Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 33370/96

by Arap Yalgin, Muhtat Karakoca and

Mehmet Murat Öner

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 17 June 1996 by

Arap Yalgin, Muhtat Karakoca and Mehmet Murat Öner against Turkey and

registered on 4 October 1996 under file No. 33370/96;

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 applicants, Arap Yalgin, Muthat Karakoca and Mehmet Murat

Öner, are all Turkish citizens born in 1963, 1958 and 1954 respectively

who reside in Ankara. They are represented before the Commission by Oya

Ataman, a lawyer practising in Ankara.

The facts of the cases as submitted by the applicants, may be

summarised as follows.

The applicants, accused of being members of the organisation Dev-

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

various dates between November 1980 and March 1981 and they were

subsequently detained on remand upon decisions of the Ankara Court-

Martial. They were all released pending trial.

The details are as follows:

The applicant Periods of police End of the detention

custody

Muhtat Karakoca 20.11.1980 16.06.1986

19.10.1981

Mehmet Murat Öner 12.12.1980 01.02.1983

27.01.1981

Arap Yalgin 06.03.1981 01.05.1981

11.05.1981

On 26 February 1982 the military prosecutor filed a bill of

indictment in the Court-Martial against altogether 723 defendants

including the applicants.

Concerning the applicant Muhtat Karakoca, 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 further alleged that he had instigated a number

of violent acts such as the killing of F.S., burning down a car,

bombing a house and a shop. In addition it was alleged that he was

carrying an unlicensed weapon and a false identity card.

On 14 September 1981 the applicant was questioned by the Public

Prosecutor at the Ankara Court-Martial. He denied his statement made

to the police in which he confessed his illegal activities and alleged

that they were made under duress.

In due time, 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. The court rejected his

objection that his statement made to the police was made under duress.

It concluded that the applicant's illegal activities had been verified

and corroborated by the statements made by others who had also been

accused. The court further referred to the false identity card which

was obtained with the help of other members of the organisation who

used to work in the registry office and to the fact that he was

arrested in Izmir while he was campaigning on behalf of Dev-Yol. The

court held that this evidence strengthened the applicant's illegal

activities. The court sentenced him to seven years' 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 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 upheld the

first instance court's decision.

Concerning the applicant Mehmet Murat Öner, 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 further alleged that the applicant had prepared

false identity cards for the members of the organisation, had stolen

the seal of the company TEK, where he was employed in order to benefit

from buying and supplying the other members of the organisation with

clothes by way of preparing false promissory notes. It was also alleged

that he had registered a car under his name which was bought for the

organisation, and he had obtained funds for the organisation.

On 5 March 1981 the applicant, in his statement to the police,

confessed his illegal activities related to the organisation. However,

during his questioning by the Public Prosecutor and the court hearings

he denied his statements and alleged that they were made under duress.

In due time, 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. It held that although the

applicant had denied his statement made to the police, his activities

had been verified and corroborated by the statements made by others who

had also been accused. The court further referred to the false identity

cards, the stolen seal of the company, and the car which was registered

under the applicant's name although he did not have a driving licence.

Accordingly, the court held that this evidence strengthened the

applicant's illegal activities and sentenced him to five years and six

months' 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 the law promulgated in 1993 by Act No. 3953 of

27 December 1993, amending Act No. 1402, the case-file was transferred

to the Court of Cassation. On 27 December 1995 the Court of Cassation

held that 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 the Code of Criminal

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

Articles 102 para. 3 and 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..."

Concerning the applicant Arap Yalgin, 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 further alleged that he had participated in

some meetings, had acted as a look-out and had obtained funds for the

organisation. It was also alleged that following the applicant's

confession, two weapons and some explosives had been found and it had

been established that the weapons numbered as 658862-444855 were used

in some violent acts such as shooting with a gun at O.Y.'s house by the

applicant and the other accused M.Y.

On 5 April 1981 the applicant, in his statement to the police,

confessed his illegal activities related to the organisation. However,

during his questioning by the Public Prosecutor and the court hearings

he denied his statement and alleged that they were made under duress.

In due time, after martial law was lifted, the Ankara Court-

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

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

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

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

objection that his statement made to the police was made under duress.

