CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 16 novembre 1999

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Palm, President ,   Mr   J. Casadevall,   Mr   Gaukur Jörundsson,   Mr   R. Türmen,   Mr   C. Bîrsan,   Mrs   W. Thomassen,   Mr   R. Maruste, judges ,   and   Mr   M. O’Boyle, Section Registrar ;     Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;     Having regard to the application introduced on 27 May 1996 by Şaban Değirmenci And 38 Others against Turkey and registered on 13 June 1996 under file no. 31879/96;     Having regard to the report provided for in Rule 49 of the Rules of Court;     Having deliberated;     Decides as follows: THE FACTS   The applicants, whose names appear in the appended list, are Turkish nationals. They are represented before the Court by Mr Şenal SARIHAN, a lawyer practising in Ankara (Turkey).     The facts of the case, as submitted by the applicants, may be summarised as follows.     The applicants, accused of being members of the illegal organisation Dev-Yol (Revolutionary Way) were kept in police custody in Ankara between the dates listed below and were placed in detention on remand upon a decision of the Ankara Martial Law Court.   Name of the applicant Period of Police Custody End of detention on remand 1)Fikri Tamkoç 02.03.1981 - 21.04.1981 24.03.1986 2)Halil Kızılöz 01.12.1980 - 06.02.1981 24.04.1985 3)Mehmet Baha Çetintaş 05.02.1981 - 15.05.1981 currently detained 4)Yılmaz Ergül 17.07.1980 - 08.08.1980 currently detained 5)İbrahim Arslan 09.07.1981 - 17.09.1981 currently detained 6)Ercan Uğur 18.08.1981 - 02.09.1981 19.01.1987 7)İsmail Tayfun Üstün 27.12.1980 - 04.03.1981 11.11.1987 8)Abdullah Evcil 09.04.1981 - 09.06.1981 currently detained 9)Abdullah Şengörenoğlu 06.12.1980 - 04.02.1981 currently detained 10)İsmail Tümay 12.12.1980 - 04.02.1981 currently detained 11)Ziya Uncu 24.11.1980 - 20.02.1981 24.03.1986 12)Mehmet Üresin 17.07.1980 - 08.08.1980 currently detained 13)Naci Zaman 17.09.1980 - 31.10.1980 currently detained 14)Özgür Ovacık 24.09.1980 - 31.10.1980 currently detained 15)Kemal Elhan 27.10.1978 - 27.11.1978 16.06.1986 16)Murat Parlakay 23.11.1980 - 27.01.1981 14.12.1988 17)Celal Mut 01.10.1980 - 14.11.1980 14.12.1988 18)Mehmet Hassoy 24.01.1981 - 15.04.1981 14.12.1988 19)Şaban Değirmenci 17.02.1981 - 04.05.1981 25.03.1986 20)Bedia Zehra Torun 22.01.1981 - 15.04.1981 06.06.1984 21)Arif Kandemir 10.09.1981 - 19.10.1981 31.12.1983 22)Nejdet Özen 11.04.1981 - 09.06.1981 21.03.1984 23)Metin Bakkalcı 08.10.1980 - 31.10.1980 17.12.1985 24)Lütfi Doğan Tılıç 20.04.1981 - 10.06.1981 26.11.1983 25)Hürriyet Eğer 02.09.1979 - 19.09.1979 23.04.1981 - 25.06.1981 04.03.1980 17.12.1985 26)Esma Güzel 09.12.1980 - 27.01.1981 31.12.1981 27)Tuncay Kara 24.11.1980 - 24.12.1980 24.02.1983 28)Ali Özkan Çakırlar 01.12.1980 - 06.02.1981 31.12.1983 29)Ertuğrul Özbek 31.08.1980 - 18.09.1980 04.10.1984 30)Mehmet Şahin 04.09.1980 - 18.09.1980 04.10.1984 31)Mehmet Akif Aküzüm 31.10.1980 - 27.01.1981 31.12.1983 32)Mehmet Nuri Sarpkaya 11.11.1980 - 27.01.1981 04.02.1984 33)Abdülrezzak Erten 29.10.1980 - 27.01.1981 15.09.1983 34)Burhan Çam 07.11.1980 - 04.02.1981 26.02.1985 35)Hacı Badem 09.09.1980 - 13.10.1980 19.01.1987 36)Sami Altuntaş 29.10.1980 - 26.11.1980 11.06.1983 37)Ahter Yıldız 12.07.1981 - 04.09.1981 15.10.1983 38)Recai Kireç 07.09.1979 - 24.09.1979 26.12.1979 39)Halil Ulutaş 21.09.1984 - 06.11.1984 19.03.1985     On 26 February 1982 the Military Public Prosecutor instituted criminal proceedings against altogether 723 defendants including the present applicants.     It was alleged that the applicants were members of an illegal organisation whose aim was to undermine the constitutional order and replace it with a Marxist-Leninist regime. The prosecution called for the applicants to be sentenced pursuant to Sections 146 and 168 of the Turkish Criminal Code.     During the court hearings, the applicants denied the statements they had made to the police and alleged that these had been given under duress.     Some of the applicants were released pending trial as indicated in the above table.     On 19 July 1989 the Ankara Martial Law Court found the applicants guilty as charged and sentenced them to various terms of imprisonment.     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 a non-military court, namely, the Court of Cassation.     