FOURTH SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 47116/99 by Şemsettin GÜMÜŞTEN against Turkey

The European Court of Human Rights (Fourth Section), sitting on 10 February 2004 as a Chamber composed of:

Sir Nicolas Bratza , President , Mr M. Pellonpää , Mr R. Türmen , Mrs V. Strážnická , Mr R. Maruste , Mr S. Pavlovschi , Mr L. Garlicki , judges , and Mrs F . Elens-Passos , Deputy Section Registrar ,

Having regard to the above application lodged on 19 November 1998,

Having regard to the Court’s partial decision of 3 June 2003,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Şemsettin Gümüşten , is a Turkish national, who was born in 1952 and lives in Mardin . He is represented before the Court by Mr Ömer Öneren , a lawyer practising in Ankara.

The facts of the case, as submitted by the parties, may be summarised as follows.

On 22 December 1980 the applicant was arrested and taken into police custody on suspicion of membership of an illegal organisation, namely the PKK .

On 10 March 1981 the Diyarbakır Martial Law Court ordered the applicant’s detention on remand.

On 14 September 1981 the public prosecutors’ office at the Diyarbakır Martial Law Court filed a bill of indictment with the latter, accusing the applicant of membership of an illegal organisation. The public prosecutors’ office requested that the applicant be charged and convicted under Article 168 § 1 of the Turkish Criminal Code.

On 19 February 1985 the Diyarbakır Martial Law Court convicted the applicant of the charge against him and sentenced him to twenty-four years’ imprisonment, pursuant to Article 168 § 1 of the Turkish Criminal Code.

Following the applicant’s appeal, his case was referred to the Military Court of Cassation.

On 10 April 1990 the Military Court of Cassation quashed the judgment of the Diyarbakır Martial Law Court on the ground that latter had misinterpreted the domestic law in respect of the offence in question.

On 29 July 1990 the applicant was released from detention.

Subsequent to promulgation of Law no. 3953 on 27 December 1993, which abolished the jurisdiction of the Martial Law Courts, the Diyarbakır Assize Court acquired jurisdiction over the applicant’s case.

On 13 July 1998 the Diyarbakır Assize Court ordered that the criminal proceedings against the applicant be terminated on the ground that the statutory time-limit under Articles 102 and 104 of the Turkish Criminal Code had expired.

On 10 September 1998 the judgment became final in respect of the applicant.

THE LAW

The applicant’s complaint relates to the length of the proceedings, which began on 22 December 1980 when he was arrested and taken into custody and ended on 18 September 1998 when the judgment of the Assize Court became final. They therefore lasted seventeen years, eight months and twenty-seven days.

The Government point out that Turkey has accepted the competence of the Court to examine individual petitions only in respect of facts or events that have occurred since 22 January 1990. On that account, they contend that, the Court can consider only the period which elapsed between 22 January 1990 and 18 September 1998, the date on which the judgment became final.

The Court reiterates that it has already held that its competence ratione temporis began on 28 January 1987, the date on which Turkey’s declaration accepting the right of individual petition came into force (see Cankoçak v. Turkey (Sect 1.), nos. 25182/94 and 2956/95, judgment of 20 February 2001, § 26). Accordingly, the Court considers that the Government’s objection cannot be upheld.

As regards the merits of the complaint, the Government submit that the length of the criminal proceedings brought against the applicants could not be considered unreasonably long, given the difficulties involved in the examination of thousands of files. The Government further highlight the complexity of the case and the nature of the offences with which the applicant was charged. They maintain that the courts had to deal with a trial involving 624 defendants, including the applicant, whose activities and connections with other defendants had to be established. The Diyarbakır Martial Law Court’s judgment of 19 February 1985 consisted of 1,977 pages and that there were 90 prosecution files in the archives belonging to this case.

The Government contend that when the judgment was quashed in respect of the applicant’s sentence, the proceedings started once again in respect of 188 suspects, including the applicant, before the Diyarbakır Assize Court. The latter had to establish the whereabouts of the suspects in order to take their testimonies as well as the testimonies of the witnesses. The Government further point out that the applicant has not shown any substantial periods of inactivity attributable to the judicial authorities.

The Government claim that these circumstances explained the length of the proceedings and that no negligence or delay was imputable to the judicial authorities.

According to the applicant, the complexity of the case and the large number of defendants cannot justify the length of the proceedings, which lasted more than seventeen years. He further submits that he was not tried with 188 other suspects before the Diyarbakır Assize Court as alleged by the Government.

The Court considers, in the light of the criteria established in its case-law on the question of “reasonable time” (the complexity of the case, the applicant’s conduct and that of the competent authorities), and having regard to all the information in its possession, that an examination of the merits of this complaint is required.

For these reasons, the Court unanimously

Declares the remainder of the application admissible, without prejudging the merits of the case.

Françoise Elens-Passos Nicolas Bratza Deputy Registrar President