THIRD SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 32984/96 by Ali ALFATLI and Others against Turkey

The European Court of Human Rights (Third Section), sitting on 27 June 2002 as a Chamber composed of

Mr G. Ress , President , Mr I. Cabral Barreto , Mr L. Caflisch , Mr R. Türmen , Mr B. Zupančič , Mrs H.S. Greve , Mr K. Traja , judges , and Mr V. Berger , Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights by letters of 7, 8, 12, 18, 24 and 25 June 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 First Section’s partial decision of 23 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 are 16 Turkish nationals whose names are indicated in the appendix, and except Nevzat Cömert and Özgür Şahin , they are represented before the Court by Mr Zeki Tavşancıl and Mr Mehdi Bektaş , lawyers practising in Ankara.

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

Between 1980 and 1985 the applicants were arrested and placed in police custody. They were accused of membership of an illegal organisation, the Dev-Yol (Revolutionary Way). The Ank ara Martial Law Court ( S ıkıyönetim Mahkemesi ) ordered the applicants’ detention on remand.

On 26 February 1982 the Military Public Prosecutor filed a bill of indictment with the Ankara Martial Law Court setting out charges against seven hundred and twenty-three 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 Articles 146 § 1 and 168 § 2 of the Criminal Code.

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

After martial law 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 fifteen years’ imprisonment, their cases were automatically referred to the Military Court of Cassation ( A skeri Yargıtay ).

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

On 27 December 1995 the Court of Cassation held that the criminal proceedings brought against the applicants Haşim Aydıncak , Nusrat Safa Akyürek and Ahmet Asena should be discontinued on the ground that the prosecution was time-barred. The court quashed Sedat Göçmen’s conviction and referred the case to the Ankara Assize Court ( A ğır Ceza Mahkemesi ). It upheld the other applicants’ conviction.

On 24 June 1997 the Ankara Assize Court ruled that the criminal proceedings against Sedat Göçmen should be discontinued since the prosecution was time-barred.

Details are indicated in the table below:

Applicants

Date of arrest

Date of detention on remand

Date of release

Date of finalisation of criminal proceedings

Ali Alfatlı

16 February 1981

24 April 1981

23 July 1991

27 December 1995

Haşim Aydıncak

23 September 1980

31 O ctober 1980

1 January 1984

27 December 1995

Nusrat Safa Akyürek

11 December 1980

10 March 1981

17 December 1985

27 December 1995

Ahmet Asena

2 February 1981

18 March 1981

1 January 1984

27 December 1995

Mahmut Memduh Uyan

2 February 1985

18 March 1985

6 February 1995

27 December 1995

İbrahim Levent Saçılanate

12 March 1981

26 April 1981

23 July 1991

27 December 1995

Mehmet Kutlandur

30 November 1980

26 January 1981

23 July 1991

27 December 1995

Nevzat Cömert

2 March 1981

11 May 1981

23 July 1991

27 December 1995

Özgür Şahin

22 November 1980

6 February 1981

23 July 1991

27 December 1995

Bülent Fonta

20 November 1980

20 February 1981

23 July 1991

27 December 1995

Hüseyin Cihan

29 October 1980

3 December 1980

23 July 1991

27 December 1995

Hasan Yorulmaz

27 February 1981

11 May 1981

23 July 1991

27 December 1995

Ahmet Kirami Kılınç

13 March 1981

13 May 1981

31 December 1983

27 December 1995

Mehmet Engin Höke

26 November 1980

17 February 1981

19 July 1989

27 December 1995

Mustafa Aslan

27 September 1982

11 October 1982

23 July 1991

27 December 1995

Sedat Göçmen

7 February 1981

1 July 1981

24 August 1988

24 June 1997

COMPLAINTS

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

2. The applicants Haşim Aydıncak , Nusrat Sefa Akyürek , Ahmet Asena , Mahmut Memduh Uyan , İbrahim Levent Saçılanateş , Hüseyin Cihan , Hasan Yorulmaz , Ahmet Kirami Kılınç , Mehmet Engin Höke , Mustafa Aslan and Sedat Göçmen submit under Article 6 § 1 of the Convention that their right to a fair hearing was breached as they were tried by the Martial Law Court which lacked independence and impartiality.

3. The applicants all allege under Article 6 § 1 of the Convention that their right to a fair hearing was breached since the courts convicted them on the basis of the statements they had made to the police under duress.

4. The applicant Sedat Göçmen further alleges under Article 6 § 3 (b) of the Convention that he was deprived of his right to have adequate time and facilities for the preparation of his defence.

THE LAW

1 . The applicants 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.

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 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 under this part cannot be upheld.

As regards the merits of the case, the Government submit that the length of the criminal proceedings brought against the applicants could not be considered to be unreasonably long owing to the difficulties 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 dealt 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 compromised two volumes, approximately 1320 pages, and the presentation of his requisition before the domestic courts, no less then 1760 pages, lasted forty-three days. Lastly, the full judgment consisted of 6 volumes, of approximately 3890 pages.

The Government also point out that 723 defendants were charged with more than 607 crimes in total 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 observe in reply that they were held in detention on remand for periods ranging from two to ten years and that for more than 15 years the courts were unable to deliver a final judgment on their case. The complexity of the case and the large number of defendants cannot justify the length of the proceedings, which lasted more than 15 years. The applicants further allege that during this period they could not find jobs and that they suffered pecuniary and non-pecuniary damage.

