RESOLUTION DH (98) 82

HUMAN RIGHTS

APPLICATIONS Nos. 15530/89 AND 15531/89

MITAP AND MÃœFTÃœO_LU AGAINST TURKEY

(Adopted by the Committee of Ministers on 22 April 1998

at the 626th meeting of the Ministers’ Deputies)

The Committee of Ministers, under the terms of Article 32 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as “the Convention”),

Having regard to the report drawn up on 8 December 1994, by the European Commission of Human Rights in accordance with Article 31 of the Convention relating to the applications lodged on 14 September 1989 by Mr Nasup Mitap and Mr Abdullah O_uzhan Müftüo_lu against Turkey;                          

Whereas in their applications, declared admissible by the Commission on 10 October 1991, the applicants complained of the excessive length of their detention on remand and of the subsequent criminal proceedings before the Martial Law Court, notably as regards the length and fairness of the proceedings and the lawfulness, independence and impartiality of the court;

Whereas in its report the Commission expressed, unanimously, the opinion that there had been a violation of Article 5, paragraph 3, of the Convention, as regards the length of detention on remand; that there had been a violation of Article 6, paragraph 1, of the Convention, as regards the length of the proceedings; that there had been a violation of Article 6, paragraph 1, as regards the fairness of the proceedings before the Martial Law Court and the lack of independence and impartiality of this court, and that there had been no violation of Article 6, paragraph 1, of the Convention, as regards the complaint that the court had not been established by law;

Whereas on 11 January 1995 the Commission transmitted the said report to the Committee of Ministers;

Whereas, however, the case was brought before the Court by the Commission on 23 January 1995 ;

Whereas in its judgment of 25 March 1996 the Court notably held, unanimously, that not having jurisdiction ratione temporis , it could not deal with:

a . the applicants’ complaints relating to the length of their detention              pending trial; the lawfulness, independence and impartiality of the Martial Law Court; and the fairness of the proceedings before it;

b . the objections raised on these points by the Government;

Whereas at the 576th meeting of the Ministers’ Deputies (held on 4 November 1996), the Committee of Ministers concluded that in accordance with Article 32 of the Convention, it was competent to examine complaints declared admissible by the Commission if the Court, when seized, declared itself incompetent ratione temporis to examine them as to their merits;

Whereas, at the 582nd meeting of the Ministers’ Deputies (held on 17 January 1997), the Committee of Ministers examined the complaints declared admissible by the Commission in this case, for which the Court had declared itself incompetent ratione temporis ;

Whereas at this meeting the Committee of Ministers, having voted in accordance with the provisions of Article 32, paragraph 1, of the Convention, and agreeing with the opinion expressed by the Commission, held, by decision adopted on 28 January 1997, that there had been in this case a violation of Article 5, paragraph 3 of the Convention as a result of the excessive length of the detention on remand; that there had been a violation of Article 6, paragraph 1, of the Convention, as regards the fairness of the proceeding before the Martial Law Court; that there had been a violation of Article 6, paragraph 1, of the Convention, as regards the independence and impartiality of this court; and that there had been no violation of Article 6, paragraph 1, of the Convention as the court could be said to be a tribunal established by law;

Whereas the Committee of Ministers examined the proposals made by the Commission when transmitting its report as regards just satisfaction to be awarded to the applicants, proposals supplemented by a letter of the President of the Commission dated 24 July 1997;

             Whereas, at the 605th meeting of the Deputies, the Committee of Ministers, agreeing

with the Commission’s proposals, held, by decision adopted on 29 October 1997, in accordance with Article 32, paragraph 2, of the Convention, that the Government of Turkey was to pay as just satisfaction, within three months, to Mr Mitap 40 000 French francs in respect of non-material damage and 10 000 French francs in respect of costs and expenses, and to Mr Müftüo_lu of 40 000 French francs in respect of non-material damage and the sum of 10 000 French francs in respect of costs and expenses, namely a total sum of 100 000 French francs and that interest should be payable on any unpaid sum, calculated on the basis of each full elapsed month of delay at the statutory rate applicable on the date of this decision, it being understood that the interest would accrue from the expiry of the time-limit until full payment was placed at the disposal of the applicants;

Whereas the Committee of Ministers invited the Government of Turkey to inform it of the measures taken following its decisions of 28 January 1997 and 29 October 1997, having regard to Turkey’s obligation under Article 32, paragraph 4, of the Convention to abide by them;

Whereas, during the examination of the case by the Committee of Ministers, the Government of Turkey accordingly gave the Committee information about the measures taken in consequence of the Committee’s decisions, notably preventing new similar violations of the Convention; this information appears in the appendix to this resolution;

Whereas the Committee of Ministers satisfied itself that on 18 December 1997, within the time-limit set, the Government of Turkey paid the applicants the total sum of 3 346 000 Turkish lires.

Whereas the Committee of Ministers noted, on the one hand the absence of any objection from the applicants as regards the fact that the payment was in Turkish lires, and on the other hand, checked that the amount paid was equivalent to the amount awarded in French francs,

Declares, having taken note of the measures taken by the Government of Turkey, that it has exercised its functions under Article 32 of the Convention in this case;

Authorises the publication of the report adopted by the Commission in this case.

Appendix to Resolution DH (98) 82

Information provided by the Government of Turkey

during the examination of the case of Mitap and Müftüo_lu

by the Committee of Ministers

A legislative amendment, adopted on 27 December 1993, has revoked the powers of the Martial Law Tribunal in cases involving civilians occuring after the lifting of Martial Law in 1986 and transferred these powers to the ordinary courts. The amendment also provided that cases still pending before the military courts, e.g. such cases as that of Mr Mitap and Mr Müftüo_lu, should be transferred to the civil Court of Cassation.

As the military courts are accordingly no longer competent in cases involving civilians, the violation of Article 6 found with respect to the independence and impartiality of the military courts cannot occur anew in such cases.

The Commission’s report has been disseminated to the authorities concerned, notably in order to draw their attention to the necessity of avoiding excessively long detentions on remand.

The Government of Turkey is of the opinion that with the adoption of the above measures Turkey has complied with its obligations under Article 32 of the Convention.