It concluded that the applicant's illegal activities had been verified

and corroborated by the statements made by others who had also been

accused. The court further referred to the weapons and the explosives

which were found following the confessions of the applicant and the

others who had been also accused, and held that this evidence

strengthened the applicant's illegal activities. The court sentenced

him to six years and eight months' imprisonment, debarred him from

employment in the civil service and also placed him under judicial

guardianship during his detention. It took from 19 July 1989 to 1993

to draft the grounds of the judgment and following the applicant's

appeal the case was referred to the Military Court of Cassation.

Following the law promulgated by Act No. 3953 of

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 quashed the first instance court's decision on the

grounds that the court had failed to apply all the relevant legal

provisions to the crime in question. The Court of Cassation ruled that

there was no need for a retrial of the case. Accordingly, it revised

the file and finally sentenced the applicant to five years'

imprisonment.

COMPLAINTS

1. All the applicants complain under Article 5 para. 3 of the

Convention that their detention on remand was prolonged beyond a

reasonable time.

2. The applicants further complain that the criminal proceedings

brought against them were not concluded within a reasonable time as

required by Article 6 para. 1 of the Convention.

3. They also complain that they did not have a fair trial as the

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

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

Convention.

4. They complain that their case was not heard by an independent and

impartial tribunal, as required by Article 6 para. 1 of the Convention.

They explain that the Court-Martial was composed of five members: two

military judges, two civil judges and one army officer with no legal

training and fully accountable to the military commander of the state

of martial law.

5. They further complain that their 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.

6. The applicants Muhtat Karakoca and Mehmet Murat Öner lastly

complain under Article 6 para. 2 of the Convention that owing to its

excessive length their detention on remand could no longer be

considered as a provisional measure, but constituted an anticipatory

sentence.

THE LAW

1. All three applicants complain that their detention on remand

exceeded a reasonable time within the meaning of Article 5 para. 3

(Art. 5-3) of the Convention. In this context the Commission notes that

their detention on remand ended at various dates between 1981 and 1986.

Muhtat Karakoca and Mehmet Murat Öner also complain under

Article 6 para. 2 (Art. 6-2) of the Convention that owing to its

excessive length their detention on remand could no longer be

considered as a provisional measure, but constituted an anticipatory

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 above

complaints concern a period which is prior to 28 January 1987.

It follows that the these complaints 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).

2. All three applicants further bring several complaints under

Article 6 (Art. 6) of the Convention.

a) The applicants complain that the criminal proceedings brought

against them 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 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.

b) The applicants complain that they did not have a fair trial as

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

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

(Art. 6-1) of the Convention.

They also complain that their case was not heard by an

independent and impartial tribunal, as required by Article 6 para. 1

(Art. 6-1) of the Convention. They explain that the Court-Martial was

composed of five members: two military judges, two civil judges and one

army officer with no legal training and fully accountable to the

military commander of the state of martial law.

Concerning the applicants Arap Yalgin and Muhtat Karakoca, 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.

Concerning the applicant Mehmet Murat Öner, the Commission notes

that the charges against him were withdrawn on the ground of

prescription.

The Commission recalls that the withdrawal of the criminal

proceedings instituted against this applicant constitutes redress of

the violations which would have infringed his 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) partially

inadmissible on the same ground.

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

a violation in respect of this matter and this complaint must be

dismissed as manifestly ill-founded within the meaning of Article 27

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

c) The applicants complain that their 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, they explain that

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

Martial 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 this case, the

applicants were 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,

Eur. Court H.R., Reports 1996-II, No. 6).

The Commission considers that in these circumstances it must

reject this complaint 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 all the applicants'

complaints related to the length of criminal proceedings

instituted against them and the applicants Muhtat Karakoca's and

Arap Yalgin's complaints relating to their right to a fair trial

by an independent and impartial tribunal,

unanimously,

DECLARES THE REMAINDER OF THE COMPLAINTS INADMISSIBLE.

M.-T. SCHOEPFER G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber

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YALGIN, KARAKOCA AND ÖNER v. TURKEY

YALGIN, KARAKOCA AND ÖNER v. TURKEY

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