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 Haşim Aydıncak , Nusrat Sefa Akyürek , Ahmet Asena , Mahmut Memduh Uyan , İbrahim Levent Saçılanateş , Hüseyin Cihan , Hasan Yorulmaz , Ahmet Kirami Kılınç , Mehmet Engin Höke , Mustafa Aslan and Sedat Göçmen also submit, under Article 6 § 1 of the Convention, 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 who has no legal training is accountable to the commander of the state of martial law. The two military judges on the bench are servicemen who belong to the army and take orders from the executive. They are subject to military discipline and assessment reports are compiled on them by the army for that purpose.

The respondent Government submit in reply that the two military judges and the two civilian judges sitting on the Martial Law Court enjoy the guarantees of judicial independence and immunity laid down in the Constitution. The sole task of the army officer on the bench is to ensure the proper functioning of the hearing and he has 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 enjoy in the performance of their judicial duties perfectly satisfy 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 Mahmut Memduh Uyan , İbrahim Levent Saçılanateş , Hüseyin Cihan , Hasan Yorulmaz , Ahmet Kirami Kılınç , Mehmet Engin Höke and Mustafa Aslan , 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 further notes that on 27 December 1995 the Court of Cassation ruled that the criminal proceedings against Haşim Aydıncak , Nusrat Safa Akyürek and Ahmet Asena should be discontinued, in view of the fact that the prosecution was time-barred. The Court further points out that on 24 June 1997 the Ankara Assize Court decided that the criminal proceedings against Sedat Göçmen be terminated based on the above-mentioned reasoning. Therefore, these four applicants can no longer be considered as victims of the alleged breach (see Ketenoğlu and Ketenoğlu v. Turkey , nos. 29360/95 and 29361/95, judgment of 25 September 2001, §§ 36-7). 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 all allege under Article 6 § 1 of the Convention 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.

The applicant Sedat Göçmen further complains under Article 6 § 3 (b) of the Convention that he was deprived of his right to have adequate time and facilities for the preparation of his defence.

Regarding the applicants’ complaints under Article 6 § 1 of the Convention, the Government dispute the 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 contend in reply that the statements they made to police during their custody, which lasted between thirty to ninety days for different applicants, were given under duress, and that the courts based their conviction solely on these statements.

Moreover, the Government dispute Sedat Göçmen’s allegation under Article 6 § 3 (b) of the Convention. They argue that the applicant did not provide any precision or basis of a concrete argument to substantiate his claims.

a) As regards Ali Alfatlı , Mahmut Memduh Uyan , İbrahim Levent Saçılanateş , Mehmet Kutlandur , Nevzat Cömert , Özgür Şahin , Bülent Fonta , Hüseyin Cihan , Hasan Yorulmaz , Ahmet Kirami Kılınç , Mehmet Engin Höke and Mustafa Aslan , the Court points out 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.

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 did not specifically set out in their application forms to the Commission the details of the alleged duress during their police custody. It is also to be noted that they have not adduced any concrete evidence, such as a medical certificate, of having been subjected to duress as alleged. 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 taken under duress.

b) In respect of Haşim Aydıncak , Nusrat Safa Akyürek , Ahmet Asena and Sedat Göçmen , the Court refers to its reasoning in the previous paragraphs that they cannot be considered as victims within the meaning of Article 34 § 3 of the Convention, given that the criminal proceedings against them were discontinued on 27 December 1995 and 24 June 1997.

It follows that the applicants’ allegations under Article 6 §§ 1 and 3 (b) are manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, all applicants’ complaint concerning the alleged breach of their right to a hearing within a reasonable time and Mahmut Memduh Uyan’s , İbrahim Levent Saçılanateş’s , Hüseyin Cihan’s , Hasan Yorulmaz’s , Ahmet Kirami Kılınç’s , Mehmet Engin Höke’s and Mustafa Aslan’s complaint as regards the violation of their right to a fair hearing by an independent and impartial tribunal;

Declares inadmissible the remainder of the application.

Vincent Berger Georg Ress Registrar President

APPENDIX

Applicants

Date of birth

Represented by

Ali Alfatlı

1952Zeki Tavşancıl

Haşim Aydıncak

1953Mehdi BektaÅŸ

Nusrat Safa Akyürek

1954Mehdi BektaÅŸ

Ahmet Asena

1954Mehdi BektaÅŸ

Mahmut Memduh Uyan

1955Mehdi BektaÅŸ

İbrahim Levent Saçılanate

1954Mehdi BektaÅŸ

Mehmet Kutlandur

1957Zeki Tavşancıl

Nevzat Cömert

1960representation in person

Özgür Şahin

1953Ahmet Atak

Bülent Fonta

1956Mehdi BektaÅŸ

Hüseyin Cihan

1960Mehdi BektaÅŸ

Hasan Yorulmaz

1960Mehdi BektaÅŸ

Ahmet Kirami Kılınç

1959Mehdi BektaÅŸ

Mehmet Engin Höke

1957Mehdi BektaÅŸ

Mustafa Aslan

1956Mehdi BektaÅŸ

Sedat Göçmen

1952Mehdi BektaÅŸ