FIRST SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 29279/95 by Ä°smail ÅžAHÄ°NER against Turkey

The European Court of Human Rights ( First Section ) sitting on 11 January 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 Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 25 August 1995 by Ä°smail Åžahiner against Turkey and registered on 16 November 1995 under file no. 29279/95;

Having regard to the reports provided for in Rule 49 of the Rules of Court;

Having regard to the observations submitted by the respondent Government on 21 November 1997 and the observations in reply submitted by the applicant on 13 January 1998;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Turkish national, born in 1957 and living in Ankara. He is represented before the Court by Mr Ali Kalan , a lawyer practising in Ankara.

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

On 29 November 1980 the applicant was arrested by police officers on suspicion of his membership of an illegal organisation, the Dev-Yol (Revolutionary Way).

On 30 November 1980 the police officers conducted a search in a house indicated by the applicant in the Gültepe neighbourhood of Ankara. They found 2 pistols, 3 cartridge clips and 13 bullets.

On 26 January 1981 the Ankara Martial Law Court ( sıkıyönetim mahkemesi ) ordered the applicant’s detention on remand.

On 14 October 1981 the applicant stated to the police officers that he had been involved in the illegal activities of the Dev-Yol . However, during his questioning by the Public Prosecutor and at the court hearings, he denied the statements he had made to the police officers. He alleged that he had made those statements under duress.

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 , 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. The Public Prosecutor further alleged, inter alia , that the applicant had been involved in a number of crimes such as the killing of A.Ö. and M.B. , a bomb attack on a coffee house, acting as an armed look-out and opening fire on a house.

On 23 July 1991 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 of membership of the Dev-Yol , the murder of A.Ö., the bombing of a coffee house and acting as an armed look-out for the killers of H.I.B. and M.B. It sentenced the applicant to life imprisonment and debarred him from employment in the civil service. The court held that although the applicant had denied the statements he had made to the police, the testimonies of other accused had corroborated his actions. The court relied in particular on the following evidence in its judgment: the applicant’s statements made at the police station, before the Public Prosecutor and the court; some documentary evidence and the evidence given by the witnesses H.Y.D., R.M., O.M.K., A.E. , E.E. , A.K., E.K., D.S., S.D., T.K., R.K., V.K., V.Y. and M.A. The court also noted that 2 pistols, 3 cartridge clips and 13 bullets had been found in the applicant’s possession. It further noted that the applicant had confessed before the court that he had used those weapons in numerous illegal activities and that the ballistics report had confirmed their use by the applicant.

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

COMPLAINTS

1. The applicant complains under Article 6 § 1 of the Convention that the criminal proceedings brought against him were not concluded within a “reasonable time” and that his right to a fair hearing was breached as he was tried by the Martial Law Court which lacked independence and impartiality.

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

3. The applicant submits that his conviction on account of his political opinions constituted a violation of his rights enshrined in Articles 9 and 10 of the Convention, notably his right to freedom of thought and expression.

PROCEDURE

The application was introduced on 25 August 1995 and registered on 16 November 1995.

On 2 July 1997 the Commission decided to communicate the applicant’s complaints concerning the length and fairness of the criminal proceedings brought against him and his right to freedom of thought and expression, and to declare inadmissible the remainder of the application.

The Government’s written observations were submitted on 21 November 1997. The applicant replied on 13 January 1998.

On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol.

THE LAW

1 . The applicant complains that the criminal proceedings brought against him were not concluded within a “reasonable time” and that his right to a fair hearing was breached as he was tried by the Martial Law Court which lacked independence and impartiality. He invokes Article 6 § 1 of the Convention which provides, in so far as relevant:

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

The Government point out that pursuant to former Article 25 of the Convention Turkey has accepted the competence of the Commission to examine individual petitions only in respect of facts or events that have occurred since 28 January 1987. On that account this part of the application should be declared inadmissible.

