FIRST SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 31879/96 [*] by Şaban DEĞİRMENCİ and 38 others against Turkey

The European Court of Human Rights ( First Section ) sitting on 16 November 1999 as a Chamber composed of

Mrs E. Palm, President , Mr J. Casadevall, Mr Gaukur Jörundsson, Mr R. Türmen, Mr C. Bîrsan, Mrs W. Thomassen, Mr R. Maruste, judges ,

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 May 1996 by Åžaban DeÄŸirmenci And 38 Others against Turkey and registered on 13 June 1996 under file no. 31879/96;

Having regard to the report provided for in Rule 49 of the Rules of Court;

Having deliberated;

Decides as follows:

THE FACTS

The applicants, whose names appear in the appended list, are Turkish national s . They are represented before the Court by Mr Åženal SARIHAN, a lawyer practising in Ankara (Turkey).

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

The applicants, accused of being members of the illegal organisation Dev-Yol (Revolutionary Way) were kept in police custody in Ankara between the dates listed below and were placed in detention on remand upon a decision of the Ankara Martial Law Court.

Name of the applicant

Period of Police Custody

End of detention on remand

1) Fikri Tamkoç

02.03.1981 - 21.04.1981

24.03.1986

2) Halil Kızılöz

01.12.1980 - 06.02.1981

24.04.1985

3) Mehmet Baha Çetintaş

05.02.1981 - 15.05.1981

currently detained

4) Yılmaz Ergül

17.07.1980 - 08.08.1980

currently detained

5) Ä°brahim Arslan

09.07.1981 - 17.09.1981

currently detained

6) Ercan UÄŸur

18.08.1981 - 02.09.1981

19.01.1987

7) İsmail Tayfun Üstün

27.12.1980 - 04.03.1981

11.11.1987

8) Abdullah Evcil

09.04.1981 - 09.06.1981

currently detained

9) Abdullah Şengörenoğlu

06.12.1980 - 04.02.1981

currently detained

10) İsmail Tümay

12.12.1980 - 04.02.1981

currently detained

11) Ziya Uncu

24.11.1980 - 20.02.1981

24.03.1986

12) Mehmet Ãœresin

17.07.1980 - 08.08.1980

currently detained

13) Naci Zaman

17.09.1980 - 31.10.1980

currently detained

14) Özgür Ovacık

24.09.1980 - 31.10.1980

currently detained

15) Kemal Elhan

27.10.1978 - 27.11.1978

16.06.1986

16) Murat Parlakay

23.11.1980 - 27.01.1981

14.12.1988

17) Celal Mut

01.10.1980 - 14.11.1980

14.12.1988

18) Mehmet Hassoy

24.01.1981 - 15.04.1981

14.12.1988

19) Åžaban DeÄŸirmenci

17.02.1981 - 04.05.1981

25.03.1986

20) Bedia Zehra Torun

22.01.1981 - 15.04.1981

06.06.1984

21) Arif Kandemir

10.09.1981 - 19.10.1981

31.12.1983

22) Nejdet Özen

11.04.1981 - 09.06.1981

21.03.1984

23) Metin Bakkalcı

08.10.1980 - 31.10.1980

17.12.1985

24) Lütfi Doğan Tılıç

20.04.1981 - 10.06.1981

26.11.1983

25) Hürriyet Eğer

02.09.1979 - 19.09.1979

23.04.1981 - 25.06.1981

04.03.1980

17.12.1985

26) Esma Güzel

09.12.1980 - 27.01.1981

31.12.1981

27) Tuncay Kara

24.11.1980 - 24.12.1980

24.02.1983

28)Ali Özkan Çakırlar

01.12.1980 - 06.02.1981

31.12.1983

29) Ertuğrul Özbek

31.08.1980 - 18.09.1980

04.10.1984

30) Mehmet Åžahin

04.09.1980 - 18.09.1980

04.10.1984

31) Mehmet Akif Aküzüm

31.10.1980 - 27.01.1981

31.12.1983

32) Mehmet Nuri Sarpkaya

11.11.1980 - 27.01.1981

04.02.1984

33) Abdülrezzak Erten

29.10.1980 - 27.01.1981

15.09.1983

34) Burhan Çam

07.11.1980 - 04.02.1981

26.02.1985

35) Hacı Badem

09.09.1980 - 13.10.1980

19.01.1987

36) Sami AltuntaÅŸ

29.10.1980 - 26.11.1980

11.06.1983

37) Ahter Yıldız

12.07.1981 - 04.09.1981

15.10.1983

38) Recai Kireç

07.09.1979 - 24.09.1979

26.12.1979

39) Halil UlutaÅŸ

21.09.1984 - 06.11.1984

19.03.1985

On 26 February 1982 the Military Public Prosecutor instituted criminal proceedings against altogether 723 defendants including the present applicants.

It was alleged that the applicants were members of an illegal organisation whose aim was to undermine the constitutional order and replace it with a Marxist-Leninist regime. The prosecution called for the applicants to be sentenced pursuant to Sections 146 and 168 of the Turkish Criminal Code.

During the court hearings, the applicants denied the statements they had made to the police and alleged that these had been given under duress.

Some of the applicants were released pending trial as indicated in the above table.

On 19 July 1989 the Ankara Martial Law Court found the applicants guilty as charged and sentenced them to various terms of imprisonment.

Following the applicant’s appeal the case was referred to the Military Court of Cassation . Pursuant to the law promulgated on 27 December 1993, the case-file was transferred to a non-military court, namely, the Court of Cassation .

On 27 December 1995 the Court of Cassation decided

- to uphold the judgment of the first-instance court as regards 13 of the applicants ( Baha Çetintaş , Yılmaz Ergül , Mehmet Üresin , İbrahim Arslan , Tayfun Üstün , Abdullah Evcil , Kemal Elhan , Ercan Uğur , Naci Zaman , Özgür Ovacık , Abdullah Şengörenoğlu , İsmail Tümay , Ziya Uncu ),

- to quash the judgment of the first-instance court on the ground that the court had failed to apply the legal provisions relevant to the crime in question, as regards 3 of the applicants ( Murat Parlakay , Celal Mut , Mehmet Hassoy ) and to transfer the case to the first instance court,

- to quash the judgment without remitting the case back to the first-instance court as regards 9 of the applicants ( Arif Kandemir , Hürriyet Eğer , Nejdet Özen , Lütfi Doğan Tılıç , Bedia Zehra Torun , Fikri Tamkoç , Halil Kızılöz , Metin Bakkalcı , Şaban Değirmenci ). Accordingly, it revised the judgment as regards the above-mentioned applicants and finally sentenced the applicants to various terms of imprisonment.

As regards 14 of the applicants ( Tuncay Kara, Ertuğrul Özbek , Mehmet Şahin , Burhan Çam , Esma Güzel , Ali Özkan Çakırlar , Mehmet Akif Aküzüm , Mehmet Nuri Sarpkaya , Abdülrezzak Erten , Hacı Badem , Sami Altıntaş , Ahter Yıldız , Recai Kireç , Halil Ulutaş ), the Court of Cassation ordered that the criminal proceedings be terminated on the ground that the statutory time-limit under Section 102 had expired.

COMPLAINTS

1) The applicants complain under Article 3 of the Convention that they had been subjected to various forms of ill-treatment during their police custody. They claim to have been suspended from their arms, given electric shocks, beaten with truncheons on the soles of their feet, verbally abused, hosed with cold water and denied food and liquids.

2) The applicants further complain about the excessive length of their police custody. They invoke Article 5 § 3 of the Convention.

3) The applicants allege that they did not have a fair trial before the national courts in that their case was not heard by an independent and impartial tribunal, that the courts based their judgments on statements taken by the police under duress, and that they did not have adequate time for preparation of their defence.

4) The applicants allege that the criminal proceedings brought against them were not concluded within a reasonable time as required by Article 6 of the Convention.

THE LAW

A. AS REGARDS THE FIRST TWO APPLICANTS:

As regards the first two applicants, Fikri Tamkoç and Halil Kızılöz , the Court notes that the facts and the complaints they allege are the same as those already submitted in applications No. 31881/96 for Fikri Tamkoç and in 32962/96 for Halil Kızılöz , which were communicated to the respondent Government on 2 July 1997 by a partial decision of the Commission. As the present applications do not submit any new information, the Court considers that the applications as regards these two applicants should be dismissed in accordance with Article 35 § 2 (b) of the Convention.

B. AS REGARDS THE REST OF THE APPLICANTS:

1) The applicants complain under Article 3 of the Convention that they had been subjected to various forms of ill-treatment during their police custody. They claim to have been suspended from their arms, given electric shocks, beaten with truncheons on the soles of their feet, verbally abused, hosed with cold water and denied food and liquids.

The Court notes that the police custody of the applicants ended on various days between 1978 and 1984.

The Court recalls that according to the Turkish Government’s declaration made on 28 January 1987, pursuant to Article 25 of the Convention, the Court’s competence to examine individual petitions extends only to facts and judgments based on events occurring after that date. The Court notes that the above complaint concerns a period prior to 28 January 1987.

Consequently, this part of the application is outside the competence of the Court ratione temporis and must accordingly be rejected as incompatible with the provisions of the Convention, within the meaning of Article 35 of the Convention.

2) The applicants further complain about the excessive length of their police custody. They invoke Article 5 § 3 of the Convention.

The Court notes that the applicants’ police custody ended on various days between 1978 and 1984.

The Court recalls that according to the Turkish Government’s declaration made on 28 January 1987, pursuant to Article 25 of the Convention, the Commission’s competence to examine individual petitions extends only to facts and judgments based on events occurring after that date. The Court notes that, on the assumption that its own competence is governed by this declaration, the above complaint concerns a period prior to 28 January 1987.

Consequently, this part of the application is outside the competence of the Court ratione temporis and must accordingly be rejected as incompatible with the provisions of the Convention, within the meaning of Article 35 of the Convention.

3) The applicants allege that their case was not heard by an independent and impartial tribunal. They also submit that they did not have a fair trial before the national courts in that the courts based their judgments on statements they had given to the police under duress and that they did not have adequate time for preparation of their defence.

The Court notes that the charges against 14 applicants, whose names are indicated in the above table (Nos. 26-39), were withdrawn on the ground that the statutory time-limit had expired.

The Court recalls that the withdrawal of criminal proceedings instituted against the applicants constitutes redress of the violations, which would have infringed their rights under the Convention (No. 5575/72, Dec. 8.7.1974, D.R.1, p. 44 and Cankoçak v. Turkey, Nos. 25182/94 and 26956/95 partially inadmissible on the same ground).

Accordingly these 14 applicants can no longer claim to be victims of a violation in respect of these matters and these complaints must be dismissed as manifestly ill-founded within the meaning of Article 35 of the Convention.

However, for the remaining 23 applicants (Nos. 3-25), the Court considers that it cannot, on the basis of the file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 3(b) of the Rules of Procedure, to give notice of them to the respondent Government.

4) The applicants allege that the criminal proceedings brought against them were not concluded within a reasonable time as required by Article 6 of the Convention.

The Court considers that it cannot, on the basis of the file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 3(b) of the Rules of Procedure, to give notice of it to the respondent Government.

For these reasons, the Court, unanimously,

DECIDES TO DISMISS the examination of the case as regards the applicants, Fikri              Tamkoç and Halil Kızılöz ,

DECIDES TO ADJOURN the examination of the complaints as to the length of proceedings for all of the applicants (nos. 3-39) and as regards the fairness of proceedings for applicants Nos. 3-25 only,

DECLARES INADMISSIBLE the remainder of the application for all of the applicants.

Michael O’Boyle Elisabeth Palm Registrar President

APPENDIX

LIST OF APPLICANTS

1) Fikri Tamkoç , who was born in 1952, resides in Ankara.

2) Halil Kızılöz , who was born in 1957, resides in Ankara

3) Mehmet Baha Çetintaş , who was born in 1950, resides in İstanbul

4) Yılmaz Ergül , who was born in 1957, resides in Bursa

5) Ä°brahim Arslan , who was born in 1955, resides in Samsun

6) Ercan UÄŸur , who was born in 1958, resides in Ankara

7) İsmail Tayfun Üstün , who was born in 1957, resides in Ankara

8) Abdullah Evcil , who was born in 1955, resides in Ankara

9) Abdullah Şengörenoğlu , who was born in 1955, resides in Ankara

10) İsmail Tümay , who was born in 1959, resides in Çanakkale

11) Ziya Uncu , who was born in 1957, resides in Bilecik

12) Mehmet Ãœresin , who was born in 1952, resides in Tarsus.

13) Naci Zaman , who was born in 1960, resides in Ankara

14) Özgür Ovacık , who was born in 1960, resides in Ankara

15) Kemal Elhan , who was born in 1959, resides in Ankara

16) Murat Parlakay , who was born in 1957, resides in Ankara

17) Celal Mut , who was born in 1956, resides in Ankara

18) Mehmet Hassoy , who was born in 1957, resides in Ä°zmir

19) Şaban Değirmenci , who was born in 1956, resides in Balıkesir .

20) Bedia Zehra Torun , who was born in 1957, resides in Ankara

21) Arif Kandemir , who was born in 1954, resides in Ankara

22) Nejdet Özen , who was born in 1957, resides in Ankara

23) Metin Bakkalcı , who was born in 1956, resides in İzmir

24) Lütfi Doğan Tılıç , who was born in 1960, resides in Ankara

25) Hürriyet Eğer , who was born in 1959, resides in Ankara

26) Esma Güzel , who was born in 1951, resides in Ankara

27) Tuncay Kara, who was born in 1963, resides in Ankara

28)Ali Özkan Çakırlar , who was born in 1959, resides in Ankara

29) Ertuğrul Özbek , who was born in 1962, resides in Ankara

30) Mehmet Åžahin , who was born in 1959, resides in Ankara

31) Mehmet Akif Aküzüm , who was born in 1956, resides in Ankara

32) Mehmet Nuri Sarpkaya , who was born in 1954, resides in Ankara

33) Abdülrezzak Erten , who was born in 1953, resides in Ankara

34) Burhan Çam , who was born in 1958, resides in Ankara

35) Hacı Badem , who was born in 1955, resides in Ankara

36) Sami AltuntaÅŸ , who was born in 1956, resides in Ankara

37) Ahter Yıldız , who was born in 1960, resides in Ankara

38) Recai Kireç , who was born in 1963, resides in Ankara

39) Halil UlutaÅŸ , who was born in 1960, resides in Manisa

[*]  See annex for a list of the applicants