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KETENOGLU v. TURKEY

Doc ref: 29360/95 • ECHR ID: 001-4145

Document date: March 4, 1998

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KETENOGLU v. TURKEY

Doc ref: 29360/95 • ECHR ID: 001-4145

Document date: March 4, 1998

Cited paragraphs only

AS TO THE ADMISSIBILITY OF

Application No. 29360/95

by Gülsen KETENOGLU

against Turkey

The European Commission of Human Rights (Second Chamber) sitting

in private on 4 March 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

J. MUCHA

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

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 15 May 1995 by

Gülsen KETENOGLU against Turkey and registered on 23 November 1995

under file No. 29360/95;

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, born in 1957, is a Turkish citizen and resident

in Hannover-Germany. She is represented before the Commission by

Mr Mehmet Aydin, a lawyer practising in istanbul.

The facts of the present case, as submitted by the applicant, may

be summarised as follows.

A. Particular circumstances of the case

On 13 November 1980 the Ankara police took the applicant into

custody. She was accused of being a member of the organisation Dev-Yol

(Revolutionary Way) whose aim was to undermine the constitutional order

and replace it with a Marxist-Leninist regime.

On 30 January 1981, following her detention in custody, the

Ankara Martial Law Court ordered the applicant to be detained on

remand.

On 26 February 1982 the military prosecutor filed a bill of

indictment in the Ankara Martial Law Court against 723 defendants

altogether, including the present applicant.

On 17 December 1985 the applicant was released pending trial by

the Martial Law Court.

After martial law was lifted, the Ankara Martial Law Court took

the name of Martial Law Court attached to the 4th army corps. It

continued to deal with this case even after the lifting of martial law,

pursuant to a provision in Article 23 of the Martial Law Act (no. 1402)

of May 1971, amended on 19 September 1982.

On 12 October 1987 the applicant contested before the Martial Law

Court that it was unconstitutional to be tried by a martial law court

after the lifting of martial law. The court dismissed her objections

on the same day.

In 1989 the military prosecutor filed a new bill of indictment

against the applicant's husband and called for him to be sentenced to

death, pursuant to Article 146 para. 1 of the Turkish Criminal Code.

He also ordered the applicant's husband to be detained on remand. In

May 1989 the applicant, with her husband, left the country illegally

and went to Germany.

In a judgment of 19 July 1989, the Martial Law Court sentenced

the applicant to 5 years and 6 months' imprisonment and debarred her

from employment in the civil service under Article 168 para. 2 of the

Turkish Criminal Code.

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 a law

promulgated on 27 December 1993, the case-file was transferred to the

Court of Cassation.

On 28 December 1995 the Court of Cassation decided on the appeal.

It agreed with the Martial Law Court as regards its reasoning and

assessment of the evidence.

B. Relevant domestic law

Article 168 of the Turkish Criminal Code

"Whosoever, with a view to committing any of the crimes listed

in section 125, 131, 146, 147, 149 and 156, shall form an armed

group or organisation or assume the control and command of or a

particular responsibility within such a group or organisation

shall be sentenced to a minimum term of imprisonment of fifteen

years.

The ordinary members of such a group or organisation shall be

sentenced to a term of between five and fifteen years'

imprisonment."

COMPLAINTS

1. The applicant complains under Article 5 of the Convention that

she was held in detention on remand for two years longer than the term

of her final sentence.

2. The applicant further complains that the criminal proceedings

brought against her were not concluded within a "reasonable time" as

required by Article 6 para. 1 of the Convention.

3. She also complains under Article 6 para. 1 of the Convention that

she did not have a fair trial as she was tried by the Martial Law Court

which cannot be considered to be an independent and impartial tribunal.

THE LAW

1. The applicant complains under Article 5 (Art. 5) of the

Convention that she was held in detention on remand for two years

longer than the term of her final sentence.

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

applicant was held in detention until 17 December 1985 and the above

complaint under Article 5 (Art. 5) of the Convention concerns a period

which is prior to 28 January 1987.

It follows that the applicant's complaint 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) of

the Convention.

2. The applicant further complains that the criminal proceedings

brought against her were not concluded within a "reasonable time" as

required by Article 6 para. 1 (Art. 6-1) of the Convention.

She also complains under Article 6 para. 1 (Art. 6-1) of the

Convention that she did not have a fair trial as she was tried by the

Martial Law Court which cannot be considered to be an independent and

impartial tribunal.

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 ADJOURN the examination of the applicant's

complaints concerning the length and fairness of the

criminal proceedings instituted against her and her

complaint concerning the independence and impartiality of

the Martial Law Court.

unanimously,

DECLARES INADMISSIBLE the remainder of the application.

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

Secretary President

to the Second Chamber of the Second Chamber

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