FIRST SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 33363/96 by Fikret DOÄžAN

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 27 June 1996 by Fikret DoÄŸan against Turkey and registered on 4 October 1996 under file no. 33363/96;

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 18 February 1998 and the observations in reply submitted by the applicant on 3 April 1998;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Turkish citizen, born in 1962 and lives in Ankara. He is represented before the Court by Mrs Canan Aydın , a lawyer practising in Ankara.

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

On 28 November 1980 the applicant was arrested by police officers from the Ankara Security Directorate on suspicion of his memb ership of an illegal organisation, the Dev-Yol (Revolutionary Way).

On 9 January 1981 the Ankara Martial Law Court ordered the applicant’s detention on remand.

On 25 December 1981 the applicant was questioned by the police officers. During his questioning he stated that he had been involved in the activities of the Dev-Yol . Thereafter, the police officers conducted searches in the areas indicated by the applicant. They found seven pistols, 10 boxes of bullets and several types of ammunition in the Çağlayan neighbourhood and the Kartaltepe-Kayalar region of Ankara. The ballistics and expertise reports indicated that these weapons had been used in numerous crimes, such as the killing of O.B., Ç.M. and C.D., an attempt to kill N.Y., opening fire on M.Ö., H.Ç. and K.A.’s houses, wounding several persons and also bomb attacks on A.O.A. and A.L.’s houses.

On an unspecified date the applicant was brought before the Military Public Prosecutor. During his questioning by the Public Prosecutor the applicant denied the allegations that he had been involved in the killing of several persons and the bomb attacks on several premises, but admitted his involvement 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 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. He alleged that the applicant had taken part in the killing of O.B.,  .M. and C.D., an attempt to kill N.Y. and bomb attacks on several premises. The Public Prosecutor called for the applicant to be sentenced pursuant to Article 146 § 1 of the Turkish Criminal Code.

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 28 November 1988 the applicant was conditionally released pending trial.

On 19 July 1989 the Martial Law Court convicted the applicant on account of his membership of the Dev-Yol , the killing of O.B., Ç.M. and C.D., an attempt to kill N.Y., opening fire on M.Ö., H.Ç. and K.A.’s houses, attacks on several persons and also bomb attacks on A.O.A. and A.L.’s houses. The court acquitted the applicant of three other crimes with which he had been charged. The court sentenced the applicant to lifetime imprisonment under Article 146 § 1 of the Turkish Criminal Code. It held that the applicant’s confessions at the Security Directorate, before the Military Public Prosecutor and during the trials, the weapons found in the premises indicated by him, the ballistics and expertise reports confirming his use of those weapons in the killing and wounding of several persons and the evidence given by other defendants as well as witnesses constituted the basis of his conviction and sentence.

As the applicant was sentenced to lifetime imprisonment, his case was automatically transferred to the Military Court of Cassation ( Askeri Yargıtay ).

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 28 December 1995 the Court of Cassation 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 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.

PROCEDURE

The application was introduced on 27 June 1996 and registered on 18 October 1999.

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 18 February 1998. The applicant replied on 16 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 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 cases 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 to be 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 memorial.

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 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 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 applicant had confessed before the Public Prosecutor that he was a member of the Dev-Yol and furthermore the police officers found a number of weapons and ammunition in the premises indicated by the applicant. The ballistics reports indicated that these weapons had been used by the applicant in a number of cases. In this respect, the Government allege that the courts had sufficient evidence to establish the applicant’s guilt.

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 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,

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