Kanbur, Baspinar, Dinleten, Metinoglu, Özcan, Saritac, Zülal, Üygur, Cilengir, Binbir, Bekdemir, Adiyaman, Genc, Akcam, Keskin, Karademir and Akyazi v. Turkey



AS TO THE ADMISSIBILITY OF

Applications Nos.

28291/95, 29280/95, 29911/96, 29912/96,

29913/96, 29699/96, 29700/96, 29701/96,

29702/96, 29703/96, 31853/96, 31880/96,

31891/96, 32987/96, 32964/96, 32990/96,

33362/96 against Turkey

The European Commission of Human Rights (Second Chamber) sitting in

private on 9 April 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

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 applications, listed in the Annex to this

decision;

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 listed in the annex are all Turkish citizens.

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 at

various dates between March 1978 and March 1982 and they were

subsequently detained on remand upon decisions of the Ankara court-

martial. Some of them were released pending trial.

The details are as follows:

The applicant and Periods of End of the Present

No. of the police detention Situation

Application custody on remand

28291/95 5.03.1982 19.07.1989 served his sentence

Yasar Kanbur 26.04.1982

29280/95 22.01.1981 23.07.1991 served his sentence

Ali Baspinar 23.04.1981

29699/96

Ertugrul Dinleten 26.06.1979

29.06.1979 17.08.1990 served his sentence

29700/96

Hayati Metinoglu 12.08.1979

1.10.1979 16.11.1989 served his sentence

29701/96

Süleyman Özcan 20.03.1980

4.04.1980 4.06.1990 served his sentence

29702/96

Bülent Saritaç 15.06.1979

11.07.1979 8.11.1984 served his sentence

29703/96

Mustafa Züla l3.04.1979

4.07.1979 4.06.1990 served his sentence

29911/96

Hikmet Uygur 19.10.1980

4.11.1980 8.11.1984 served his sentence

29912/96

Saim Çilengir 21.04.1979

28.04.1979 6.05.1980 served his sentence

29913/96

Aziz Binbir 15.03.1978

22.03.1978 10.02.1984 served his sentence

31853/96

Melih Bekdemir 22.01.1981

23.04.1981 19.07.1989 still in prison

31880/96

Hidir Adiyaman 31.08.1981

19.10.1981 18.05.1987 served his sentence

31891/96

Erdogan Genç 2.12.1980

2.02.1981 14.12.1988 served his sentence

32964/96

Cahit Akçam 17.11.1980

20.02.1981 14.12.1988 served his sentence

32987/96

Hüsamettin Keskin 3.11.1980

30.01.1981 24.08.1988 served his sentence

32990/96

Hicabi Karademir 25.09.1981

25.10.1980 6.02.1985 served his sentence

33362/96

Aydin Akyazi 26.11.1980

14.02.1980 25.8.1988 served his sentence

On 26 February 1982 the military prosecutor filed a bill of

indictment in the court-martial against altogether 723 defendants

including the present applicants.

It was alleged that the applicants had founded an organisation,

in which some of them also played a leading role, and whose aim was to

undermine the constitutional order and replace it with a Marxist-

Leninist regime, that they had advocated the need to set up resistance

committees against attacks by extreme right-wing militants, and that

they had instigated a number of violent acts. The prosecution called

for the applicants to be sentenced pursuant to Article 146 of the

Turkish Criminal Code.

After martial law was lifted, the Ankara court-martial took the

name of the court-martial attached to the 4th army corps.

In a judgment of 19 July 1989, the court-martial found the

applicants guilty of the offences as charged, and sentenced them to

various terms of imprisonment.

The case was automatically referred to the Supreme Military Court

due to the provision of Article 305 of the Turkish Code of Criminal

Procedure which stipulates that there is an automatic appeal where the

sentence passed at first instance exceeds fifteen years' imprisonment.

Following the law promulgated on 27 December 1993, the case-file

was transferred to the Court of Cassation. On 27 December 1995 the

Court of Cassation held that the first instance court had failed to

evaluate all the evidence regarding the applicants' situation.

Therefore it quashed the relevant parts of the court decision

concerning the applicants. The criminal proceedings were referred back

to the State Security Court where they are still pending.

COMPLAINTS

1 All applicants complain that the criminal proceedings brought

against them were not dealt with within a "reasonable time" as required

by Article 6 para. 1 of the Convention.

2 The applicants:

Ali Baspinar

Hüsamettin Keskin

Hicabi Karademir

Aydin Akyazi

complain under Article 3 of the Convention of the conditions of their

detention in police custody.

3 The applicants:

Yasar Kanbur

Ertugrul Dinleten

Hayati Metinoglu

Süleyman Özcan

Bülent Saritaç

Mustafa Zülal

Hikmet Uygur

Saim Çilengir

Aziz Binbir

Hidir Adiyaman

Erdogan Genç

Cahit Akçam

complain under Article 5 para. 3 of the Convention that their detention

on remand was prolonged beyond a reasonable time.

