Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 31831/96 Application No. 33369/96

by Muharrem Özcan by Polat Can

against Turkey against Turkey

Application No. 33645/96 Application No. 34591/97

by Yüksel Polat by Sükrü Özçetin

against Turkey against Turkey

Application No. 34687/97

by Tugba Kiliç Kalkan

against Turkey

The European Commission of Human Rights sitting in private on

9 April 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

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 applications listed in the Appendix to this

decision ;

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 applicants listed in the annex are all Turkish citizens.

The facts of the cases as submitted by the applicants, may be

summarised as follows.

The applicants, accused of being members of the organisation Dev-

Yol (Revolutionary Way), were taken into police custody in Ankara at

various dates between October 1980 and April 1985 and they were

subsequently detained on remand upon decisions of the Ankara court-

martial. They were all released pending trial.

The details are as follows:

The applicant Periods of End of the

and No. of the police detention

application custody

31831/96

Muharrem Özcan 16.04.1985

29.04.1985 24.03.1986

33369/96

Polat Can 03.12.1980

27.01.1981 31.12.1983

33645/96

Yüksel Polat 12.10.1980

31.10.1980 19.01.1982

34591/97

Sükrü Özçetin 26.11.1981

24.12.1981 26.05.1986

34687/97

Tugba Kiliç Kalkan 4.11.1980

27.01.1981 3.11.1981

On 26 February 1982 the military prosecutor filed a bill of indictment

in the court-martial against altogether 723 defendants including the

present applicants.

It was alleged that the applicants had founded an organisation, in

which some of them also took a leading role, and whose aim was to

undermine the constitutional order and replace it with a Marxist-

Leninist regime; that they had advocated the need to set up resistance

committees against attacks by extreme right-wing militants, and that

they had instigated a number of violent acts. The prosecution called

for the applicants to be sentenced pursuant to Articles 146 of the

Turkish Criminal Code.

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 applicants

guilty of the offences as charged, and sentenced them to various terms

of imprisonment.

The case was automatically referred to the Supreme Military Court due

to the provision of Article 305 of Turkish Code of Criminal Procedure

which stipulates that there is an automatic appeal where the sentence

passed at first instance exceeds fifteen years' imprisonment.

Following the law promulgated on 27 December 1993, the case-file was

transferred to the Court of Cassation. On 27 December 1995 the Court

of Cassation held that regarding the applicants the prosecution was

time-barred in accordance with the principles of prescription. The

judgment concerning the applicants was based on the following reasons:

"...it has been decided to quash the decision of the first instance

court pursuant to Article 301 of Code of Criminal Procedure as it is

apparent that the lapse of time prescribed in Articles 102 para. 3, 104

para. 2 of the Turkish Criminal Code has expired, and there is no need

for retrial of this matter in accordance with Article 322 of the Code

of Criminal Procedure. Therefore it has been decided to terminate the

Public Prosecution against the above-mentioned defendants..."

COMPLAINTS

1. All applicants complain that the criminal proceedings brought

against them were not dealt with within a "reasonable time" as required

by Article 6 para. 1 of the Convention.

2. The applicant Muharrem Özcan also complains under Article 3 of

the Convention of the conditions of his detention in police custody.

3. The applicants Muharrem Özcan, Polat Can, Yüksel Polat and Sükrü

Özçetin complain under Article 5 para. 3 of the Convention that their

detention on remand was prolonged beyond a reasonable time.

4. The applicants Muharrem Özcan, Polat Can and Yüksel Polat

complain that they did not have a fair trial as the courts based their

reasoning on statements which they had made to the police under duress,

which is contrary to Article 6 para. 1 of the Convention.

5. The applicants Yüksel Polat and Polat Can also complain that

their case was not heard by an independent and impartial tribunal, as

required by Article 6 para. 1 of the Convention. They explain 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 of the state of martial law.

They also claim that their 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 try cases pending before them.

6. The applicants Polat Can and Yüksel Polat complain under

Article 6 para. 2 of the Convention that owing to its excessive length

their detention on remand could no longer be considered as a

provisional measure, but constituted an anticipatory sentence.

THE LAW

1. The applicant Özcan 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.

Certain applicants complain that their detention on remand

exceeded the reasonable time within the meaning of Article 5 para. 3

(Art. 5-3) of the Convention. In this context the Commission notes that

their detention on remand ended at various dates between 1980 and 1986.

Two of these applicants also complain under Article 6 para. 2

(Art. 6-2) of the Convention that owing to its excessive length their

detention on remand could no longer be considered as a provisional

measure, but constituted an anticipatory sentence.

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 applicants' complaints in this respect must

be rejected as falling outside the competence ratione temporis of the

Commission and therefore incompatible with the provisions of the

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

2. Certain applicants complain under Article 6 para. 1 (Art. 6-1)

of the Convention that they did not have a fair trial as their

statements made to the police under duress constituted the grounds of

the court's decisions.

Certain applicants complain that their case was not heard by an

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

(Art. 6-1) of the Convention. They explain 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

commander of he state of martial law. Some of them also complain under

the same Article that their case was not heard by a tribunal

established by law.

However the Commission notes that the charges against the

applicants were withdrawn on the ground of prescription.

The Commission recalls that the withdrawal of the criminal

proceedings instituted against the applicants constitutes redress of

the violations which would have infringed their rights under the

Convention (No. 5575/72, Dec. 8.7.74, D.R. 1, p. 44). It also recalls

that on 24 October 1995 the Commission declared the applications

Cankoçak against Turkey (Nos. 25182/94 and 26956/95) partially

inadmissible on the same ground.

Accordingly, the applicants can no longer claim to be victims of

a violation in respect of these matters and these complaints must be

dismissed as manifestly ill-founded within the meaning of Article 27

para. 2 (Art. 27-2) of the Convention.

3. All applicants complain that the criminal proceedings brought

against them were not dealt with within a "reasonable time" as required

by 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 these complaints to the

respondent Government.

For these reasons, the Commission,

DECIDES TO JOIN THE APPLICATIONS;

DECIDES TO ADJOURN the examination of the applicants' complaint

related to the length of the criminal proceedings instituted

against them;

unanimously,

DECLARES THE REMAINDER OF THE APPLICATIONS INADMISSIBLE.

M.-T. SCHOEPFER G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber

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ÖZCAN, CAN, POLAT, ÖZÇETIN AND KALKAN v. TURKEY

ÖZCAN, CAN, POLAT, ÖZÇETIN AND KALKAN v. TURKEY

LEXI