CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 12 avril 2001

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Thomassen , President ,   Mr   L. Ferrari Bravo ,   Mr   Gaukur Jörundsson ,   Mr   R. Türmen ,   Mr   C. Bîrsan ,   Mr   J. Casadevall ,   Mr   R. Maruste , judges , and Mr M. O’Boyle , Section Registrar , Having regard to the above application introduced with the European Commission of Human Rights on 16 December 1997 and registered on 12   February 1998, Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court, Having deliberated, decides as follows: THE FACTS The applicant is a Turkish national born in 1956 and living in Istanbul. He is represented before the Court by Ms Oya Ersoy Ataman, a lawyer practising in Ankara. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. On 15 September 1981 police officers from the Ankara Security Directorate arrested the applicant at his mother’s house in Safranbolu District of Zonguldak, on suspicion of membership of an illegal organisation, the Dev-Yol (Revolutionary Way). He was placed in custody at the Ankara Security Directorate. The applicant stated during his questioning that he had hidden the ammunition, belonging to the organisation, in the chimney of his mother’s house. A search was conducted in the house and a large number of weapons and bullets, including a Kalashnikov automatic rifle and dynamite, have been recovered. On 27 October 1981 the applicant was brought before the Military Court judge who ordered his detention on remand. On 26 February 1982 the public prosecutor at the Martial Law Court, whose jurisdiction covered Ankara, Çankırı and Kastamonu Provinces, indicted the applicant together with 723 others. The charges against the defendants included the membership of Dev-Yol, an organisation which aimed to replace the constitutional order with a Marxist-Leninist regime contrary to Article 146 of the Turkish Criminal Code. The applicant was further charged with robbery, bombing and armed attacks against persons and opening fire on three houses. On 11 November 1987 after having stayed six years, one month and eight days in the prison, the applicant was released pending trial. On 19 July 1994 the Martial Court found the applicant guilty of membership of the Dev-Yol, armed attacks on two persons, bombing of the premises belonging to two persons, opening fire on three houses and the robbery of a private bank. It was also established that the ammunition found in the house of the applicant’s mother had been used in various illegal activities. The applicant was convicted of the offence under Article 146 § 3 of the Turkish Criminal Code. The applicant appealed to the Military Court of Cassation (Askeri Yargıtay) . On 26 December 1994 following the promulgation of the Law no. 3953 of 27 December 1993 which abolished the jurisdiction of the Martial Courts, the case file was sent from the Military Court of Cassation to the Criminal Division of the Court of Cassation (Yargıtay Ceza Dairesi) . On 27 December 1995 the Court of Cassation quashed the judgment of the first instance court and sent the case file to the Ankara Assize Court for a re-sentencing under Article 146 § 1 of the Turkish Criminal Code for which the only sentence is capital punishment. The criminal proceedings against the applicant are still pending before the Ankara Assize Court. COMPLAINTS The applicant complains under Article 5 § 3 that his detention on   remand was unreasonably long. The applicant further submits that because of the excessive length   of   his   detention, it could not be considered as a provisional measure, but constituted an anticipatory sentence, infringing the presumption of innocence under Article 6   § 2 of the Convention. The applicant finally complains under Article 6 § 1 of the Convention that his right to a fair hearing was breached because the criminal proceedings brought against him were not concluded within a reasonable time and that he was tried by the Martial Law Court which lacked independence and impartiality. THE LAW 1.     The applicant complains that the length of his detention on remand exceeded the reasonable time requirement within the meaning of Article   5   §   3 of the Convention. He also complains that because of its excessive length, his detention could not be considered as a provisional measure, but it constituted an anticipatory sentence, infringing the presumption of innocence under Article 6 § 2 of the Convention. The Court recalls that pursuant to Article 35 § 1 of the Convention, “the Court may only deal with the matter within a period of six months from the date on which the final decision was taken. In the absence of domestic remedies, the six-month period runs from the date of the act complained of.” The Court observes that the applicant was released from detention on remand on 11 November 1987 pending trial. He introduced the application on 16 December 1997, i.e. more than six months later. It follows that these complaints have been introduced out of time and must be rejected under Article 35 § 1 of the Convention. 2.     The applicant further complains under Article 6 § 1 of the Convention that his right to a fair hearing was breached because the criminal proceedings brought against him were not concluded within a reasonable time. The Court considers that it cannot, on the basis of the case file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 3 of the Rules of Court, to give notice of this part of the application to the respondent Government. 3.     The applicant finally complains that his right to a fair hearing was breached because he was tried and convicted by the Martial Law Court which lacked independence and impartiality. He invokes Article 6 § 1 of the Convention which provides, in so far as relevant:     “In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal”   The Court notes that the applicant’s conviction by the Martial Law Court was quashed by the Court of Cassation on 27 December 1995. A re-trial was ordered and the case file was sent to the Ankara Assize Court, of which independence and impartiality was not challenged by the applicant. The criminal proceedings against the applicant are still pending before this court. In these circumstances, the Court finds that the alleged violation of the applicant’s right under Article 6 § 1 of the Convention on account of his conviction by the Martial Law Court and the proceedings concerned were rectified at the domestic level. Consequently, the applicant cannot claim to be a victim of a violation of his right under Article 6 § 1 of the Convention. It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. For these reasons, the Court unanimously Decides to adjourn the examination of the applicant’s complaint about his right to a fair hearing within a reasonable time. Declares inadmissible the remainder of the application.   Michael O’Boyle   Wilhelmina Thomassen   Registrar   President