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PEKDAS v. TURKEY

Doc ref: 31960/96 • ECHR ID: 001-3890

Document date: September 11, 1997

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Cited paragraphs: 0
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PEKDAS v. TURKEY

Doc ref: 31960/96 • ECHR ID: 001-3890

Document date: September 11, 1997

Cited paragraphs only

AS TO THE ADMISSIBILITY OF

Application No. 31960/96

by Ali ihsan PEKDAS

against Turkey

The European Commission of Human Rights (Second Chamber) sitting

in private on 11 September 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

Ali ihsan Pekdas against Turkey and registered on 18 June 1996 under

file No. 31960/96;

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 1953, resides in izmir.

He is represented before the Commission by Mehdi Bektas, 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 25 November 1980 and was subsequently detained on remand following

a decision of the Ankara Court-Martial on 6 February 1981. He was

released on 21 March 1984.

On 26 February 1982 the military prosecutor filed a bill of

indictment in the Court-Martial against altogether 723 defendants

including the applicant.

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. In addition it was alleged

that he had acted on behalf of the organisation and hidden two weapons

together with some explosives. The prosecution called for the applicant

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 Court-Martial attached to the 4th army corps. It continued to

deal with this case until 27 December 1993, pursuant to a provision in

Article 23 of the Martial Law Act (no. 1402) of May 1971, amended on

19 September 1982.

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

applicant guilty of the offences as charged, and sentenced him to eight

years' imprisonment.

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 the non-military court, the Court of Cassation,

by Act No. 3953. On 27 December 1995 the Court of Cassation held that

regarding the applicant the prosecution was time-barred in accordance

with the principles of prescription. The judgment concerning the

applicant was based on the following reasons:

"...it has been decided to quash the decision of the first

instance court pursuant to Article 301 of Code of Criminal

Procedure as it is apparent that the lapse of time prescribed in

Articles 102 para. 3, 104 para. 2 of the Turkish Criminal Code

has expired, and there is no need for retrial of this matter in

accordance with Article 322 of the Code of Criminal Procedure.

Therefore it has been decided to terminate the public prosecution

against the above-mentioned defendants..."

COMPLAINTS

1. The applicant complains that the criminal proceedings brought

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

by Article 6 para. 1 of the Convention.

He also 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. He 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,

Courts-Martial continued to try cases pending before them.

THE LAW

1. The applicant complains under Article 6 para. 1 (Art. 6-1) of the

Convention that he did not have a fair trial as his statements made to

the police under duress constituted the grounds of the court's

decision.

The applicant further 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

continued to try cases pending before it.

However the Commission notes that the charges against the

applicant were withdrawn on the ground of prescription.

The Commission recalls that the withdrawal of the criminal

proceedings instituted against the applicant constitutes redress of the

violations which would have infringed their rights under the Convention

(No. 5575/72, Dec. 8.7.74, D.R. 1, p. 44). It also recalls that on

24 October 1995 the Commission declared the applications Cankocak

against Turkey (Nos. 25182/94 and 26956/95) partly inadmissible on the

same ground.

Accordingly, the applicant can no longer claim to be a victim of

a violation in respect of these matters. Therefore this complaint must

be dismissed as manifestly ill-founded within the meaning of Article

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

2. The applicant lastly 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.

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

related to the length of the criminal proceedings instituted

against him,

unanimously,

DECLARES THE REMAINDER OF THE APPLICATION INADMISSIBLE.

M.-T. SCHOEPFER G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber

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