Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 29286/95

by Mehmet Ali YILMAZ

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 16 August 1995 by

Mehmet Ali Yilmaz against Turkey and registered on 16 November 1995

under file No. 29286/95;

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 1953, resides in Ankara.

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

22 November 1981 and was subsequently detained on remand following a

decision of the Ankara Court-Martial on 20 February 1982. 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 had founded an organisation,

in which he also took a leading role, whose aim was to undermine the

constitutional order and replace it with a Marxist-Leninist regime. It

was also alleged that he had participated in the publication of the

"Dev-yol" magazine; that he had organised activities to finance the

organisation with the aim of providing guns to it; that he had

advocated the need to set up resistance committees against attacks by

extreme right-wing militants and finally that he had organised

meetings. The prosecution called for the applicant to be sentenced

pursuant to Article 146 of the Turkish Criminal Code.

On 20 February 1981 the applicant was questioned by the judge of

the Court-Martial. In his questioning he denied his statement made to

the police and alleged that it 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. It held that although the

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

were also corroborated by statements of other accused. The court

further referred to the expert reports and fraudulent identity cards

which confirmed the applicant's illegal activities. It held that the

accused had made university students aware of Dev-Yol, had trained them

and organised the youth and obtained funds and weapons for the

organisation with the aim of undermining the constitutional order by

force. The court sentenced him to life imprisonment, debarred him from

employment in the civil service and placed him under judicial

guardianship during his detention.

The case was automatically referred to the Military Court of

Cassation under the provision of Article 305 of the Turkish Code of

Criminal Procedure which stipulates that there is an automatic appeal

where the sentence passed at first instance exceeds fifteen years'

imprisonment.

Pursuant to a law promulgated on 27 December 1993, the case-file

was 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. 3 of the Convention

that his detention on remand was prolonged beyond a reasonable time.

3. 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.

4. The applicant 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.

5. 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.

6. He lastly 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.

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 20 February 1982.

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 his detention on remand exceeded a

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

the Convention.

The applicant further complains under Article 5 para. 4

(Art. 5-4) 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 (Art. 5-5) 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 at first

instance, whereas the application was submitted to the Commission on

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

situation complained of.

It follows that the applicant's above 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.

He lastly 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 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 them 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 court,

unanimously,

DECLARES THE REMAINDER OF THE APPLICATION INADMISSIBLE.

M.-T. SCHOEPFER G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber

Menu

YILMAZ v. TURKEY

YILMAZ v. TURKEY

LEXI