FIRST SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 33370/96 by Arap YALGIN and others

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 17 June 1996 by Arap Yalgın , Mehmet Murat Öner , Muhtat Karakoca against Turkey and registered on 4 October 1996 under file no. 33370/96;

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 13 February 1998 and the observations in reply submitted by the applicant on 19 March 1998;

Having deliberated;

Decides as follows:

THE FACTS

The applicants, Arap Yalgın , Muthat Karakoca and Mehmet Murat Öner , are all Turkish citizens, born in 1963, 1958 and 1954 respectively and living in Ankara. They are represented before the Court by Mrs Oya Ataman , a lawyer practising in Ankara.

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

Case of Muhtat Karakoca

On 20 November 1980 police officers from the Ankara Security Directorate arrested the applicant in Bingöl in possession of false identity cards. The applicant was suspected of membership of an illegal organisation, the Dev-Yol (Revolutionary Way). He was then taken into police custody in Ankara.

On an unspecified date the applicant was questioned by the police officers. He confessed that he was a member of the Dev-Yol and that he had been involved in the killing of F.Ş., the bomb attack on A.K.’s store and setting B.D.’s car on fire.

On 14 September 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 . The applicant furthermore told the Prosecutor that he was blindfolded when he signed his statement in police custody.

On 19 October 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. The 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 killings, bomb attacks, producing and using false identity cards and carrying unlicensed guns. The Prosecutor called for the applicant to be sentenced pursuant to Articles 450 § 9, 463, 141 § 5, 146 § 3, 264 § 5-6-7, 516 § 7 and 351 of the Turkish Criminal Code ( Türk Ceza Kanunu ) and Article 13 of Law no. 6136.

On 16 June 1986 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 19 July 1989 the Martial Law Court convicted the applicant on account of his membership of the Dev-Yol . The court sentenced the applicant to 7 years’ imprisonment under Article 146 § 3 of the Turkish Criminal Code, permanently debarred him from employment in public service and placed him under judicial guardianship. The court also decided to deduct from his 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, false identity cards found in his possession and other relevant documentary evidence constituted the grounds for his conviction and sentence.

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

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.

Case of Mehmet Murat Öner

On 12 December 1980 police officers from the Ankara Security Directorate arrested the applicant. The applicant was suspected of membership of an illegal organisation, the Dev ‑ Yol . He was then taken into police custody.

On 14 December 1980 the applicant was questioned by the police officers. He confessed that he was a member of the Dev-Yol and that he had been involved in its illegal activities.

On 27 January 1981 the Ankara Martial Law Court ordered the applicant’s detention on remand. During his questioning by the investigating judge he denied the allegations concerning his involvement in activities of the Dev-Yol .

On 19 February and 17 November 1981 the Military Public Prosecutor questioned the applicant. During his questioning he again denied the allegation that he had been involved in the Dev-Yol .

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 . He further indicated the applicant’s involvement in the illegal activities of the Dev-Yol , such as producing false identity cards, hanging posters and collecting money for the organisation. The prosecutor called for the applicant to be sentenced pursuant to Articles 146 § 3 and 168 § 2 of the Turkish Criminal Code and Article 17 of Law no. 1402.

On 1 February 1983 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 19 July 1989 the Martial Law Court convicted the applicant on account of his membership of the Dev-Yol . The court sentenced the applicant to five years, six months and twenty days’ imprisonment under Article 168 § 2 of the Turkish Criminal Code, permanently debarred him from employment in public service and placed him under judicial guardianship. The court held that the evidence given by several witnesses, the applicant’s statements during the trials, false identity cards and false seals of public institutions found in his possession and other relevant documentary evidence constituted the grounds for his conviction.

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

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 quashed the applicant’s conviction. It held that the criminal proceedings against the applicant should be discontinued since the prosecution was time-barred.

Case of Arap Yalgın

On 6 March 1981 gendarmes arrested the applicant in possession of a pistol in Ak  alı village of the Sungurlu district. He was suspected of membership of an illegal organisation, the Dev-Yol (Revolutionary Way). He was then taken into police custody in Ankara.

On 5 April 1981 the applicant was questioned by the police officers. He confessed that he was a member of the Dev-Yol and that he had been involved in its illegal activities. In the light of his confessions, the police officers conducted searches in the areas indicated by the applicant. They found  several types of pistols and bullets.

On 7 May 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 . He alleged that his statements at the Security Directorate had been taken under duress.

