Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 29279/95

by ismail SAHINER

against Turkey

The European Commission of Human Rights (Second Chamber) sitting

in private on 2 July 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 25 August 1995 by

ismail Sahiner against Turkey and registered on 16 November 1995 under

file No. 29279/95;

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, a Turkish citizen born in 1957, resides in Ankara.

He is represented before the Commission by Ali Kalan, 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

29 November 1980 and was subsequently detained on remand following a

decision of the Ankara Court-Martial on 26 January 1981. He was

released on 23 July 1991.

On 26 February 1982 the military prosecutor filed a bill of

indictment in the Court-Martial against altogether 723 defendants

including the present 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. It was also alleged that

he had instigated a number of violent acts such as killing of A.O. and

M.B., bombing a coffee house, acting as an armed look-out and opening

fire on a house. In addition it was alleged that the weapons

registered as C 22243 Browning and hh 1894 Tokagypt belonging to the

applicant, had been used during those violent acts. The prosecution

called for the applicant to be sentenced pursuant to Article 146 of the

Turkish Criminal Code.

On 14 October 1981 the applicant in his statement made to the

police confessed his illegal activities related to the organisation.

However, during his questioning by the Public Prosecutor and at the

court hearings, the applicant denied his statements 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. It continued to

deal with this case even after lifting of martial law, 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 of other accused.

The court further referred to the weapons which had been found

following the applicant's confession and the expert reports, which

confirmed the applicant's illegal activities. 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 a law promulgated on 27 December 1993, the case-file

was eventually transferred to the Court of Cassation. On 27 December

1995 the Court of Cassation upheld the first instance court's

decision.

COMPLAINTS

1. The applicant complains under Article 3 of the Convention of the

conditions of his detention in police custody.

2. The applicant complains under Article 5 para. 4 of the Convention

that Turkish law does not afford any effective remedy by which the

lawfulness of his police custody could be decided speedily by a court.

On the basis of the same facts he also complains that he was deprived

of his right to compensation under Article 5 para. 5 of the Convention.

3. 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.

4. He also complains that his case was not heard by an independent

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

Convention. He explains 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. 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.

6. He also complains under Article 6 para. 2 of the Convention that

owing to its excessive length his detention on remand could no longer

be considered as a provisional measure, but constituted an anticipatory

sentence.

7. The applicant lastly complains under Articles 9 and 10 of the

Convention that the investigations carried out were the direct

consequence of conflicting views of the applicant and the Turkish

authorities on the current political system.

THE LAW

1. The applicant complains under Article 3 (Art. 3) of the

Convention about the conditions of his police custody. He alleges that

during his interrogation by the police he was subjected to various

forms of ill-treatment, without giving any details of the alleged ill-

treatment. In this context the Commission notes that his police custody

ended on 26 January 1981.

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

complaint under Article 3 (Art. 3) 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).

2. The applicant complains that the length of his detention exceeded

a reasonable time within the meaning of Article 5 para. 3 (Art. 5-3)

of the Convention. He also complains that because of its excessive

length it could not be considered as a provisional measure, but

constituted an anticipatory sentence, infringing the presumption of

innocence under Article 6 para. 2 (Art. 6-2) of the Convention.

The Commission recalls that according to Article 26 (Art. 26) of

the Convention, it may only deal with applications introduced within

a period of six months after the final decision or, where there are no

domestic remedies available, after the end of the situation complained

of.

In this respect the Commission observes that the applicant's

detention within the meaning of Article 5 para. 1(c) and 3

(Art. 5-1-c, 5-3) ended on 19 July 1989 when he was convicted in first

instance, whereas the application was submitted to the Commission on

25 August 1995, that is more than six months after the end of the

situation complained of.

It follows that these complaints have been introduced out of time

and must be rejected under Article 27 para. 3 (Art. 27-3) of the

Convention.

3. The applicant 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 that his case was not heard by an independent

and impartial tribunal, as required by Article 6 para. 1 (Art. 6-1) of

the Convention. He explains 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.

The applicant further 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

(Art. 6-1) of the Convention.

The applicant lastly complains under Articles 9 and 10

(Art. 9, 10) of the Convention that the investigations carried out were

the direct consequence of conflicting views of the applicant and the

Turkish authorities on the current political system.

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, his complaint concerning the independence

and impartiality of the court, and his complaint that his

conviction unjustifiedly interfered with his freedoms of thought

and expression,

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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SAHINER v. TURKEY

SAHINER v. TURKEY

LEXI