SECOND SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 31879/96 by Ş aban DEĞİRMENCİ and Others against Turkey

The European Court of Human Rights (Second Section) , sitting on 24 September 2002 as a Chamber composed of

Mr J.-P. Costa , President , Mr L. Loucaides ,

Mr R. Türmen , Mr C. Bîrsan , Mr K. Jungwiert , Mr V. Butkevych , Mrs W. Thomassen ,, judges , and Mr T.L. Early , Deputy Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 27 May 1996,

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 Court’s partial decision of 16 November 1999,

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

Having deliberated, decides as follows:

THE FACTS

The applicants, whose names appear in the table below, are Turkish national s. They are repr esented before the Court by Mrs Şenal Sarıhan , a lawyer practising in Ankara.

A. The circumstances of the case

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

Between 1979 and 1985 the applicants were arrested by policemen and placed in police custody. They were accused of membership of an illegal organisation, the Dev-Yol (Revolutionary Way). The Ankara Martial Law Court ( S ıkıyönetim Mahkemesi ) remanded the applicants in custody.

The beginning and the end of the criminal proceedings against the applicants are as follows:

Applicant’s name

Beginning of the criminal proceedings

End of the criminal proceedings

1) Åžaban DeÄŸirmenci

17 February 1981

27 December 1995

2) Mehmet Baha Çetintaş

5 February 1981

27 December 1995

3) Yılmaz Ergül

17 July 1980

27 December 1995

4) Ä°brahim Arslan

9 July 1981

27 December 1995

5) Ercan UÄŸur

18 August 1981

27 December 1995

6) İsmail Tayfun Üstün

27 December 1980

27 December 1995

7) Abdullah Evcil

9 April 1980

27 December 1995

8) Abdullah Şengörenoğlu

6 December 1980

27 December 1995

9) İsmail Tümay

12 December 1980

27 December 1995

10) Ziya Uncu

24 November 1980

27 December 1995

11) Mehmet Ãœresin

17 July 1980

27 December 1995

12) Naci Zaman

17 September 1980

27 December 1995

13) Özgür Ovacık

24 September 1980

27 December 1995

14) Kemal Elhan

27 October 1980

27 December 1995

15) Murat Parlakay

23 November 1980

still pending

16) Celal Mut

1 October 1980

still pending

17) Mehmet Hassoy

24 January 1980

still pending

18) Bedia Zehra Torun

22 January 1981

27 December 1995

19) Arif Kandemir

10 September 1981

27 December 1995

20) Nejdet Özen

11 April 1980

27 December 1995

21) Metin Bakkalcı

8 October 1980

27 December 1995

22) Lütfi Doğan Tılıç

20 April 1981

27 December 1995

23) Hürriyet Eğer

2 September 1979

27 December 1995

24) Esma Güzel

9 September 1980

27 December 1995

25) Tuncay Kara

24 November 1980

27 December 1995

26) Ali Özkan Çakırlar

1 December 1980

27 December 1995

27) Ertuğrul Özbek

31 August 1980

27 December 1995

28) Mehmet Åžahin

4 September 1980

27 December 1995

29) Mehmet Akif Aküzüm

31 October 1980

27 December 1995

30) Mehmet Nuri Sarpkaya

11 November 1980

27 December 1995

31) Abdülrezzak Erten

29 October 1980

27 December 1995

32) Burhan Çam

7 November 1980

27 December 1995

33) Hacı Badem

9 September 1980

27 December 1995

34) Sami AltuntaÅŸ

29 October 1980

27 December 1995

35) Ahter Yıldız

12 July 1981

27 December 1995

36) Recai Kireç

7 September 1979

27 December 1995

37) Halil UlutaÅŸ

21 September 1984

27 December 1995

On 26 February 1982 the Military Public Prosecutor filed a bill of indictment with the Ankara Martial Law Court setting out the charges against 723 defendants, including the applicants. He accused the applicants of membership of an organisation whose aim was to undermine the constitutional order and replace it with a Marxist-Leninist regime, contrary to Article 146 § 1 of the Turkish Criminal Code.

