Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 33368/96

by Alper Tunga Levent YAKIS

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 17 June 1996 by

Alper Tunga Levent Yakis against Turkey and registered on 4 October

1996 under file No. 33368/96;

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.

He is represented before the Commission by Nurten Caglar, 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

26 November 1980 and was subsequently detained on remand upon a

decision of the Ankara Court-Martial on 26 February 1982. He was

released on 22 June 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 the

applicant had been trained for shooting in order to organise robberies

with the aim of obtaining money for the organisation. Following his

training the applicant had organised many robberies during which he had

instigated many violent acts such as killing S.A. and N.A., wounding

H.A., bombing the house of the American ambassador and acting as an

armed look-out. The prosecution called for the applicant to be

sentenced pursuant to Article 146 of the Turkish Criminal Code.

On 26 December 1980 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 he denied his

statement and alleged that it had been made under duress. During the

court hearings he confirmed that he had shared the opinions of the

publication called Dev-Yol and had expressed his willingness to take

part in the struggle against fascism 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. The court rejected the

applicant's objection that his statement made to the police was made

under duress. It concluded that the applicant's activities had been

corroborated by the statements of other accused. The court further held

that the applicant had been arrested in a house used by the

organisation. There was therefore no doubt or hesitation about his

relationship with the organisation and his illegal activities. The

court 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 due to 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 5 para. 3 of the Convention

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

2. The applicant further complains that the criminal proceedings

brought against him were not dealt with 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.

5. He further complains that his 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,

Courts-Martial continued to deal with cases pending before them.

6. He lastly 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.

THE LAW

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

a reasonable time and that he was denied release pending trial within

the meaning of Article 5 para. 3 (Art. 5-3) of the Convention. He also

complains that because of its excessive length his detention on remand

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

17 June 1996, 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.

2. The applicant further complains that his 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 he explains that although

martial law was lifted in Ankara on 19 July 1985, Courts-Martial

continued to deal with cases pending before them.

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 applicant

was prosecuted and convicted on the basis of legal provisions

enpowering 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

applicant, 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 Muftuoglu v. Turkey, Comm. Report 8 December 1994, para. 86,

to be published in Reports of Judgments and Decisions, 1996).

Consequently, this part of the application must be dismissed as

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 dealt with within a "reasonable time" as required

by Article 6 para. 1 (Art. 6-1) of the Convention.

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 (Art. 6-1) of the

Convention.

The applicant further 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 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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YAKIS v. TURKEY

YAKIS v. TURKEY

LEXI