CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 20 novembre 2007

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Tulkens , President ,   Mr   I. Cabral Barreto ,   Mr   R. Türmen ,   Mr   M. Ugrekhelidze ,   Mr   V. Zagrebelsky ,   Mrs   A. Mularoni ,   Mrs   D. Jočienė, judges , and Mr S. Dollé , Section Registrar , Having regard to the above application lodged on 27 August 2001, Having deliberated, decides as follows: THE FACTS The applicants, Mr Süalp Çekmeci, Mr İbrahim Varol, Mrs Gevher Demirel, Mr Atilla Akgönül, Mr Hulusi Zeybel, Mr Turgay Nazari, Mrs   Mine Yarıcı (Nazari), Mr Gürsel Koç and Mr Nejdet Coşkun, are Turkish nationals. The applicant Gevher Demirel is the mother of Hüseyin Demirel who died on 15 April 2001. (Her son is one of the subjects of the events described below under the denomination of “applicants”. She herself was not arrested.) They are represented before the Court by Mr F.A. Tamer and Ms Şennur Baybuğa, lawyers practising in İstanbul. The facts of the case, as submitted by the applicants, may be summarised as follows. On different dates in 1980 the applicants (but Mrs Demirel) were taken into police custody on suspicion of membership of an illegal organisation. They were subsequently arrested and detained pending trial within the context of criminal proceedings concerning 223 incidents brought against 259 suspects. On various dates in 1980, 1981 and 1991, the applicants were released pending trial. On 27 September 1984 the Istanbul Martial Law Court convicted the applicants under Articles 146, 168 and 169 of the former Criminal Code. The court further permanently debarred the applicants from employment in the civil service and placed them under judicial guardianship. On 6 June 1990 the Military Court of Cassation quashed the judgment of the first-instance court. On 6 April 1993 the Istanbul Martial Law Court convicted Süalp Çekmeci, Hüseyin Demirel, Hulusi Zeybel, Atilla Akgönül, Turgay Nazari, Necdet Coşkun and Gürsel Koç under Article 146 of the former Criminal Code. The court acquitted Mine Yarıcı of the charges against her. As for İbrahim Varol the court held that the statutory time-limit under Articles 102 and 104 of the Turkish Criminal Code had expired. Following promulgation of the Law of 26 December 1994 abolishing the jurisdiction of the martial law courts, the Court of Cassation acquired jurisdiction over the case and the case file was forwarded to it. On 27 September 2000 the Court of Cassation quashed the judgment in respect of Gürsel Koç on the ground that the statutory time-limit under Articles 102 and 104 of the Turkish Criminal Code had expired. The Court of Cassation upheld the judgment in respect of the other applicants. On 14 January 2002 the decision of the Court of Cassation was deposited with the registry of the Üsküdar Assize Court which functioned as the Istanbul Martial Law Court before the promulgation of the Law of 26   December 1994. COMPLAINTS The applicants complain under Article 3 of the Convention that the decision to debar them permanently from the civil service and the uncertainty of excessively long proceedings subjected them to psychological pressure. Invoking Article 6 § 1 of the Convention, the applicants claim that they had been held incommunicado during the excessively long police custody period. They add that they were subjected to torture and that they were not allowed access to their lawyers while in police custody. They maintain that their detention pending trial had also been excessively long. The applicants assert that the military was present at all stages of the criminal proceedings which were not concluded within a reasonable time. THE LAW 1.     The applicants claim that the decision to debar them permanently from the civil service and the uncertainty of excessively long proceedings subjected them to psychological pressure in breach of Article 3 of the Convention. The Court reiterates that, to fall within the scope of Article 3 of the Convention, the alleged treatment must attain a minimum level of severity (see Ireland v. the United Kingdom , judgment of 18 January 1978, Series   A no.   25, p. 65, §   162). In the present case there is no indication that the treatment complained of reached the threshold of severity bringing the matter within the scope of Article 3 (see, Fikri Demir v. Turkey (dec.), 55373/00, 30 August 2005). It follows that this part of the application should be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. 2.     