On different dates the applicants were all released pending trial by the Ankara Martial Law Court.

After martial l aw was lifted, the Ankara Martial Law Court took the name of the Martial Law Court attached to the 4th Army Corps.

On 19 July 1989 the Martial Law Court convicted the applicants and sentenced them to various terms of imprisonment.

As the applicants’ sentences exceeded 15 years’ imprisonment, their cases were automatically referred to the Military Court of Cassation ( Askeri Yargıtay ).

Following promulgation of the Law of 26 December 1994, which abolished the jurisdiction of the martial law courts, the Court of Cassation ( Yargıtay ) acquired jurisdiction over the cases and the files were sent to it.

On 27 December 1995 the Court of Cassation decided:

- to uphold the first-instance court’s judgment in respect of 13 of the applicants ( Baha Çetintaş , Yılmaz Ergül , Mehmet Üresin , İbrahim Arslan , Tayfun Üstün , Abdullah Evcil , Kemal Elhan , Ercan Uğur , Naci Zaman , Özgür Ovacık , Abdullah Şengörenoğlu , İsmail Tümay , Ziya Uncu );

- to quash the first-instance court’s judgment on the ground that the court had failed to apply the legal provisions relevant to the crime in question in respect of 3 of the applicants ( Murat Parlakay , Celal Mut , Mehmet Hassoy ) and to transfer the cases to the Ankara Assize Court; and,

- to uphold the first-instance court’s judgment with some amendments in respect of 7 of the applicants ( Arif Kandemir , Hürriyet Eğer , Nejdet Özen , Lütfi Doğan Tılıç , Bedia Zehra Torun , Metin Bakkalcı , Şaban Değirmenci ).

As regards 14 of the applicants ( Tuncay Kara, Ertuğrul Özbek , Mehmet Şahin , Burhan Çam , Esma Güzel , Ali Özkan Çakırlar , Mehmet Akif Aküzüm , Mehmet Nuri Sarpkaya , Abdülrezzak Erten , Hacı Badem , Sami Altıntaş , Ahter Yıldız , Recai Kireç , Halil Ulutaş ), the Court of Cassation held that the criminal proceedings should be discontinued on the ground that the prosecution was time-barred ( zamanaşımı ).

COMPLAINTS

The applicants all complain under Article 6 § 1 of the Convention that the criminal proceedings brought against them were not concluded within a “reasonable time” as required by Article 6 § 1 of the Convention.

The applicants nos. 1-23 submit under Article 6 § 1 of the Convention that they were denied a fair trial since they were tried by the Martial Law Court which lacked independence and impartiality.

The applicants nos.1-23 allege under Article 6 § 1 of the Convention that the courts convicted them on the basis of statements they had made to the police under duress.

The applicants nos. 1-23 finally allege under Article 6 § 3 (b) of the Convention that they were deprived of their right to have adequate time and facilities for the preparation of their defence.

THE LAW

1 . The applicants all complain that the criminal proceedings brought against them were not concluded within a “reasonable time” within the meaning of Article 6 § 1 of the Convention, which provides as relevant:

“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by a ... tribunal...”

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, this part of the application should be declared inadmissible.

The Court recalls 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 applicants were charged. They maintain that the courts had to deal with a trial involving 723 defendants, including the applicants, whose activities and connections with other defendants had to be established. T he Martial Law Court followed an expedited procedure and made every effort to speed up the trial. The public prosecutor’s bill of indictment comprised two volumes of approximately 1,320 pages, and his presentation to the domestic courts - no less than 1,760 pages in length - lasted forty-three days. Lastly, the full judgment consisted of 6 volumes of approximately 3,890 pages.

The Government also point out that 723 defendants were charged with more than 607 crimes and were convicted of murder and bombing offences. The Government claim that these circumstances explained the length of the proceedings and that no negligence or delay was imputable to the judicial authorities.

The applicants maintained their allegations and submitted that the delays were not attributable to them.