On 11 May 1981 the Ankara Martial Law Court ordered the applicant’s release pending trial.

On 26 February 1982 the Military Public Prosecutor filed a bill of indictment with the Ankara Martial Law Court against the applicant along and 723 other defendants. The Public Prosecutor accused the applicant of membership of the Dev-Yol . The Military Public Prosecutor further indicated the applicant’s involvement in the illegal activities of the Dev ‑ Yol , such as opening fire on O.Y.’s house, hiding weapons, hanging posters and collecting money for the organisation. The Prosecutor called for the applicant to be sentenced pursuant to Article 146 § 3 of the Turkish Criminal Code ( Türk Ceza Kanunu ) and Article 17 of Law no. 1402.

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 and opening fire on O.Y.’s house. The court sentenced the applicant to 6 years and 8 months’ imprisonment under Article 146 § 3 of the Turkish Criminal Code, permanently debarred him from employment in public service and placed him under judicial guardianship. The court held that the evidence given by several witnesses, the applicant’s own confessions and those of other defendants, the weapons found in the applicant’s possession and other relevant documentary evidence constituted the basis of his conviction.

The applicant lodged an appeal with the Military Court of Cassation . Following promulgation of the Law of 27 December 1993, which abolished the jurisdiction of the martial law courts, the Court of Cassation acquired jurisdiction over the case and the case file was sent to it.

On 27 December 1995 the Court of Cassation quashed the Martial Law Court’s judgment on the ground that the latter had misinterpreted the relevant domestic law. It revised the applicant’s case and sentenced the applicant to five years’ imprisonment.

COMPLAINTS

The applicants complain under Article 6 § 1 of the Convention that the criminal proceedings brought against them were not concluded within a “reasonable time”.

The applicants Muhtat Karakoca and Arap Yalgın further complain under Article 6 § 1 of the Convention that their right to a fair hearing was breached since they were tried by the Martial Law Court which lacked independence and impartiality. They maintain that they were convicted on the basis of statements they had made to the police under duress.

PROCEDURE

The application was introduced on 17 June 1996 and registered on 4 October 1996.

On 11 September 1997 the Commission decided to communicate to t he respondent Government the applicants’ complaints concerning the length of criminal proceedings instituted against them and the applicants Muhtat Karakoca and Arap Yalgın’s complaints concerning their right to a fair trial by an independent and impartial tribunal and to declare the remainder of the application inadmissible.

The Government’s written observations were submitted on 13 February 1998. The applicant replied on 17 March 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 applicants complain that the criminal proceedings brought against them were not concluded within a “reasonable time”. The applicants Muhtat Karakoca and Arap Yalgın further complain that their right to a fair hearing was breached since they were tried by the Martial Law Court, which lacked independence and impartiality. They invoke 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 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. 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 applicants observe in reply that the criminal proceedings against them lasted for 15 years and that during this time the courts were unable to deliver a final judgment on their cases. The complexity of the cases and the large number of defendants cannot justify the length of the proceedings which lasted 15 years. The applicants submit that their cases were referred to the Court of Cassation 5 years after the Martial Law Court had delivered its judgment. They also submit that it took the Court of Cassation 6 years to deliver its final judgment on their cases. The applicants furthermore allege that during this period they suffered pecuniary and non-pecuniary damage.

The applicants also allege that their right to fair hearing by an independent and impartial tribunal was breached since they 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 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 applicants Muhtat Karakoca and Arap Yalgın 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 Government refute the applicants’ allegations. They claim that the statements made by the applicants during their pre-trial detention were not the sole ground for their convictions. They maintain that the courts relied on the applicants’ confessions during the trials, false identity cards found in Muhtat Karakoca’s possession and weapons found in Arap Yalgın’s possession. In this respect, they assert that the courts had sufficient evidence to establish the applicants’ guilt.

The applicants contend in reply that there was no evidence to ground their convictions other than the statements they 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 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 any indication 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 form to the Commission the details of the alleged duress during their pre-trial detention. It is also to be noted that they have not adduced any concrete evidence 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 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,

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

DECLARES ADMISSIBLE , without prejudging the merits, the applicants’ complaints concerning the length of the criminal proceedings instituted against them and the applicants Muhtat Karakoca and Arap Yalgın’s further complaints concerning their right to a fair hearing by an independent and impartial tribunal;

DECLARES INADMISSIBLE the remainder of the application.

Michael O’Boyle Elisabeth Palm Registrar President