SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 35070/97 by AyÅŸe TEZCAN UZUNHASANOÄžLU against Turkey

The European Court of Human Rights (Second Section), sitting on 20 May 2003 as a Chamber composed of

Mr J.-P. Costa , President , Mr A.B. Baka , Mr L. Loucaides , Mr R. Türmen , Mr C. Bîrsan , Mr M. Ugrekhelidze , Mrs A. Mularoni , judges , and Mrs S. Dollé , Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 23 January 1997,

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, Ayşe Tezcan Uzunhasanoğlu, is a Turkish national, who was born in 1963 and lives in Istanbul. She is represented before the Court by Mr Kamil Tekin Sürek, a lawyer practising in Istanbul.

A. The circumstances of the case

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

On 30 May 1992 the applicant was taken into custody on suspicion of assisting and giving shelter to an illegal terrorist organisation, namely the Devrimci -Sol ( Revolutionary-Left ).

On 3 June 1992 the Public Prosecutor at the Istanbul State Security Court filed an indictment with the court charging the applicant under Article 169 of the Criminal Code and Articles 4 and 5 of the Prevention of Terrorism Act for providing shelter and assisting members of an illegal armed organisation.

On 7 September 1993 the Istanbul State Security Court acquitted the applicant for lack of evidence.

On 23 December 1993 the Court of Cassation quashed the judgment of the Istanbul State Security Court. The court noted that the applicant had been in charge of communications among members of the Devrimci -Sol and that she had allowed them to organise their meetings in her house. It held that, despite the applicant’s confessions and the statements given by witnesses against her at the police station, the first instance court had failed to consider that the applicant had assisted and given shelter to the illegal organisation.

On 12 April 1994 the Istanbul State Security Court delivered a judgment identical to the first one. The court noted that the applicant had refuted the confession statements she made in police custody and that the two witnesses had withdrawn their statements as they had been made under duress at the police station. The court held that there was no sufficient and convincing evidence to convict the applicant. It ruled that the applicant should be acquitted.

On 3 October 1994 the Joint Criminal Chambers of the Court of Cassation quashed the Istanbul State Security Court’s judgment on the ground that there was sufficient evidence against the applicant to convict her. The case was referred once again back to the İstanbul State Security Court.

On 18 December 1995 the Istanbul State Security Court found the applicant guilty as charged and sentenced her to three years and nine months’ imprisonment and debarred her from holding public office for three years. The applicant appealed. Furthermore, she requested a hearing before the Court of Cassation .

On 9 July 1996 the Court of Cassation dismissed the applicant’s request for a hearing on account of the fact that the request was lodged out of time. Moreover, it upheld the judgment of the Istanbul State Security Court.

B. Relevant domestic law

“Any person, who knowing that such an armed gang or organisation is illegal, assists it, harbours its members, provides it with food, weapons and ammunition or clothes or facilitates its operations in any manner whatsoever shall be sentenced to not less than three and not more than five years’ imprisonment...”

Under Article 4 of the Prevention of Terrorism Act (Law no. 3713 of 12 April 1991), the offence defined in section 169 of the Criminal Code is classified in the category of “acts committed to further the purposes of terrorism”.

Pursuant to Article 5 of Law no. 3713, penalties laid down in the Criminal Code as punishment for the offences defined in Article 4 of the Act are increased by one half.

COMPLAINTS

The applicant makes several complaints under Article 6 of the Convention.

She complains firstly that she did not have a fair hearing by an independent and impartial tribunal due to the presence of a military judge on the bench of the Istanbul State Security Court.

She contends that the Court of Cassation did not respect the principles of adversarial procedure or equality of arms and did not hold a hearing. She invokes Article 6 § 3 (c) and (d) of the Convention.

She maintains that the Court of Cassation based its decision on the statements of two witnesses who had withdrawn their statements because they had been made under duress at the police station.

The applicant finally complains that the criminal proceedings brought against her were not concluded within a “reasonable time” as required by Article 6 § 1 of the Convention.

THE LAW

1. The applicant complained that her right to a fair hearing was breached on account of the presence of a military judge on the bench of the Istanbul State Security Court which tried and convicted her. She also argued that the fact that the Court of Cassation based its decision on the statements of two witnesses who had withdrawn their statements, as they had been made under duress at the police station, jeopardised the fairness of the procedure. Furthermore, she complained that the refusal of her request for an oral hearing before the Court of Cassation violated the “equality of arms” principle and the rights of the defence. She invoked Article 6 § 1 of the Convention which provides as relevant:

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

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

Furthermore, they submitted that the State Security Court which tried the applicant insisted on its decision of acquittal, although it was contrary to the decision of the Court of Cassation . It maintained its decision of acquittal until the Criminal Chamber of the Court of Cassation had rendered a final decision in this connection.

The Court considers, in the light of the parties’ submissions that these complaints raise complex issues of law and fact under the Convention, the determination of which should depend on an examination of their 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.

2. The applicant complained that the length of the criminal proceedings brought against her lasted four years and two months, in breach of the reasonable time requirement of the aforementioned Article 6 § 1 of the Convention.

The Government stated that, considering the various phases of the procedure, the period of four years and two months was reasonable. In this regard, they maintained that the judgment of the Istanbul State Security Court had been challenged three times before the Court of Cassation. Moreover, when the Court of Cassation referred the case to the Istanbul State Security Court for the second time, the applicant did not attend the hearings. On 23 March 1995 the State Security Court ordered her detention on remand in her absence. The applicant was arrested and brought before the court only on 31 October 1995.

The Court notes that the period to be taken into consideration began on 30 May 1992 when the applicant was taken into police custody and ended on 9 July 1996 when the Court of Cassation upheld the judgment of the Istanbul State Security Court. The proceedings thus lasted approximately four years and two months.

The Court recalls 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).

The Court notes that the applicant’s conviction was challenged before the Court of Cassation three times. In these circumstances, it considers that the total period of four years and two months was not unreasonably long. Moreover, the applicant has not shown any substantial periods of inactivity attributable to the judicial authorities.

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.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant’s complaints concerning her right to a fair hearing by an independent and impartial tribunal;

Declares the remainder of the application inadmissible.

S. Dollé J. P. Costa Registrar President