The Court considers, in the light of the parties’ submissions, that this part of the application raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits of the application. The Court 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 applicants nos. 1-23, i.e. Şaban Değirmenci , Mehmet Baha Çetintaş , Yılmaz Ergül , İbrahim Arslan , Ercan Uğur , İsmail Tayfun Üstün , Abdullah Evcil , Abdullah Şengörenoğlu , İsmail Tümay , Ziya Uncu , Mehmet Üresin , Naci Zaman , Özgür Ovacık , Kemal Elhan , Murat Parlakay , Celal Mut , Mehmet Hassoy , Bedia Zehra Torun , Arif Kandemir , Nejdet Özen , Metin Bakkalcı , Lütfi Doğan Kılıç and Hürriyet Eğer submit that their right to a fair hearing by an independent and impartial tribunal was breached as they were tried by the Martial Law Court composed of two military judges, two civilian judges and an army officer. The army officer had no legal training and was accountable to the commander of the state of martial law. The two military judges on the bench were servicemen who belonged to the army and took orders from the executive. They were subject to military discipline and assessment reports were compiled on them by the army for that purpose. They invoke 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 ... hearing ... by an independent and impartial tribunal established by law.”

The respondent Government submit in reply that the two military judges and the two civilian judges sitting on the Martial Law Court enjoyed the guarantees of judicial independence and immunity laid down in the Constitution. The sole task of the army officer on the bench was to ensure the proper functioning of the hearing and he had no other judicial power.

The Government further submit that the procedure for the appointment and the assessment of the military judges sitting on the Martial Law Courts and the safeguards they enjoyed in the performance of their judicial duties perfectly satisfied the criteria laid down by the Court’s case-law on the subject.

a) The Court considers, in the light of the parties’ submissions, that this part of the application raises complex issues of law and fact under the Convention in respect of 20 of the 23 applicants, namely Şaban Değirmenci , Mehmet Baha Çetintaş , Yılmaz Ergül , İbrahim Arslan , Ercan Uğur , İsmail Tayfun Üstün , Abdullah Evcil , Abdullah Şengörenoğlu , İsmail Tümay , Ziya Uncu , Mehmet Üresin , Naci Zaman , Özgür Ovacık , Kemal Elhan , Bedia Zehra Torun , Arif Kandemir , Nejdet Özen , Metin Bakkalcı , Lütfi Doğan Kılıç and Hürriyet Eğer , the determination of which should depend on an examination of the merits of the application. The Court 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.

b) The Court notes, on the other hand, that on 27 December 1995 the Court of Cassation quashed the Martial Law Court’s judgment in respect of the remaining three of the 23 applicants, namely, Murat Parlakay , Celal Mut and Mehmet Hassoy . A re-trial was ordered and the case file was sent to the Ankara Assize Court, the independence and impartiality of which was not challenged by these applicants. The criminal proceedings against them are still pending before this court. In these circumstances, the Court finds that the applicants cannot claim to be victims of a violation of their right under Article 6 § 1 of the Convention.

It follows that their complaint regarding their right to a fair hearing by an independent and impartial tribunal is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

3. The applicants nos. 1-23 allege that their right to a fair trial was breached since the courts convicted them on the basis of statements they had made to the police under duress. They again invoke the fairness requirement of Article 6 § 1 of the Convention.

The Government dispute these allegations. They claim that the statements made by the applicants during their police custody were not the sole ground for their conviction. They maintain that the courts relied on the applicants’ own confessions before the public prosecutor and other relevant evidence, notably the weapons found in the applicants’ possession and ballistics and expertise reports confirming their use of those weapons.

