FIRST SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 32962/96

by Halil KIZILÖZ

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 June 1996 by Halil KIZILÖZ against Turkey and registered 13 September 1996 under file no. 32962/96;

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 12 December 1997 and the observations in reply submitted by the applicant on 26 January 1998;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Turkish citizen, born in 1957 and living in Ankara.

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

On 1 December 1980 police officers from the Ankara Security Directorate arrested the applicant in possession of false identity cards and weapons. The applicant was suspected of membership of an illegal organisation, the Dev-Yol (Revolutionary Way). He was then taken into police custody.

On 8 January and 25 December 1981 the applicant was questioned by police officers. He confessed that he was a member of the Dev-Yol and that he had been involved in its illegal activities. He stated that he was in charge of distributing leaflets and magazines, collecting money, providing accommodation and business premises to members of the organisation and producing false identity cards, driving licences and stamps for authentication of official documents. He further stated that he had taken part in a number of illegal demonstrations.     

On 23 March 1981 the applicant was brought before the Military Public Prosecutor. During his questioning by the Public Prosecutor he denied the allegation that he was a member of the Dev-Yol but admitted that he had produced false identity cards for himself.

On 15 November 1981 the Ankara Martial Law Court ( Sıkıyönetim Mahkemesi ) ordered the applicant’s detention on remand. During his questioning by the investigating judge the applicant denied that he was a member of the Dev-Yol but admitted that the weapons and bullets found in his possession belonged to him.

On 26 February 1982 the Military Public Prosecutor filed a bill of indictment with the Ankara Martial Law Court against the applicant and 723 other defendants. The Public Prosecutor accused the applicant of membership of the Dev-Yol , whose object was to undermine the constitutional order and replace it with a Marxist-Leninist regime. The Military Public Prosecutor further indicated the applicant’s involvement in the illegal activities of the Dev-Yol , such as providing accommodation and business premises to the members of the organisation, producing and using false identity cards, giving orders to the militants under his command and participating in illegal demonstrations. The Prosecutor called for the applicant to be sentenced pursuant to Article 168 § 1 of the Turkish Criminal Code ( Türk Ceza Kanunu ) and Article 17 of the Law no. 1402.

On 24 April 1985 the applicant was conditionally released pending trial.

After martial law was lifted on 19 July 1987, the Ankara Martial Law Court took the name of the Martial Law Court attached to the 4th Army Corps.

On an unspecified date the Martial Law Court convicted the applicant on account of his membership of the Dev-Yol . The court sentenced the applicant to 13 years and 4 months’ imprisonment and permanently debarred him from employment in public service in accordance with Article 168 § 1 of the Turkish Criminal Code and Article 17 of Law no. 1402. The court also decided to deduct from the applicant’s sentence the length of time he had spent in detention pending trial. The court held that the applicant’s own confessions and those of other defendants, expertise reports, false identity cards and weapons and bullets found in his possession grounded his conviction.

The applicant lodged an appeal with the Military Court of Cassation .

On 22 July 1991 the applicant was conditionally released pending trial in accordance with Law no. 3713 of 12 April 1991.

Following promulgation of the Law of 27 December 1993, 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 reviewed the decision of the Martial Law Court and reduced the applicant’s sentence to ten years’ imprisonment.

COMPLAINTS

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.

The applicant complains under Article 6 § 3 of the Convention that he was not informed promptly of the nature and cause of the accusation against him, that he did not have adequate time to prepare his defence and that it was impossible for him to examine witnesses against him.

The applicant complains under Articles 10 and 11 of the Convention that he was convicted on account of his political opinions.

PROCEDURE

The application was introduced on 25 June 1996 and registered on 13 September 1996.

On 2 July 1997 the Commission decided to communicate to the respondent Government the applicant’s complaints concerning the length and fairness of the criminal proceedings instituted against him, the independence and impartiality of the Martial Law Court and the interference with his freedom of expression and to declare inadmissible the remainder of the application.

The Government’s written observations were submitted on 28 July 1997, after an extension of the time-limit fixed for that purpose. The applicant replied on 26 February 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

A. Government’s preliminary objection

The Government submit that the applicant failed to exhaust domestic remedies without indicating which remedies were available to him.

The Court recalls 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).

In so far as the applicant’s complaints relate to the length of the criminal proceedings against him, the Court observes that the Government have not established the existence of any effective remedy in this connection.

As regards the applicant’s complaints concerning the independence and impartiality of the Martial Law Court, the Court observes that the competence of Martial Law Courts was explicitly provided for, until the legislation was modified on 27 December 1993, by the Code of Military Criminal Procedure (Act no. 353) and by section 23 of Act no. 1402 of 13 May 1971, the Martial Law Act. In this respect, the Court considers that, even supposing that the applicant lodged an appeal to the effect that he was not tried by an independent and impartial tribunal, any such appeal would have been doomed to failure.

The Court considers, therefore, that the Government’s submission that the applicant failed to exhaust domestic remedies cannot be upheld.

B. Merits

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 further complains that he was not informed promptly of the nature and cause of the accusation against him, that he did not have adequate time to prepare his defence and that it was impossible for him to examine witnesses against him. He invokes Article 6 §§ 1 and 3 of the Convention, which provides, in so far as relevant:

“1. 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...

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

(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

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

(d) to examine or have examined witnesses against him...”

The Government submit 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 one thousand loose-leaf binders and the summary of the judgment ran to no fewer than 264 pages.

As regards the independence and impartiality of the Martial Law Courts, the respondent Government submit that the two military and the two civilian judges sitting on the Martial Law Courts enjoy the guarantees of judicial independence and immunity laid down in the Constitution.

The applicant observes in reply that the criminal proceedings against him lasted for 16 years and that during this time 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 16 years. The applicant further alleges that during this period he suffered pecuniary and non-pecuniary damage.

The Court notes that the Government did not dispute the applicant’s allegations that he was not informed promptly of the nature and cause of the accusation against him, that he did not have adequate time to prepare his defence and that it was impossible for him to examine witnesses against him.

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 complains under Articles 10 and 11 of the Convention that he was convicted on account of his political opinions.

The Government contest the above complaints. They submit that at no stage before the domestic courts did the applicant rely on Articles 10 and 11 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 10 and 11 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 10 and 11 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 on account of his membership of an illegal organisation and 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 10 and 11 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,

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