Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 32962/96

by Halil KIZILÖZ

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 June 1996 by

Halil Kizilöz against Turkey and registered on 13 September 1996 under

file No. 32962/96;

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 1957, resides 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

1 December 1980 and was subsequently detained on remand upon decision

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

24 April 1985 pending trial.

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. In addition it was alleged

that the applicant, being an officer in the Ministry of Education, had

made his colleagues aware about Dev-Yol, had organised and trained

them, had obtained funds for the organisation, had bought two cars for

the organisation, had established various kinds of offices such as an

insurance agency, book shops, accounting offices in order to make some

money for the organisation, had provided flats for the members of the

organisation, had also provided false idendity cars for the members of

the organisation and had stolen State authorities' seals. The

prosecution called for the applicant to be sentenced pursuant to

Article 168 of the Turkish Criminal Code.

On 8 January 1980 the applicant in his statement made to the

police confessed his illegal activities related to the organisation.

On 23 March 1981 the applicant was also questioned by the Public

Prosecutor in the Ankara Court-Martial. He confirmed his statement made

to the police, but he denied vehemently his membership of Dev-Yol.

Then, during the court hearings he totally denied his previous

statements.

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

had been corroborated by the statements of the other accused. The court

further referred to the false idendity cards, stolen seals and the

unlicenced weapons together with explosives which had been found in his

flat. The court concluded that this evidence confirmed the applicant's

illegal activities and sentenced him to thirteen years and four 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 a law promulgated on 27 December 1993, the case-file

was transferred to the non-military criminal court, Court of Cassation,

by Act 3953. On 27 December 1995 the Court of Cassation quashed the

first instance court's decision on the ground that the court had failed

to apply all the legal provisions relevant to the crime in question.

The Court of Cassation ruled that there was no need for retrial of the

case. Accordingly, it revised the judgment and finally sentenced the

applicant to ten years' imprisonment.

COMPLAINTS

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

conditions of his detention in police custody.

2. Under Article 5 of the Convention, the applicant alleges

violations of:

- para. 2 in that he was not informed promptly of the reasons

for his arrest or of any charge against him;

- para. 3 in that his detention on remand was prolonged beyond

a reasonable time.

- para. 5 in that he has been deprived of his right to

compensation

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 of the Convention.

4. The applicant 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. He 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.

6. The applicant also complains under Article 6 para. 3 of the

Convention that he was not informed promptly of the nature and cause

of the accusation against him, that he did not have adequate time for

the preparation of his defence and that it was impossible for him to

examine witnesses against him.

7. He also complains under Article 7 para. 1 of the Convention that

his conviction was based on legal principles which had not existed at

the time of the commission of the offence.

8. He lastly complains under Articles 10 and 11 of the Convention

that the investigations carried out were the direct consequence of

conflicting views between 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.

Under Article 5 (Art. 5) of the Convention, he also alleges

violations of:

- para. 2 in that he was not informed promptly of the reasons

for his arrest or of any charge against him;

- para. 3 in that his detention on remand was prolonged beyond

a reasonable time.

- para. 5 in that he has been deprived of his right to

compensation.

He also complains under Article 6 para. 2 (Art. 6-2) 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. In this context the Commission notes that his

detention on remand ended on 24 April 1985.

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 applicant's complaints 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 under Article 7 para. 1 (Art. 7-1) of the

Convention that his conviction was based on legal principles which had

not existed at the time of the commission of the offence.

The Commission recalls that under Article 19 (Art. 19) of the

Convention its sole task is to ensure observance of the engagements

undertaken by the High Contracting Parties in the Convention. It is not

competent to examine applications concerning errors of law or fact

allegedly committed by the competent national authorities, to whom it

falls, in the first place, to interpret and apply domestic law (No.

19890/92, Dec. 3.5.93, D.R. 74 p. 239).

In this case, the Commission notes that the applicant's

complaints concern the national courts' evaluation of the facts and

evidence and the interpretation of the domestic law. The courts held

that the provisions of the Turkish Criminal Code were applicable to the

applicant's offence. The Commission finds no element which would allow

it to conclude that the courts established the facts in an arbitrary

or unreasonable manner or that they misinterpreted the applicable

provisions of the criminal law. Therefore, there is no appearance of

the applicant's conviction not being in conformity with Article 7

(Art. 7) of the Convention.

It follows that this part of the application is manifestly ill-

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

The applicant 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 also complains under Article 6 para. 3 (Art. 6-3)

of the Convention that he was not informed promptly of the nature and

cause of the accusation against him, that he did not have adequate time

for preparation of his defence and that it was impossible for him to

examine witnesses against him.

He lastly complains under Articles 10 and 11 (Art. 10, 11) 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 and 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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KIZILÖZ v. TURKEY

KIZILÖZ v. TURKEY

LEXI