FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 32982/96 by Mehmet YALÇIN against Turkey

The European Court of Human Rights (First Section) , sitting on 17 October 2000 as a Chamber composed of

Mrs E. Palm, President , Mr L. Ferrari Bravo, Mr Gaukur Jörundsson, Mr B. Zupančič, Mr T. Panţîru, Mr R. Maruste, judges , Mr F. Gölcüklü, ad hoc judge,

and Mr M. O’Boyle, Section Registrar,

Having regard to the above application introduced with the European Commission of Human Rights on 20 June 1996 and registered on 17 September 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 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 Ä°zmir (Turkey). He is represented before the Court by Mr Mehmet Ay , 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.

On 22 November 1980 the applicant was arrested by police officers in a house in Ankara used by militants of an illegal organisation, the Dev-Yol ( Revolutionary Way ).

On 5 January 1981 the applicant stated to the police officers that he had been involved in the illegal activities of the Dev-Yol , namely hanging illegal banners and writing slogans [on walls] in the Sıhhiye district of Ankara. However, during his questioning by the public prosecutor and at the court hearings the applicant denied his involvement in the Dev-Yol and alleged that he had made his statements to the police officers under duress.

On 27 January 1981 the Ankara Martial Law Court ( sıkıyönetim mahkemesi ) ordered the applicant’s detention on remand.

On 26 February 1982 the Military Public Prosecutor filed a bill of indictment with the Ankara Martial Law Court against the applicant along with 723 other defendants. He accused the applicant of membership of the Dev-Yol , an armed organisation whose aim was to undermine the constitutional order and replace it with a Marxist-Leninist regime, contrary to Article 146 of the Turkish Criminal Code. The Public Prosecutor further alleged, inter alia , that the applicant had been involved in a number of crimes such as the bomb attack on the Türk Metal- Ä°ÅŸ Labour Union and writing illegal slogans and hanging banners for the Dev ‑ Yol .

On 30 November 1993 the applicant was 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 applicant, under section 168 § 2 of the Turkish Criminal Code, of membership of the Dev-Yol , but acquitted him of charges concerning his alleged involvement in the bomb attack on the Türk Metal- İş Labour Union. The court found that the applicant had been an active member of the Dev-Yol and that he had been involved in illegal activities, such as hanging illegal banners and writing slogans [on walls] for the said organisation in the Sıhhiye district of Ankara. In its judgment the court relied on the evidence given by other accused Dev-Yol militants at the military public prosecutor’s office and before the investigating judge. The court considered also that the applicant had been arrested in a house along with a Dev-Yol militant who was in possession of a false identity card and that the house was used to store the organisation’s weapons. It finally sentenced the applicant to 6 years and 8 months’ imprisonment and debarred him from employment in the civil service.

The applicant appealed 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 case and the case file was sent to it.

On 28 December 1995 the Court of Cassation upheld the applicant’s conviction.

B. Relevant domestic law and practice

Section 168 of the Turkish Criminal Code provides:

“Any person who, with the intention of committing the offences defined in Articles ..., forms an armed gang or organisation or takes leadership ... or command of such a gang or organisation or assumes some special responsibility within it shall be sentenced to not less than fifteen years’ imprisonment.

The other members of the gang or organisation shall be sentenced to not less than five and not more than fifteen years’ imprisonment.”

COMPLAINTS

The applicant alleges under Article 6 § 1 of the Convention that his right to a fair trial was breached since the courts convicted him on the basis of the statements he had made to the police under duress.

In his letter of 3 February 1999 t he applicant submits that the criminal proceedings brought against him were not concluded within a “reasonable time” in breach of Article 6 § 1.

THE LAW

1. The applicant alleges under Article 6 § 1 of the Convention that his right to a fair trial was breached since the courts convicted him on the basis of the statements he had made to the police under duress.

The Government refute the applicant’s allegation. They claim that the statements made by the applicant during his pre-trial detention were not the sole ground for his conviction. They maintain that the courts relied on the evidence given by several witnesses, experts and other relevant evidence as well as the applicant’s own confessions. In the Government’s opinion the courts had sufficient evidence to convict the applicant and, on that account, the applicant’s above complaints should be rejected as being manifestly ill-founded.

The applicant contends in reply that there was no evidence to ground his conviction other than the statements he had made to the police under duress.

The Court points out that the Convention does not lay down rules on evidence as such. 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 applicant confined himself to challenging the admissibility of his statements to the police officers. However, apart from the allegation that his statements were taken under duress he did not at any stage give any indication of the sort of ill-treatment which he allegedly suffered. The Court further observes that the applicant did not specifically set out in his application form to the Commission the details of the alleged duress during his pre-trial detention. It is also to be noted that he has not adduced any concrete evidence of having been subjected to duress as alleged. In this regard, the Court is of the opinion that the applicant has not laid the basis of an arguable claim that his statements during his pre-trial detention were taken under duress.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

2. T he applicant complains under Article 6 § 1 of the Convention that the criminal proceedings brought against him were not concluded within a “reasonable time”.

The Court notes that the applicant did not raise this particular complaint in his original application of 20 June 1996. The criminal proceedings against the applicant were terminated by the Court of Cassation’s judgment of 28 December 1995, whereas the applicant only complained of the length of the criminal proceedings in his letter of 3 February 1999. It is therefore clear that the applicant’s above complaint under Article 6 § 1 of the Convention was not lodged within six months after the end of the situation of which complaint is made. Furthermore, the Court finds no indication of the existence of specific circumstances which might have prevented the applicant from observing the time-limit laid down in Article 35 § 1 of the Convention.

It follows that this part of the application has been introduced out of time and must be rejected under Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE .

Michael O’Boyle Elisabeth Palm Registrar President