Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 31961/96

by Metin SAHiN

against Turkey

The European Commission of Human Rights (Second Chamber) sitting

in private on 22 October 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

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 7 June 1996 by

Metin SAHiN against Turkey and registered on 18 June 1996 under file

No. 31961/96 ;

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, a Turkish citizen born in 1959, resides in Izmir.

He is represented before the Commission by Mehdi Bekdas, a lawyer

practising in Ankara.

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

summarised as follows.

The applicant, accused of being a member of the organisation Dev-

Yol (Revolutionary Way), was taken into police custody in Ankara on

19 September 1979 and was subsequently detained on remand following a

decision of the Ankara Court-Martial on 24 September 1979. He was

released on 12 June 1980. The applicant was taken into police custody

again on 26 September 1980 and was detained on remand again following

a decision of the Ankara Court-Martial on 4 March 1981.

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. It was also alleged that he

had campaigned for the organisation and obtained funds and weapons for

it, made the university students in O.D.T.U. aware of Dev-Yol and

trained and organised the youth in his capacity as an executive member

of the Youth Division of Dev-Yol. In addition it was alleged that he

had instigated a number of violent acts, such as killing M.V. and M.G.

and opening fire on houses. The Prosecution called for the applicant

to be sentenced pursuant to Articles 64, 159, 142, 264 of the Turkish

Criminal Code.

The applicant, in his statement made to the police in February

1981, confessed that he had made the university students in O.D.T.U.

aware of Dev-Yol, trained and organised the youth in his capacity as

an executive member of the Youth Division of Dev-Yol, obtained funds

and weapons and campaigned for the organisation. He also stated that

he had formerly been charged with being a member of an illegal

organisation whose aim was to undermine the constitutional order and

replace it with a Marxist-Leninist regime and had been released

pending trial. On 3 March 1981 the applicant was questioned by the

Public Prosecutor at the Ankara Court-Martial. In his questioning he

confessed that he was the executive member of the Youth Division and

had made the university students in O.D.T.U. aware of Dev-Yol, but

vehemently denied all the illegal activities of which he was accused.

However, during the court hearing on 4 March 1981 the applicant

denied his statements made to the police and alleged that they had

been made under duress.

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

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

In a judgment of 19 July 1989, the Court-Martial found the

applicant guilty of the offences as charged. The court rejected the

applicant's objection that his statement to the police was made under

duress. It concluded that the applicant's and his co-activists'

statements were corroborated by the evidence which was collected

according to the statements in question. The court further held that

the applicant had been arrested in a house together with a nurse, while

he was receiving medical treatment for his wounds. According to the

applicant's co-activists' statements he was wounded during the killing

of M.V. and M.G. There was strong evidence of his relationship with the

organisation and his illegal activities. The court ruled that the

applicant had also participated in killing M.V. and M.G. It sentenced

him to life imprisonment, debarred him from employment in the civil

service and also placed him under judicial guardianship during his

detention.

Following the applicant's appeal, the case was referred to the

Military Court of Cassation.

Pursuant to Act No. 3953, promulgated on 27 December 1993, the

case-file was transferred to the Court of Cassation, a non-military

court. On 27 December 1995 the Court of Cassation upheld the first-

instance court's decision.

COMPLAINTS

1. The applicant complains that he did not have a fair trial as the

courts based their reasoning on statements which he had made to the

police under duress, which is contrary to Article 6 para. 1 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 of the Convention.

3. The applicant lastly complains that his 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, the Court-Martial continued to deal with cases pending before it.

THE LAW

1. As far as the applicant complains that, under Article 6 para. 1

(Art. 6-1) of the Convention, the criminal proceedings brought against

him were not concluded within a "reasonable time" and that he did not

have a fair trial as the courts based their reasoning on statements

which he had made to the police under duress, 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.

2. The applicant also complains that his case was not heard by a

tribunal established by law within the meaning of Article 6 para. 1

(Art. 6-1) of the Convention. In this context, he explains that

although martial law was lifted in Ankara on 19 July 1985, the Court-

Martial of Ankara continued to deal with cases pending before it.

The Commission observes that the Court-Martial remained competent

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

27 December 1993, pursuant to a provision in Article 23 of the Martial

Law Act (no. 1402) of 13 May 1971, amended on 19 September 1982. This

provision was repealed by Act No. 3953 of 27 December 1993, amending

Act No. 1402 and the case-file was transferred to the non-military

criminal courts.

The Commission further considers that in the present case, the

applicant was prosecuted and convicted on the basis of legal provisions

empowering a Court-Martial to decide, even in peacetime, cases against

civilians suspected of having committed offences designed to undermine

the constitutional system.

It follows that the Court-Martial, which tried and convicted the

applicants, may be considered to be a tribunal "established by law"

within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention

(Mitap and Müftüoglu v. Turkey, Comm. Report 8 December 1994, para. 86,

Reports of Judgments and Decisions 1996 - II No. 6).

The Commission considers that in these circumstances the

complaint has to be rejected as manifestly ill-founded within the

meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission,

DECIDES TO ADJOURN the examination of the applicant's complaints

related to the length of the criminal proceedings instituted

against him and to his right to a fair trial;

unanimously,

DECLARES INADMISSIBLE the remainder of the application.

M.-T. SCHOEPFER G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber

Menu

SAHiN v. TURKEY

SAHiN v. TURKEY

LEXI