The applicants did not address this issue in their observations.

a) The Court points out, as regards 20 of the 23 applicants, namely Şaban Değirmenci , Mehmet Baha Çetintaş , Yılmaz Ergül , İbrahim Arslan , Ercan Uğur , İsmail Tayfun Üstün , Abdullah Evcil , Abdullah Şengörenoğlu , İsmail Tümay , Ziya Uncu , Mehmet Üresin , Naci Zaman , Özgür Ovacık , Kemal Elhan , Bedia Zehra Torun , Arif Kandemir , Nejdet Özen , Metin Bakkalcı , Lütfi Doğan Kılıç and Hürriyet Eğer , that the admissibility of evidence is primarily a matter for regulation by national law and, as a rule, it is for the national courts to assess the evidence before them (see the Kostovski v. the Netherlands judgment of 20 November 1989, Series A no. 166, p. 19, § 39). However, an issue may arise under Article 6 § 1 in respect of evidence obtained in violation of Article 3 of the Convention even if the admission of such evidence was not decisive in securing the conviction (see Şahiner v. Turkey (dec.), no. 29279/95, 11.1.2000, unreported).

In the instant case, the Court notes that in the proceedings before the Martial Law Court the applicants confined themselves to challenging the admissibility of their statements to the police officers. However, apart from the allegation that their statements were taken under duress, they did not at any stage give any indication to the national courts of the sort of ill-treatment which they allegedly suffered. The Court further observes that the applicants have not adduced any concrete evidence, such as a medical certificate, of having been subjected to duress which attained the level of severity proscribed by Article 3 of the Convention. In this regard, the Court is of the opinion that the applicants have not laid the basis of an arguable claim that their statements during their police custody were extracted in circumstances which were in breach of Article 3.

b) In respect of the remaining three applicants, namely Murat Parlakay , Celal Mut and Mehmet Hassoy , the Court refers to its reasoning in the previous paragraphs that they cannot be considered victims within the meaning of Article 34 § 3 of the Convention, given that the Court of Cassation quashed the Martial Law Court’s judgment convicting these applicants.

4. The applicants nos. 1-23 allege that they were deprived of their right to have adequate time and facilities for the preparation of their defence having regard to their inability during their incarceration to have private consultations with their lawyers as well as to the limited time given to them to consult their lawyers. They invoke Article 6 § 3 (b) of the Convention which provides as follows:

“3. Everyone charged with a criminal offence has the following minimum rights:

...

(b) to have adequate time and facilities for the preparation of his defence;

...”

a) The Court notes, as regards 20 of the 23 applicants, namely, Şaban Değirmenci , Mehmet Baha Çetintaş , Yılmaz Ergül , İbrahim Arslan , Ercan Uğur , İsmail Tayfun Üstün , Abdullah Evcil , Abdullah Şengörenoğlu , İsmail Tümay , Ziya Uncu , Mehmet Üresin , Naci Zaman , Özgür Ovacık , Kemal Elhan , Bedia Zehra Torun , Arif Kandemir , Nejdet Özen , Metin Bakkalcı , Lütfi Doğan Kılıç and Hürriyet Eğer , that the Government did not comment on the applicants’ allegations that they did not have adequate time to prepare their defence.

The Court considers, in the light of the parties’ submissions, that this part

of the application raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits of the application. The Court 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.

b) In respect of the remaining three applicants, namely Murat Parlakay , Celal Mut and Mehmet Hassoy , the Court refers to its reasoning in the previous paragraphs that they cannot be considered victims within the meaning of Article 34 § 3 of the Convention, given that the Court of Cassation quashed the Martial Law Court’s judgment convicting these applicants.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, all of the applicants’ complaints concerning the alleged breach of their right to a hearing within a reasonable time and Şaban Değirmenci , Mehmet Baha Çetintaş , Yılmaz Ergül , İbrahim Arslan , Ercan Uğur , İsmail Tayfun Üstün , Abdullah Evcil , Abdullah Şengörenoğlu , İsmail Tümay , Ziya Uncu , Mehmet Üresin , Naci Zaman , Özgür Ovacık , Kemal Elhan , Bedia Zehra Torun , Arif Kandemir , Nejdet Özen , Metin Bakkalcı , Lütfi Doğan Kılıç and Hürriyet Eğer’s complaints as regards the violation of their right to a fair hearing by an independent and impartial tribunal and of their right to have adequate time and facilities for the preparation of their defence.

Declares inadmissible the remainder of the application.

T.L. Early J.-P. Costa              Deputy Registrar President