The applicants invoke Article 6 of the Convention and claim that they were held incommunicado in police custody for an excessive length of time without being brought before a judge. They further add that the length of their detention pending trial was excessive. The Court points out that the applicants’ above allegations, as well as those concerning the period of police custody, fall within the scope of Article 5 of the Convention. The applicants further submit under Article 6 § 1 of the Convention that their right to a fair hearing within a reasonable time by an independent and impartial tribunal was breached. In this regard, they assert, inter alia, that the military was present at all stages of the criminal proceedings and that the criminal proceedings brought against them were not concluded within a reasonable time. a.     As regards the victim quality of Gevher Demirel, the mother of Hüseyin Demirel The Court notes that the facts related above concern, inter alia , Hüseyin Demirel, who died on 15 April 2001. They did not directly involve his mother, Gevher Demirel, who lodged the application after his death. The Court considers, therefore, that Mrs Demirel does not have a sufficient legal interest to justify an examination of the application on his behalf (see, among others, Biç and Others v. Turkey , no. 55955/00 (Sect. 3) (Eng) – (2.2.06)). Accordingly, Gevher Demirel cannot claim to be a victim within the meaning of Article 34 of the Convention regarding her complaints raised under Articles 5 and 6 of the Convention. It follows that Gevher Demirel’s complaints are incompatible ratione personae with the provisions of the Convention, within the meaning of Article 35   § 3, and must be rejected pursuant to Article 35   §   4. b.     Allegations concerning the length of the periods of the applicants’ police custody and detention pending trial i.     Allegations concerning the applicants’ police custody The Court observes that the other applicants’ detention in police custody ended on different dates on 1980 and 1981. The Court reiterates that it can only consider the period which elapsed after 28 January 1987, the date on which Turkey recognised the competence of the Convention organs to examine individual petitions. The Court notes that the above complaint concerns a period prior to that date. Consequently, this part of the application is outside the Court’s competence ratione temporis and must, accordingly, be rejected as being incompatible with the provisions of the Convention, within the meaning of Article 35 § 3 of the Convention. ii     Allegations regarding the applicants’ detention pending trial In respect of the applicants Mine Yargıcı, Hulusi Zeybel and İbrahim Varol The Court observes that the periods in question ended in 1980, 1981 and 1983 for Mine Yargıcı, Hulusi Zeybel and İbrahim Varol respectively. This part of their application falls outside the Court’s competence ratione temporis and must accordingly be rejected as being incompatible with the provisions of the Convention, pursuant to Article 35 §§ 3 and 4 of the Convention. In respect of the remaining applicants The period in question ended on various dates in 1991 for the remaining applicants. However, the application was lodged with the Court on 27   August 2001, which is more than six months from the date of the events giving rise to the alleged violation. It follows that this complaint has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.   c.     Allegations concerning independence and impartiality i.     In respect of the applicants Gürsel Koç, Mine Yarıcı and İbrahim Varol The Court observes that the criminal proceedings against Gürsel Koç and İbrahim Varol were discontinued as the prosecution of the offences had become time-barred whereas Mine Yarıcı was acquitted. Consequently, they were not convicted and cannot, therefore, claim to be victims of the alleged violations of Article 6 § 1 of the Convention. It follows that this part of the application is incompatible ratione personae with the provisions of the Convention and must be rejected pursuant to Article   35 §§ 3 and 4. ii.     In respect of the remaining applicants As for the remaining applicants, the Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government. d.     Allegations concerning the length of proceedings The applicants also complained that the length of criminal proceedings exceeded the reasonable time requirement of Article 6   §   1 of the Convention. The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of it to the respondent Government. For these reasons, the Court unanimously Decides to adjourn the examination of the applicants’ complaints concerning the length of criminal proceedings (except for Gevher Demirel) as well as the independence and impartiality of the Martial Law Court that tried them (except for Gürsel Koç, İbrahim Varol, Mine Yarıcı and Gevher Demirel); Declares the remainder of the application inadmissible.   S. Dollé   F. Tulkens   Registrar   President