SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 39678/98 by LeÅŸker ACAR against Turkey

The European Court of Human Rights (Second Section), sitting on 2 December 2003 as a Chamber composed of:

Mr J.-P. Costa , President , Mr A.B. Baka , Mr Gaukur Jörundsson , Mr L. Loucaides , Mr R. Türmen , Mr C. Bîrsan , Mr M. Ugrekhelidze , judges , and Mr T. L. Early , Deputy Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 9 January 1998,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

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, Leşker Acar , is a Turkish national who was born in 1966 and lives in Silopi . He is represented before the Court by Mustafa Özer , a lawyer practising in Diyarbakır .

A. The circumstances of the case

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

On 28 April 1992 the applicant was taken into police custody on account of his alleged involvement in the terrorist activities of the PKK.

On 25 May 1992 the applicant was brought before the Diyarbakır Public Prosecutor where he denied the allegations against him. On the same day, a judge at the Şırnak Magistrates’ Court ordered his detention on remand.

On 1 September 1992 the public prosecutor submitted his indictment charging the applicant with treason under Article 125 of the Criminal Code. Thirty-four other persons, who were also charged with PKK-related offences under various articles of the Criminal Code and the Prevention of Terrorism Act, were subsequently included in the indictment and tried before the same court.

In the course of the proceedings, the court appointed experts who examined the authenticity of signatures which had been challenged by the applicant. Furthermore, the court requested a ballistics examination of the weapons found in the applicant’s possession.

The Diyarbakır State Security Court held hearings approximately every one to two months, i.e. more than 6 times a year. The first hearing was held on 16 October 1992.

On 12 October 1994 the public prosecutor issued a new indictment, charging the applicant under the same Article of the Criminal Code with involvement in other terrorist activities. The applicant failed to appear at the three subsequent hearings, which caused a delay of four months in the taking of his statements.

At the 46th hearing, which was held on 13 May 1998, the newly appointed public prosecutor requested the court to give him additional time to examine the eleven-volume case file. He also noted that the latest written opinion of the former public prosecutor had been submitted more than two years ago and that it required to be reviewed.

On 28 May 1995, upon the request of the public prosecutor, the applicant’s case was joined to another case which was being considered in a different chamber of the Diyarbakır State Security Court. Thus, the number of accused persons increased from thirty-five to forty-nine.

At the 48th hearing held on 1 July 1998, the Diyarbakır State Security Court noted that the applicant was not present and that the prison administration had not responded to the request that he appear at the hearing.

At the 49th hearing held on 3 July 1998 the Diyarbakır State Security Court convicted the applicant under Article 125 of the Criminal Code of treason and sentenced him to life imprisonment.

The applicant’s sentence was automatically referred to the Court of Cassation for appeal. The applicant’s request for a hearing on his appeal was granted. On 27 October 1999 the Court of Cassation upheld the judgment of the Diyarbakır State Security Court in respect of the applicant.

COMPLAINTS

The applicant complains that the criminal proceedings brought against him, which lasted 7 years 5 months and 29 days, were not concluded within a reasonable time as required by Article 6 § 1 of the Convention.

He also complains under the same Article of the Convention that the Diyarbakır State Security Court, which tried and convicted him, was not an independent and impartial tribunal, on account of the presence of a military judge on the bench of the court.

THE LAW

1. The applicant complains under Article 6 § 1 of the Convention that the criminal proceedings, which lasted 7 years 5 months and 29 days, were unreasonably long, in breach of Article 6 § 1 of the Convention, which provides, in so far as relevant:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing within a reasonable time by an independent and impartial tribunal established by law.”

The Government submit that the length of the criminal proceedings was not unreasonably long, having regard to the number of accused persons in the case. They highlight the complexity of the case and the nature of the offence with which the applicant was charged. They state that the need to request information from relevant authorities, in order to prove the veracity of the applicant’s statements, also lengthened the proceedings.

The Government further point out that the applicant failed to appear at four hearings, a factor which delayed the proceedings.

The applicant reiterates his view that the proceedings were unreasonably long. He contends that the change to the composition of the Diyarbakır State Security Court and the replacement of the public prosecutors by newly-appointed prosecutors caused the proceedings to be delayed.

The Court notes that the period to be taken into consideration began on 28 April 1992, when the applicant was taken into police custody, and ended on 27 October 1999, when the Court of Cassation upheld the judgment of the Diyarbakır State Security Court. The proceedings thus lasted approximately seven years and six months.

The Court notes that the reasonableness of the length of proceedings must be assessed in the light of the particular circumstances of the case and having regard to the criteria laid down in the established case-law, in particular the complexity of the case and the conduct of the applicant and of the relevant authorities (see Yağcı and Sargın v. Turkey , judgment of 8 June 1995, Series A no. 319, p. 20, § 59). Furthermore, the Court may, as appropriate, make an overall assessment of the length of the proceedings (see Cifola v. Italy, judgment of 27 February 1992, Series A no. 231, p. 9, § 14).

Taking into account the number of accused in the case, the seriousness and complexity of the charges involved and the number of hearings which took place before both the first instance and the appeal court, the Court finds that the total period of seven years and six months was not unreasonably long. Moreover, the applicant has not shown any substantial periods of inactivity attributable to the judicial authorities.

It notes also that Article 6 of the Convention requires that judicial proceedings be conducted expeditiously, but it also lays down the more general principle of the proper administration of justice (see Boddaert v. Belgium , judgment of 12 October 1992, Series A no. 235-D, § 39). It considers that, in the circumstances of the case, the conduct of the proceedings was consistent with the fair balance which has to be struck between the various aspects of this fundamental requirement.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4 of the Convention.

2. The applicant complains under Article 6 § 1 of the Convention that his right to a fair hearing was breached on account of the presence of a military judge on the bench of the Diyarbakır State Security Court which tried and convicted him.

The Government contend that the rules governing the appointment of military judges to the State Security Courts and the guarantees which they enjoy in the performance of their judicial functions on the bench are such as to ensure that these courts fully comply with the requirements of independence and impartiality within the meaning of Article 6 § 1. Moreover, they note that the relevant provision of the Constitution on the establishment of the State Security Courts have been amended and participation of military judges in these courts has been abolished.

The Court considers, in the light of the parties’ submissions that this complaint raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits. It concludes, therefore, that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant’s complaint concerning the independence and impartiality of the Diyarbakır State Security Court;

Declares the remainder of the application inadmissible.

T. L. E arly J.-P. Costa Deputy Registrar President