SECOND SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 39810/98 by Osman Nuri RAMAZANOÄžLU against Turkey

The European Court of Human Rights (Second Section) , sitting on 10 September 2002 as a Chamber composed of

Mr J.-P. Costa , President , Mr A.B. Baka , Mr Gaukur Jörundsson , Mr R. Türmen ,

Mr K. Jungwiert , Mr V. Butkevych , Mrs W. Thomassen , judges , and Mrs S. Dollé , Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 16 December 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 Court’s partial decision of 12 April 2001,

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 applicant is a Turkish national born in 1956 and living in Istanbul. He is represented before the Court by Ms Oya Ersoy Ataman , a lawyer practising in Ankara.

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

On 15 September 1981 police officers from the Ankara Security Directorate arrested the applicant at his mother’s house in Safranbolu District of Zonguldak , on suspicion of membership of an illegal organisation, the Dev-Yol (Revolutionary Way). He was placed in custody at the Ankara Security Directorate. The applicant stated during his questioning that he had hidden ammunition belonging to the organisation in the chimney of his mother’s house. A search was conducted of the house and a large number of weapons and bullets, including a Kalashnikov automatic rifle and dynamite, were recovered.

On 27 October 1981 the applicant was brought before the Military Court judge who ordered his detention on remand.

On 26 February 1982 the public prosecutor at the Martial Law Court, whose jurisdiction covered Ankara, Çankırı and Kastamonu Provinces, indicted the applicant together with 723 others. The charges against the defendants included membership of Dev-Yol , an organisation which aimed to replace the constitutional order with a Marxist-Leninist regime contrary to Article 146 of the Turkish Criminal Code. The applicant was further charged with robbery, bombing and armed attacks against persons, and opening fire on three houses.

On 11 November 1987 after having spent six years, one month and eight days in the prison, the applicant was released pending trial.

On 19 July 1994 the Martial Court found the applicant guilty of the aforementioned offences. It was also established that the ammunition found in the house of the applicant’s mother had been used in various illegal activities. The applicant was convicted of an offence under Article 146 § 3 of the Turkish Criminal Code. The applicant appealed to the Military Court of Cassation ( Askeri Yargıtay ) .

On 26 December 1994 following the promulgation of the Law no. 3953 of 27 December 1993 which abolished the jurisdiction of the Martial Courts, the case-file was sent from the Military Court of Cassation to the Criminal Division of the Court of Cassation ( Yargıtay Ceza Dairesi ) .

On 27 December 1995 the Court of Cassation quashed the judgment of the first instance court and sent the case-file to the Ankara Assize Court for re-sentencing under Article 146 § 1 of the Turkish Criminal Code which only prescribed capital punishment.

On 16 July 2002 the Ankara Assize Court found the applicant guilty under Article 146 § 1 of the Turkish Criminal Code and sentenced him to death. This sentence was commuted to a life sentence. The applicant’s appeal against this judgment is at present pending before the Court of Appeal.

THE LAW

The applicant’s complaint relates to the length of the proceedings, which began on 15 September 1981, the date of the applicant’s arrest, and are still pending. They have therefore already lasted almost 21 years.

According to the applicant, the length of the proceedings is in breach of the “reasonable time” requirement laid down in Article 6 § 1 of the Convention.

The Government submit that the applicant failed to exhaust domestic remedies as he did not raise the right to be tried within a reasonable time at any stage of the proceedings.

The Court notes that the only remedies which Article 35 § 1 of the Convention requires to be exhausted are those that relate to the breaches alleged; the existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness; and it falls to the respondent State, if it pleads non-exhaustion, to establish that these conditions are satisfied (see, amongst many authorities, the De Jong , Baljet and Van den Brink v. the Netherlands judgment of 22 May 1984, Series A no. 77, p. 19, § 39). The Court observes that the Government have not established the existence of any effective remedy in this connection. It therefore rejects their objection.

As to the merits of the case, the Government deny the allegation that the length of the proceedings is in breach of the “reasonable time” requirement laid down in Article 6 § 1 of the Convention. T hey highlight the complexity of the cases and the nature of the offences with which the applicant was charged. They point out that the courts dealt with a trial involving 723 defendants, including the applicant, whose activities and connections had to be established. The Government claim that no negligence or delay was imputable to the judicial authorities.

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.

S. Dollé J.-P. Costa Registrar President