Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 33363/96

by Fikret DOGAN

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 27 June 1996 by

Fikret Dogan against Turkey and registered on 4 October 1996 under file

No. 33363/96;

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 1962, resides in Ankara.

He is represented before the Commission by Canan Aydin, 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

28 November 1980 and was subsequently detained on remand following a

decision of the Ankara Court-Martial on 9 January 1981. He was released

in 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. In addition it was alleged

that he had instigated a number of violent acts such as the killing of

C.M. and C.D., opening fire on H.C., G.A. and N.A. and bombing a

house. It was also alleged that following his confession the police

found a huge amount of explosives and many weapons which were used

during the above-mentioned acts. The prosecution called for the

applicant to be sentenced pursuant to Article 146 of the Turkish

Criminal Code.

On 25 December 1982 the applicant in his statement made to the

police confessed his illegal activities related to the organisation.

The applicant was also questioned by the Public Prosecutor in the

Ankara Court-Martial. He confirmed his membership of Dev-Yol, but he

denied vehemently the illegal activities of which he had been accused.

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 other accused. The court

further referred to the weapons and the explosives which were found in

his flat. It concluded that this evidence confirmed the applicant's

illegal activities and sentenced him to life imprisonment, debarred

him from employment in the civil service and also 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 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.

3. 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.

4. He 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.

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.

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 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 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.

He further 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 courts'

decisions.

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,

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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DOGAN v. TURKEY

DOGAN v. TURKEY

LEXI