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AS TO THE ADMISSIBILITY OF

Application No. 24273/94

by TÖB-DER

against Turkey

The European Commission of Human Rights (Second Chamber) sitting

in private on 21 May 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 7 March 1994 by

TÖB-DER against Turkey and registered on 6 June 1994 under file

No. 24273/94;

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 private association under Turkish law, had its

seat in Ankara. It is represented before the Commission by ilhan Disçi

and Akay Sayilir, both lawyers practising in Ankara.

The facts of the present case, as submitted by the applicant, may

be summarised as follows.

The applicant association was composed of teachers. The aim of

the association was to promote the solidarity of teachers nation-wide.

On 25 December 1981 the 3rd Court Martial in Ankara convicted the

applicant association's members and a number of executive staff under

Articles 141 and 142 of the Turkish Criminal Code of founding an

association whose aim was domination by a particular social class. That

decision concerned only the members and the staff who were present

during the trial. The court also ordered the dissolution of the

association and decided to transfer all its property pursuant to the

provisions of Article 64 of the Associations Code. This decision was

upheld by the Military Court of Cassation on 31 March 1983.

The members and the staff who were absent during the above-

mentioned trial were acquitted by the Ankara Court of Assize on 15

March 1989, on the ground that there was insufficient evidence.

After the amendments made to the Turkish Criminal Code by the

Anti-Terror Law No. 3713 of 12 April 1991, the applicant association's

members requested on 22 November 1991 recognition of the association's

legal personality before the 4th Court Martial in Ankara on the ground

that Articles 141 and 142, on the basis of which they had been

convicted, were no longer in force. The applicant association's

directors based their request on Article 2 of the Turkish Criminal Code

which stipulates that nobody can be punished for an act or omission

which, although it was a crime when it was committed, is no longer a

crime under the subsequent law.

On 28 November 1991 the 4th Court Martial in Ankara rejected the

request filed by the applicant association's members. It held that

Article 2 of the Turkish Criminal Code was not applicable to the

present case as the applicant association's dissolution was a

disciplinary sanction pursuant to the provisions of Article 64 of the

Associations Code and since Article 2 of the Turkish Criminal Code was

applicable only to the crimes dealt with in the Turkish Criminal Code.

The applicant association's members appealed. On 5 May 1992 the

Supreme Military Court dismissed their request on the ground that, as

the association was dissolved and had no legal personality, the legal

representatives' power of attorney was invalid and they could not bring

any application on behalf of the association.

Following this decision, the applicant association's members

requested a written order from the Ministry of Defence in order to

bring an appeal before the Military Court of Cassation. On 29 June 1993

the Ministry rejected this request.

The applicant association's members also requested the Public

Prosecutor of the Military Court of Cassation to apply for

rectification of the decision as he is the only authority who can bring

such a request if he considers it appropriate. On 10 September 1993 the

Public Prosecutor of the Supreme Military Court rejected this

applicant's request.

COMPLAINTS

1. The applicant association complains firstly that the Ankara

Martial Court which ordered its dissolution was not an independent and

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

On the basis of the same fact the applicant also alleges that this kind

of courts cannot guarantee a fair trial to persons subject to their

jurisdiction.

2. The applicant association also complains that following the

amendments to the Turkish Criminal Code, the decisions of the Court

Martial in Ankara and the Military Court of Cassation denying

recognition of the association's legal personality were unlawful and

incompatible with the exercise of the freedom of association and

infringed its rights set forth in Article 11 of the Convention.

3. The applicant association complains lastly under Article 1 of

Protocol No. 1 to the Convention that the association has been

unlawfully deprived of its property, as a result of a judicial decision

in which it was declared to be an association whose aim was domination

by a particular social class, whereupon the court ordered the

dissolution of the association and all its property was transferred to

the Treasury.

THE LAW

1. The applicant association complains firstly that the Ankara

Martial Court which refused to recognise its legal personality were not

independent and impartial tribunals, as required by Article 6 para. 1

(Art. 6-1) of the Convention. On the basis of the same fact the

applicant also alleges that this kind of courts cannot guarantee a fair

trial to persons subject to their jurisdiction.

The applicant also complains that the decisions of the domestic

courts which refused to recognise the association's legal personality

are incompatible with the exercise of the freedom of association and

that they infringed its rights set forth in Article 11 (Art. 11) of the

Convention.

As far as the above-mentioned complaints are concerned, the

Commission is not required to decide whether or not the facts alleged

by the applicant disclose any appearance of a violation of this

provision, as Article 26 (Art. 26) of the Convention provides that the

Commission "may only deal with the matter...within a period of six

months from the date on which the final decision was taken". According

to the Commission's established jurisprudence, the "final decision"

within the meaning of Article 26 (Art. 26) refers solely to the final

decision involved in the exhaustion of all domestic remedies according

to the generally recognised rules of international law. In particular,

for a remedy to be effective, it must be accessible, i.e. the person

concerned must be able to institute the relevant proceedings himself

(cf., e.g., No. 12604/86, Dec. 10.7.91, D.R. 70, p. 125).

The Commission finds that, in the present case, the applicant's

request for a written order from the Ministry of Defence to bring an

appeal before the Military Court of Cassation and his application to

the Military Court of Cassation for rectification of a decision were

not directly accessible remedies under domestic law. In reaching this

conclusion the Commission took into account the fact that in order to

be able to use these remedies, the Ministry of Defence and the Public

Prosecutor attached to the Military Court of Cassation would have to

take the initiative of issuing a formal order to the relevant courts.

The Commission accordingly takes the view that these remedies were not

directly accessible, since the applicant was not in a position to set

the appeal procedure in motion himself (No. 14545/89, Dec. 9.10.90,

D.R. 66, p. 245).

Consequently the Ministry of Defence's decision to refuse the

request for a written order on 29 June 1993 and the Military Court of

Cassation's decision to refuse the rectification of a decision request

on 10 September 1993 cannot be taken into consideration in determining

the date of the final decision for the purpose of applying the six-

month time-limit laid down in Article 26 (Art. 26). The final decision

is the decision of the Military Court of Cassation, refusing the

appeal, which was given on 5 May 1992. However the present application

was submitted to the Commission on 7 March 1994, that is more than six

months after the date of this decision. Furthermore, an examination of

the case does not disclose the existence of any special circumstances

which might have interrupted or suspended the running of that period.

It follows that the application has been introduced out of time

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

Convention.

2. The applicant lastly complains that the transfer of the

association's property to the Treasury, infringed its rights under

Article 1 of Protocol No. 1 (P1-1) to the Convention.

In so far as the applicant association complains under Article

1 of Protocol No. 1 (P1-1) to the Convention that it was unlawfully

deprived of its property on 31 March 1983, the Commission recalls that

the declaration made 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 in the present case that the complaints

under Article 1 of Protocol No. 1 (P1-1) concern the dissolution of the

association by a court order and the transfer of its property to the

Treasury on 31 March 1983. The Commission observes that the facts

alleged relate to a period prior to 28 January 1987.

It follows that the applicant's complaint under Article 1 of

Protocol No. 1 (P1-1) to the Convention falls outside the competence

ratione temporis of the Commission and therefore must be rejected as

incompatible with the provisions of the Convention within the meaning

of Article 27 para. 2 (Art. 27-2).

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.-T. SCHOEPFER G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber

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TÖB-DER v. TURKEY

TÖB-DER v. TURKEY

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