case        On 7 November 1980 the Ankara police took the applicant into custody. He was accused of being a member of the organisation Dev-Yol (Revolutionary Way) whose aim was to undermine the constitutional order and replace it with a Marxist-Leninist regime.        On 6 February 1981, following his detention in custody, the Ankara Martial Law Court ordered the applicant to be detained on remand.        On 26 February 1982 the military prosecutor filed a bill of indictment in the Ankara Martial Law Court against 723 defendants altogether, including the present applicant.        On 11 November 1985 the applicant was released pending trial by the Martial Law Court.        After martial law was lifted, the Ankara Martial Law Court took the name of Martial Law Court attached to the 4th army corps. It continued to deal with this case even after the lifting of martial law, pursuant to a provision in Article 23 of the Martial Law Act (no. 1402) of May 1971, amended on 19 September 1982.        On 12 October 1987 the applicant asserted before the Martial Law Court that it was unconstitutional to be tried by a martial law court after the lifting of martial law. The court dismissed his objections on the same day.        Following his release, the military prosecutor filed a new bill of indictment against the applicant. The prosecution called for the applicant to be sentenced to death, pursuant to Article 146 para. 1 of the Turkish Criminal Code, and ordered the applicant to be detained on remand.        In May 1989 the applicant, with his wife, left the country illegally and went to Germany.        In a judgment of 19 July 1989, the Martial Law Court sentenced the applicant to 16 years' imprisonment and debarred him from employment in the civil service under Article 168 para. 1 of the Turkish Criminal Code.        The applicant lodged an appeal against the judgment delivered by the Martial Law Court. Following the applicant's appeal the case was referred to the Military Court of Cassation. Pursuant to a law promulgated on 27 December 1993, the case-file was eventually transferred to the Court of Cassation.        On 28 December 1995 the Court of Cassation ruled on the appeal. It agreed with the Martial Law Court as regards its reasoning and assessment of the evidence.   B.    Relevant domestic law        Article 168 of the Turkish Criminal Code        <Translation>        "Whosoever, with a view to committing any of the crimes listed      in section 125, 131, 146, 147, 149 and 156, shall form an armed      group or organisation or assume the control and command of or a      particular responsibility within such a group or organisation      shall be sentenced to a minimum term of imprisonment of fifteen      years.        The ordinary members of such a group or organisation shall be      sentenced to a term of between five and fifteen years'      imprisonment."   COMPLAINTS   1.    The applicant complains under Article 5 of the Convention that his right to security was breached as he was always under the threat of being detained on remand, following his release pending trial, due to the long criminal proceedings.   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 under Article 6 para. 1 of the Convention that he did not have a fair trial as he was tried by the Martial Law Court which cannot be considered to be an independent and impartial tribunal.   THE LAW   1.    The applicant complains under Article 5 (Art. 5) of the Convention that his right to security was breached as he was always under the threat of being detained on remand, following his release pending trial, due to the long criminal proceedings.        The Commission recalls that the words "liberty" and "security" must be read as a whole and refer to physical liberty and security and a guarantee against arbitrariness of arrest and detention (e.g. No. 10871/84, Dec. 10.7.86, D.R. 48 p. 154).        The Commission notes that the applicant was accused of being a member of an illegal organisation and he was detained on remand by the order of Ankara Martial Law Court. In accordance with his request, on 11 November 1985, he was released pending trial by the Martial Law Court and later he left the country. In the present case, the applicant's complaints concern uncertainty in his status resulting from the criminal proceedings pending against him.        However, the Commission considers that a person's right to security is not violated by uncertainty about an accused's status resulting from criminal proceedings pending against him. The Commission therefore concludes that there is no interference with the applicant's right to security of person.        It follows that this part of the applicant's complaints must be rejected as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   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 (Art. 6-1) of the Convention.        He also complains under Article 6 para. 1 (Art. 6-1) of the Convention that he did not have a fair trial as he was tried by the Martial Law Court which cannot be considered to be an independent and impartial tribunal.      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 Martial Law Court.        unanimously,      DECLARES INADMISSIBLE the remainder of the application.        M.-T. SCHOEPFER                                J.-C. GEUS       Secretary                                    President to the Second Chamber                       of the Second Chamber