On 27 December 1995 the Court of Cassation decided   -   to uphold the judgment of the first-instance court as regards 13 of the applicants (Baha Çetintaş, Yılmaz Ergül, Mehmet Üresin, İbrahim Arslan, Tayfun Üstün, Abdullah Evcil, Kemal Elhan, Ercan Uğur, Naci Zaman, Özgür Ovacık, Abdullah Şengörenoğlu, İsmail Tümay, Ziya Uncu),   -   to quash the judgment of the first-instance court on the ground that the court had failed to apply the legal provisions relevant to the crime in question, as regards 3 of the applicants (Murat Parlakay, Celal Mut, Mehmet Hassoy) and to transfer the case to the first instance court,   -   to quash the judgment without remitting the case back to the first-instance court as regards 9 of the applicants (Arif Kandemir, Hürriyet Eğer, Nejdet Özen, Lütfi Doğan Tılıç, Bedia Zehra Torun, Fikri Tamkoç, Halil Kızılöz, Metin Bakkalcı, Şaban Değirmenci). Accordingly, it revised the judgment as regards the above-mentioned applicants and finally sentenced the applicants to various terms of imprisonment.     As regards 14 of the applicants (Tuncay Kara, Ertuğrul Özbek, Mehmet Şahin, Burhan Çam, Esma Güzel, Ali Özkan Çakırlar, Mehmet Akif Aküzüm, Mehmet Nuri Sarpkaya, Abdülrezzak Erten, Hacı Badem, Sami Altıntaş, Ahter Yıldız, Recai Kireç, Halil Ulutaş), the Court of Cassation ordered that the criminal proceedings be terminated on the ground that the statutory time-limit under Section 102 had expired.   COMPLAINTS   1)   The applicants complain under Article 3 of the Convention that they had been subjected to various forms of ill-treatment during their police custody. They claim to have been suspended from their arms, given electric shocks, beaten with truncheons on the soles of their feet, verbally abused, hosed with cold water and denied food and liquids.   2)   The applicants further complain about the excessive length of their police custody. They invoke Article 5 § 3 of the Convention.   3)   The applicants allege that they did not have a fair trial before the national courts in that their case was not heard by an independent and impartial tribunal, that the courts based their judgments on statements taken by the police under duress, and that they did not have adequate time for preparation of their defence.   4)   The applicants allege that the criminal proceedings brought against them were not concluded within a reasonable time as required by Article 6 of the Convention.     THE LAW   A. AS REGARDS THE FIRST TWO APPLICANTS:     As regards the first two applicants, Fikri Tamkoç and Halil Kızılöz, the Court notes that the facts and the complaints they allege are the same as those already submitted in applications No. 31881/96 for Fikri Tamkoç and in 32962/96 for Halil Kızılöz, which were communicated to the respondent Government on 2 July 1997 by a partial decision of the Commission. As the present applications do not submit any new information, the Court considers that the applications as regards these two applicants should be dismissed in accordance with Article 35 § 2 (b) of the Convention.   B. AS REGARDS THE REST OF THE APPLICANTS:   1)   The applicants complain under Article 3 of the Convention that they had been subjected to various forms of ill-treatment during their police custody. They claim to have been suspended from their arms, given electric shocks, beaten with truncheons on the soles of their feet, verbally abused, hosed with cold water and denied food and liquids.     The Court notes that the police custody of the applicants ended on various days between 1978 and 1984.     The Court recalls that according to the Turkish Government’s declaration made on 28   January 1987, pursuant to Article 25 of the Convention, the Court’s competence to examine individual petitions extends only to facts and judgments based on events occurring after that date. The Court notes that the above complaint concerns a period prior to 28   January 1987.     Consequently, this part of the application is outside the competence of the Court ratione temporis and must accordingly be rejected as incompatible with the provisions of the Convention, within the meaning of Article 35 of the Convention.   2)   The applicants further complain about the excessive length of their police custody. They invoke Article 5 § 3 of the Convention.     The Court notes that the applicants’ police custody ended on various days between 1978 and 1984.     The Court recalls that according to the Turkish Government’s declaration made on 28   January 1987, pursuant to Article 25 of the Convention, the Commission’s competence to examine individual petitions extends only to facts and judgments based on events occurring after that date. The Court notes that, on the assumption that its own competence is governed by this declaration, the above complaint concerns a period prior to 28   January 1987.     