4 The applicants:

Hüsamettin Keskin

Aydin Akyazi

also complain under Article 5 para. 4 of the Convention that it was

impossible for them to lodge a complaint in order to challenge the

lawfulness of their detention. On the basis of the same facts, they

allege that they have been deprived of their right to compensation

under Article 5 para. 5 of the Convention.

5 The applicants:

Yasar Kanbur

Ali Baspinar

Hidir Adiyaman

Erdogan Genç

Cahit Akçam

Aydin Akyazi

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.

6 The applicants:

Yasar Kanbur

Ali Baspinar

Hidir Adiyaman

Erdogan Genç

Cahit Akçam

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.

They also claim 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,

courts-martial continued to try cases pending before them.

7 The applicants:

Yasar Kanbur

Hidir Adiyaman

Erdogan Genç

Cahit Akçam

Hüsamettin Keskin

Aydin Akyazi

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.

8 The applicants:

Hüsamettin Keskin

Aydin Akyazi

allege violation of Articles 9 and 10 of the Convention. They state

that the investigations carried out against them were the direct

consequence of conflicting views between them and the Turkish

authorities on the current political system.

THE LAW

1 Certain applicants complain under Article 3 (Art. 3) of the

Convention about the conditions of their police custody. They allege

that during their interrogation by the police they were subjected to

various forms of ill-treatment, without giving any details of the

alleged ill-treatment.

The applicants Saritaç, Uygur, Binbir and Karademir 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 1980 and 1984.

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 under Articles 3 and 5 para. 3 (Art. 3, 5-3) of the

Convention concern a period which is prior to 28 January 1987.

It follows that the applicants' complaints in this respect 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 Certain other applicants whose detention on remand continued

after 28 January 1987 also complain that the length of this detention

exceeded a reasonable time within the meaning of Article 5 para. 3

(Art. 5-3) of the Convention or, alternatively, that because of its

excessive length it could not be considered as a provisional measure,

but constituted an anticipatory sentence, infringing the presumption

of innocence under Article 6 para. 2 (Art. 6-2) of the Convention.

The Commission recalls that according to Article 26 (Art. 26) of

the Convention, it may only deal with applications introduced within

a period of six months after the final decision or, where there are no

domestic remedies available, after the end of the situation complained

of.

In this respect the Commission observes that the applicants'

detention on remand within the meaning of Article 5 para. 1(c) and 3

(Art. 5-1-c, 5-3) ended at the latest on 19 July 1989 when they were

convicted in first instance, whereas the applications were submitted

to the Commission at various dates in 1995 and 1996 (see annex), that

is more than six months after the end of the situation complained of.

It follows that the applicants' above complaints have been

introduced out of time and must be rejected under Article 27 para. 3

(Art. 27-3) of the Convention.

3 Certain applicants complain under Article 6 para. 1 (Art. 6-1)

of the Convention that they did not have a fair trial as statements

made to the police under duress constituted the basis of their

conviction by the military court.

Certain applicants 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 also claim that the case was not

heard by a tribunal established by law within the meaning of Article

6 para. 1 (Art. 6-1) of the Convention. The Commission notes that these

complaints relate exclusively to the military court which formerly

dealt with the proceedings against the applicants.

The Commission further notes that the criminal proceedings

against the applicants are still pending before the State Security

Court.

According to its constant case-law, the Commission must take into

consideration the entire criminal proceedings brought against the

applicants in order to express an opinion as to whether they comply

with the requirements of Article 6 (Art. 6) of the Convention (cf. e.g.

Nos. 23878/94, 23879/94, 23880/94, 23881/94, 23882/94, 23883/94, Dec.

25.5.95, D.R. 81-B p. 94).

The introduction of the above complaints therefore appears

premature given the current stage of the proceedings before the

domestic courts. The applicants cannot complain at this stage of any

violation of the Convention during the early phase of the proceedings

concerned. They may re-submit the case to the Commission if, following

the outcome of the criminal proceedings against them, they still

consider themselves victims of violations of the Convention in the

above respects. The present complaints on this point must therefore be

rejected as manifestly ill-founded pursuant to Article 27 para. 2

(Art. 27-2) of the Convention.

4 All applicants complain that the criminal proceedings brought

against them were not dealt with 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.

For these reasons, the Commission,

DECIDES TO JOIN THE APPLICATIONS,

DECIDES TO ADJOURN the examination of the applicants' complaints

related to the length of the criminal proceedings instituted

against them,

unanimously,

DECLARES INADMISSIBLE the remainder of the applications.

M.-T. SCHOEPFER G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber