FIRST SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 31961/96 by Metin ÅžAHÄ°N

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 7 June 1996 by Metin Åžahin against Turkey and registered on 18 Haziran 1996 under file no. 31961/96;

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 March 1998 and the observations in reply submitted by the applicant on 12 May 1998;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Turkish citizen, born in 1959 and lives in Ankara. He is represented before the Court by Mr Mehdi Bekta ÅŸ , a lawyer practising in Ankara.

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

On 19 December 1979 the applicant was taken into custody on suspicion of his membership of an illegal organisation, the Dev-Yol (Revolutionary Way).

On 24 September 1979 the Ankara Martial Law Court ordered the applicant’s detention on remand.

On 5 March 1980 the Military Public Prosecutor filed a bill of indictment with the Ankara Martial Law Court against the applicant. The Prosecutor accused the applicant of membership of an illegal organisation, the Ö .T.K., whose object was to undermine the constitutional order and replace it with a Marxist-Leninist regime. The Prosecutor pointed out the activities of the applicant in the Middle East Technical University, such as organising meetings and making propaganda on behalf of the organisation.

On 12 June 1980 the applicant was released.

On 26 September 1980 police officers arrested the applicant while he was being treated at Y.I’s house following his injury in the course of clashes which gave rise to the killing of M.V. and M.G.

On 1 February 1981 the applicant was questioned by the police officers from the Ankara Security Directorate. He confessed that he was an executive member of the Ö .T.K. and that he had been involved in its illegal activities in the Middle East Technical University, such as collecting money, making propaganda, hanging posters and distributing leaflets.

On 3 March 1981 the applicant was brought before the Military Public Prosecutor. During his questioning by the Prosecutor he denied the allegation that he was a member of the Dev-Yol but admitted that he had been involved in the activities of the Ö .T.K. The applicant also stated that following his release on 12 June 1980 two persons had shot him in the leg and, contrary to the allegations, he had not been involved in the killing of M.V. and his friends.

On 4 March 1981 the Ankara Martial Law Court ( Sıkıyönetim Mahkemesi ) ordered the applicant’s detention on remand. During h is questioning by the investigating judge the applicant denied that he was a member of the Dev-Yol and stated that statements he had made while in police custody were taken under duress.

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 . He further indicated the applicant’s involvement in the illegal activities of the Dev ‑ Yol , such as killing of M.V. and M.G., opening fire on S.D.’s house, hanging posters, distributing leaflets and collecting money for the organisation. It was decided that this indictment should be joined to the indictment of 5 March 1980.

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 c onvicted the applicant on account of his involvement in the killing of M.V. and M.G and his activities in the Ö .T.K . The court sentenced the applicant to 4 years 6 months’ imprisonment under Article 168 § 2 of the Turkish Criminal Code. The court also convicted the applicant on account of his involvement in the Dev-Yol . The court sentenced the applicant to lifetime imprisonment under Article 146 § 1 of the Turkish Criminal Code and permanently debarred him from employment in public service. It further 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 and his apprehension at the site of the crime constituted the basis of his conviction.

As the applicant was sentenced to a death penalty, his case was automatically transferred to the Military Court of Cassation ( Askeri Yarg ı tay ).

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”.

He maintains under the same head 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 7 June 1996 and registered on 18 June 1996.

On 22 October 1997 the Commission decided to communicate to the respondent Government the applicant’s complaints concerning the length of the criminal proceedings instituted against him and his right to a fair hearing and to declare the remainder of the application inadmissible.

The Government’s written observations were submitted on 13 March 1998. The applicant replied on 12 May 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”. 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...”

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 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 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 suffered pecuniary and non-pecuniary damage.

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 and the Military Public Prosecutor. They further submit that the applicant was apprehended while he was being treated at Y.I’s house following his injury in a clash which caused the killing of M.V. and M.G. In this regard, the Government assert that the courts had sufficient evidence to convict the applicant since he was apprehended at the site of the crime.

The applicant contends in reply that he was innocent of the crimes and 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;

DECLARES INADMISSIBLE the remainder of the application.

Michael O’Boyle Elisabeth Palm Registrar President