FIRST SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 31893/96 by Tevfik GÃœNEÅž

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 21 May 1996 by Mustafa Yalgın against Turkey and registered on 13 June 1996 under file no. 31893/96;

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 6 February 1998;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Turkish citizen, born in 1961 and living in Ankara. He is represented before the Court by Mrs Oya Ersoy Ataman , a lawyer practising in Ankara.

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

On 6 March 1981 the applicant was arrested by police officers from the Ankara Security Directorate on suspicion of his membership of an illegal organisation, the Dev-Yol (Revolutionary Way).

On 7 March 1981 the police officers conducted a search in a vacant area indicated by the applicant in Ankara. They found two pistols, several bullets and cartridge clips.

On 28 March 1981 the applicant was questioned by the police officers at the Ankara Security Directorate where he confessed that he had been involved in the activities of the Dev-Yol .

On 14 October and 16 December 1982 the applicant was questioned by the Ankara Military Public Prosecutor. The applicant denied the allegations against him and stated that he had not been involved in any activity of the Dev-Yol .

On 11 May 1981 the applicant was detained on remand by the Ankara Martial Law Court ( Sıkıyönetim Mahkemesi ). During his questioning by the investigating judge 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. 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 collection of money for expenditures of the organisation, making propaganda for the organisation by way of publications and distributing leaflets, hiding weapons for the organisation and giving orders to the militants under his command. The Public Prosecutor pointed out that the applicant had been involved in a number of violent acts such as killings, attacks and bombings. The prosecutor called for the applicant to be sentenced pursuant to Article 146 of the Turkish Criminal Code ( Türk Ceza Kanunu ).

At a hearing on 21 October 1988 the applicant denied the allegations against him. He alleged that the charges against him were based on statements he had made to the police officers under duress.

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 19 July 1989 the Martial Law Court convicted the applicant on account of his membership of the Dev-Yol , his involvement in the killing of B.B. and bomb attacks and acting as an armed look-out and opening fire on a grocery shop. The court acquitted the applicant of six other crimes with which he had been charged. The court sentenced the applicant to life imprisonment pursuant to Article 146 § 1 of the Turkish Criminal Code, permanently debarred him from employment in public service and placed him under judicial guardianship during his imprisonment. The court also decided to deduct from his sentence the length of time he had spent in detention pending trial. 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 weapons found in the applicant’s possession, his statements at the Security Directorate, before the Public Prosecutor and the courts, the evidence given by the defendants, H.Y., A.Y., N.A., H.K. , A.A.D. and M.S. , who had admitted before the court the applicant’s role in the offences committed by the militants of the Dev-Yol . The court had also regard to the expertise and ballistics reports which confirmed the use of several weapons by the applicant.

As the applicant’s sentence exceeded 15 years’ imprisonment, his case was automatically transferred to the Military Court of Cassation ( Askeri Yarg ı tay ).

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 upheld the Martial Law Court’s judgment.

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 also complains under Article 6 § 1 of the Convention that his conviction was based on statements he had made to the police under duress.

PROCEDURE

The application was introduced on 21 May 1996 and registered on 13 June 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 and his complaint concerning the independence and impartiality of the Martial Law Court and to declare the remainder of the application inadmissible.

The Government’s written observations were submitted on 8 December 1997. The applicant replied on 6 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 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).

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 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 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 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 11 crimes and was convicted of engaging in grave crimes as one of the members of an illegal armed organisation. 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 the criminal proceedings against him lasted for 15 years and that during this time the courts were unable to deliver a final judgment on his case. He maintains that his case was referred to the Court of Cassation 5 years after the Martial Law Court had delivered its judgment and that it took the Court of Cassation 6 years to give the final judgment. 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 suffered pecuniary and non-pecuniary damage.

The applicant also asserts 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 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 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 statements 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 there was no evidence to ground his conviction other than the statement 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 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.

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