Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 29361/95

by Halil Yasin 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

Halil Yasin KETENOGLU against Turkey and registered on 23 November 1995

under file No. 29361/95;

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 1956, is a Turkish citizen and resident

in Hannover-Germany. He 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 7 November 1980 the Ankara police took the applicant into

custody. He 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 6 February 1981, following his 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 11 November 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 asserted 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 his objections

on the same day.

Following his release, the military prosecutor filed a new bill

of indictment against the applicant. The prosecution called for the

applicant to be sentenced to death, pursuant to Article 146 para. 1 of

the Turkish Criminal Code, and ordered the applicant to be detained on

remand.

In May 1989 the applicant, with his wife, left the country

illegally and went to Germany.

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

the applicant to 16 years' imprisonment and debarred him from

employment in the civil service under Article 168 para. 1 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 eventually

transferred to the Court of Cassation.

On 28 December 1995 the Court of Cassation ruled 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

his right to security was breached as he was always under the threat

of being detained on remand, following his release pending trial, due

to the long criminal proceedings.

2. 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.

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

he did not have a fair trial as he 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 his right to security was breached as he was always

under the threat of being detained on remand, following his release

pending trial, due to the long criminal proceedings.

The Commission recalls that the words "liberty" and "security"

must be read as a whole and refer to physical liberty and security and

a guarantee against arbitrariness of arrest and detention

(e.g. No. 10871/84, Dec. 10.7.86, D.R. 48 p. 154).

The Commission notes that the applicant was accused of being a

member of an illegal organisation and he was detained on remand by the

order of Ankara Martial Law Court. In accordance with his request, on

11 November 1985, he was released pending trial by the Martial Law

Court and later he left the country. In the present case, the

applicant's complaints concern uncertainty in his status resulting from

the criminal proceedings pending against him.

However, the Commission considers that a person's right to

security is not violated by uncertainty about an accused's status

resulting from criminal proceedings pending against him. The Commission

therefore concludes that there is no interference with the applicant's

right to security of person.

It follows that this part of the applicant's complaints must be

rejected as manifestly ill-founded 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 him were not concluded within a "reasonable time" as

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

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

Convention that he did not have a fair trial as he 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 him and his

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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KETENOGLU v. TURKEY

KETENOGLU v. TURKEY

LEXI