AS TO THE ADMISSIBILITY OF

Application No. 31312/96

by Erkan EĞİNLİOĞLU

against Turkey

The European Commission of Human Rights (Second Chamber) sitting in private on 21 October 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

D. ŠVÁBY

P. LORENZEN

E. BIELIŪNAS

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 22 April 1996 by Erkan EĞİNLÄ°OÄžLU against Turkey and registered on 2 May 1996 under file No. 31312/96;

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, who was born in 1952, is a Turkish citizen resident in Ankara. He is represented before the Commission by Mr Fehmi Koç , a lawyer practising in Ankara.

The facts of the present case, as submitted by the applicant, may be summarised as follows.

The applicant, who was accused of being a member of the organisation called Dev-Yol "Revolutionary Way", was taken into police custody in Ankara on 12 September 1984.

On 26 October 1984 he was placed in detention on remand by order of the Ankara Martial Law Court. On 26 May 1986 he was released pending trial.

The military prosecutor filed two criminal complaints against the applicant with the Ankara Martial Law Court on 20 December 1984 and on 10 May 1985.

It was alleged that the applicant was a member 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 applicant to be sentenced pursuant to Section 146 of the Turkish Criminal Code.

On 19 July 1995 the Ankara Martial Law Court found the applicant guilty as charged and sentenced him to 5 years' imprisonment.

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 the law promulgated on 27 December 1993, the case-file was transferred to a non-military court, the Court of Cassation , by Act no. 3953.

On 27 December 1995 the Court of Cassation ordered that the criminal proceedings be terminated because the statutory time-limit under Section 102 of the Turkish Criminal Code had expired.

COMPLAINTS

1. The applicant complains under Article 3 of the Convention that he was subjected to inhuman treatment and torture during his detention in police custody.  The applicant further complains under Article 5 para. 3 of the Convention that his detention on remand between 1984 and 1986 was prolonged beyond a reasonable time.

2. He submits under Article 6 para. 1 of the Convention that his case was not heard by an independent and impartial court, as required by Article 6 para. 1 of the Convention. He also complains under Article 10 of the Convention that the investigations carried out into his conduct were the direct consequence of the conflicting views of himself and the Turkish authorities on the current political system.

3. 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.

THE LAW

1. The applicant complains under Article 3 of the Convention that he was subjected to inhuman treatment and torture during his detention in police custody. The applicant further complains under Article 5 para. 3 of the Convention that his detention on remand between 1984 and 1986 was prolonged beyond a reasonable time.

The Commission recalls that the declaration made by Turkey on 28 January 1987, pursuant to Article 25 of the Convention, by which Turkey recognised the right of individual petition, 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 of the Convention concern a period which is prior to 28 January 1987.

It follows that the applicant's complaints in this respect must be rejected as falling outside the competence rationae temporis of the Commission and therefore as being incompatible with the provisions of the Convention within the meaning of Article 27 para. 2.   

2. The applicant submits under Article 6 para. 1 of the Convention that his case was not heard by an independent and impartial court, as required by Article 6 para. 1 of the Convention. He also complains under Article 10 of the Convention that the investigations carried out into his conduct were the direct consequence of the conflicting views of himself and the Turkish authorities on the current political system.

The Commission observes that the criminal proceedings complained of were terminated on 27 December 1995 by order of the Court of Cassation because the statutory time-limit under Section 102 of the Turkish Criminal Code had expired. It is also noted that any defects which may have existed at the time of the applicant's trial, including the lack of impartiality on the part of the court and any interference with his freedom to hold opinions, must be considered to have been rectified by the termination of the criminal proceedings, and thus the applicant is no longer the victim of the alleged violation (see, mutatis mutandis , Application No. 8083/77, X v. the United Kingdom, D.R. 19, p. 223). 

It follows that this part of the application must be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 of the Convention.  

3. 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.

The Commission 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 48 para. 2 (b) of the Rules of Procedure, to give notice of this complaint to the respondent Government. 

For these reasons, the Commission,

DECIDES TO ADJOURN the examination of the applicant's complaint concerning the length of the criminal proceedings instituted against him;

unanimously,

DECLARES INADMISSIBLE the remainder of the application.

   M.-T. SCHOEPFER                                         J.-C. GEUS

      Secretary                                                          President

to the Second Chamber                              of the Second Chamber