It is to be noted at the outset that on 1 November 1998 , by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol. It further notes in this respect that the Commission’s competence ratione temporis began on 28 January 1987, the date on which Turkey’s declaration accepting the right of individual petition came into force. Turkey accepted the former Court’s jurisdiction ratione temporis as of 22 January 1990. The question therefore arises whether the Court should be considered competent as from 28 January 1987 or 22 January 1990 to deal with each of the complaints submitted . The Court considers it appropriate in the circumstances of the present case to join this question to the merits as the parties have not had an opportunity to address it in their observations.

As regards the merits of the case, the Government claim that the length of the criminal proceedings brought against the applicant 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 applicant was charged. They maintain that the courts dealt with a trial involving 723 defendants, including the applicant, 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. Between 18 October 1982 and 19 July 1989 it held 512 hearings, at a rate of 3 per week. The investigation, during which all the accused were questioned, lasted 5 years. The Public Prosecutor, to whom the file was sent on 11 November 1987, was not able to complete his 1,766 pages of written submissions before 23 March 1988. The oral hearings, which began on 11 May 1988, lasted 10 months. Lastly, the file comprised approximately 1,000 loose-leaf binders and the summary of the judgment ran to no fewer than 264 pages.

The Government also point out that the applicant was charged with more than 20 crimes and was 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 applicant observes in reply that he was held in detention on remand for 10 years and that for 15 years the courts were unable to deliver a final judgment on his case. The complexity of the case and the large number of defendants cannot justify the length of the proceedings which lasted 15 years. The applicant further alleges that during this period he could not find a job and that he suffered pecuniary and non-pecuniary damage.

The applicant also submits that his right to a fair hearing by an independent and impartial tribunal was breached as he was 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.

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 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 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 as well as the applicant’s own confessions before the courts. They further submit that the courts had regard to other relevant evidence, notably the weapons found in the applicant’s possession and ballistics and expertise reports confirming his use of those weapons.

The applicant contends in reply that he was acquitted of most of the crimes with which he had been charged. He submits 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 any indication to the national courts 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, such as a medical certificate, 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.

3 . The applicant submits that his conviction on account of his political opinions constituted a violation of his rights enshrined in Articles 9 and 10 of the Convention, notably his right to freedom of thought and expression.

The Government contest the above complaints. They submit that at no stage before the domestic courts did the applicant rely on Articles 9 and 10 of the Convention, or on arguments to the same or like effect based on domestic law. They point out that the applicant has sufficient guarantees under domestic law for the protection of his rights guaranteed under Articles 9 and 10 of the Convention. They contend therefore that this part of the application should be declared inadmissible on account of the applicant’s failure to exhaust domestic remedies, as required by Article 35 § 1 of the Convention.

In the instant case, the question whether or not the applicant has exhausted domestic remedies may be left open, since this part of the application must in any event be rejected for the following reasons.

In this connection, the Court points out that in order to determine whether the applicant’s rights under Articles 9 and 10 of the Convention were breached it must first be ascertained whether the conviction in question amounted to an interference with the exercise of those rights by the applicant (see the Kosiek v. Germany judgment of 28 August 1986, Series A no. 105, p. 20, § 36).

The Court notes that the Turkish courts convicted the applicant of his membership of an illegal organisation, of murder and of his involvement in a number of illegal activities. It appears therefore that the applicant was not convicted on account of his political opinions. Nor was he prohibited from receiving and imparting such opinions. The Court therefore considers that there has been no interference with the applicant’s rights protected by Articles 9 and 10 of the Convention and accordingly no question arises as to the possible justification for such interference under paragraph 2 of those provisions.

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

For these reasons, the Court, unanimously,

DECIDES TO JOIN TO THE MERITS the question concerning its jurisdiction ratione temporis ;

DECLARES ADMISSIBLE , without prejudging the merits, the applicant’s complaints concerning his right to a fair hearing within a reasonable time by an independent and impartial tribunal;

DECLARES INADMISSIBLE the remainder of the application.

Michael O’Boyle Elisabeth Palm Registrar President