Consequently, this part of the application is outside the competence of the Court ratione temporis and must accordingly be rejected as incompatible with the provisions of the Convention, within the meaning of Article 35 of the Convention.   3)   The applicants allege that their case was not heard by an independent and impartial tribunal. They also submit that they did not have a fair trial before the national courts in that the courts based their judgments on statements they had given to the police under duress and that they did not have adequate time for preparation of their defence.     The Court notes that the charges against 14 applicants, whose names are indicated in the above table (Nos. 26-39), were withdrawn on the ground that the statutory time-limit had expired.     The Court recalls that the withdrawal of criminal proceedings instituted against the applicants constitutes redress of the violations, which would have infringed their rights under the Convention (No. 5575/72, Dec. 8.7.1974, D.R.1, p. 44 and Cankoçak v. Turkey, Nos.   25182/94 and 26956/95 partially inadmissible on the same ground).     Accordingly these 14 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 35 of the Convention.     However, for the remaining 23 applicants (Nos. 3-25), the Court 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 54 § 3(b) of the Rules of Procedure, to give notice of them to the respondent Government.   4)   The applicants allege that the criminal proceedings brought against them were not concluded within a reasonable time as required by Article 6 of the Convention.     The Court considers that it cannot, on the basis of the file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 3(b) of the Rules of Procedure, to give notice of it to the respondent Government.   For these reasons, the Court, unanimously,     DECIDES TO DISMISS the examination of the case as regards the applicants, Fikri   Tamkoç and Halil Kızılöz,   DECIDES TO ADJOURN the examination of the complaints as to the length of proceedings for all of the applicants (nos. 3-39) and as regards the fairness of proceedings for applicants Nos. 3-25 only,   DECLARES INADMISSIBLE the remainder of the application for all of the applicants.           Michael O’Boyle   Elisabeth Palm   Registrar   President APPENDIX   LIST OF APPLICANTS       1)Fikri Tamkoç, who was born in 1952, resides in Ankara. 2)Halil Kızılöz, who was born in 1957, resides in Ankara 3)Mehmet Baha Çetintaş, who was born in 1950, resides in İstanbul 4)Yılmaz Ergül, who was born in 1957, resides in Bursa 5)İbrahim Arslan, who was born in 1955, resides in Samsun 6)Ercan Uğur, who was born in 1958, resides in Ankara 7)İsmail Tayfun Üstün, who was born in 1957, resides in Ankara 8)Abdullah Evcil, who was born in 1955, resides in Ankara 9)Abdullah Şengörenoğlu, who was born in 1955, resides in Ankara 10)İsmail Tümay, who was born in 1959, resides in Çanakkale 11)Ziya Uncu, who was born in 1957, resides in Bilecik 12)Mehmet Üresin, who was born in 1952, resides in Tarsus. 13)Naci Zaman, who was born in 1960, resides in Ankara 14)Özgür Ovacık, who was born in 1960, resides in Ankara 15)Kemal Elhan, who was born in 1959, resides in Ankara 16)Murat Parlakay, who was born in 1957, resides in Ankara 17)Celal Mut, who was born in 1956, resides in Ankara 18)Mehmet Hassoy, who was born in 1957, resides in İzmir 19)Şaban Değirmenci, who was born in 1956, resides in Balıkesir. 20)Bedia Zehra Torun, who was born in 1957, resides in Ankara 21)Arif Kandemir, who was born in 1954, resides in Ankara 22)Nejdet Özen, who was born in 1957, resides in Ankara 23)Metin Bakkalcı, who was born in 1956, resides in İzmir 24)Lütfi Doğan Tılıç, who was born in 1960, resides in Ankara 25)Hürriyet Eğer, who was born in 1959, resides in Ankara 26)Esma Güzel, who was born in 1951, resides in Ankara 27)Tuncay Kara, who was born in 1963, resides in Ankara 28)Ali Özkan Çakırlar, who was born in 1959, resides in Ankara 29)Ertuğrul Özbek, who was born in 1962, resides in Ankara 30)Mehmet Şahin, who was born in 1959, resides in Ankara 31)Mehmet Akif Aküzüm, who was born in 1956, resides in Ankara 32)Mehmet Nuri Sarpkaya, who was born in 1954, resides in Ankara 33)Abdülrezzak Erten, who was born in 1953, resides in Ankara 34)Burhan Çam, who was born in 1958, resides in Ankara 35)Hacı Badem, who was born in 1955, resides in Ankara 36)Sami Altuntaş, who was born in 1956, resides in Ankara 37)Ahter Yıldız, who was born in 1960, resides in Ankara 38)Recai Kireç, who was born in 1963, resides in Ankara 39)Halil Ulutaş, who was born in 1960, resides in Manisa     [] See annex for a list of the applicants