AS TO THE ADMISSIBILITY OF
Application No. 29281/95
by Halil ibrahim ARI
against Turkey
The European Commission of Human Rights (Second Chamber) sitting
in private on 2 July 1997, the following members being present:
Mrs. G.H. THUNE, President
MM. J.-C. GEUS
G. JÖRUNDSSON
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
A. ARABADJIEV
Ms. M.-T. SCHOEPFER, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 22 August 1995 by
Halil ibrahim Ari against Turkey and registered on 16 November 1995
under file No. 29281/95;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, a Turkish citizen born in 1952, resides in Ankara.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
The applicant, accused of being a member of the organisation Dev-
Yol (Revolutionary Way), was taken into police custody in Ankara on 11
June 1981 and was subsequently detained on remand following a decision
of the Ankara Court-Martial on 18 September 1981. He was released
pending trial on 18 March 1987.
On 26 February 1982 the military prosecutor filed a bill of
indictment in the Court-Martial against altogether 723 defendants
including the present applicant.
It was alleged that the applicant was a member of an illegal
organisation whose aim was to undermine the constitutional order and
replace it with a Marxist-Leninist regime. It was also alleged that he
had obtained funds and weapons for the organisation, made the
university students aware of Dev-Yol, trained them and organised the
youth as a founder of the Youth Division of Dev-Yol. The prosecution
called for the applicant to be sentenced pursuant to Article 168 of the
Turkish Criminal Code.
On 16 September 1981 the applicant was questioned by the Public
Prosecutor at the Ankara Court-Martial. In his questioning he confirmed
his statement made to the police and made some amendments to his
confession. The applicant was also questioned by the Public Prosecutor
at Sivas on 27 July 1981 and 16 October 1981 during which he confessed
his further illegal activities.
During the court hearings on 3 March and 7 June 1982, however,
the applicant denied all his statements and alleged that they had been
made under duress.
After martial law was lifted, the Ankara Court-Martial took the
name of Court-Martial attached to the 4th army corps.
In a judgment of 19 July 1989, the Court-Martial found the
applicant guilty of the offences as charged and rejected this objection
that his statement made to the police was made under duress. It held
that the applicant had confirmed his statements several times and had
made the necessary amendments of his own free will. There was therefore
no doubt or hesitation about the applicant's sincerity and honesty.
Moreover, the applicant's statements were verified and corroborated by
the statements of other accused.
The court ruled that the applicant had not participated in an
armed assault but had taken a leading role with the aim of undermining
the constitutional order by force. The court sentenced him to thirteen
years and four months' imprisonment, debarred him from employment in
the civil service and also placed him under judicial guardianship
during his detention.
Following the applicant's appeal, the case was referred to the
Military Court of Cassation.
Pursuant to a law promulgated on 27 December 1993, the case-file
was transferred to the non-military criminal court, Court of Cassation,
by Act 3953. On 27 December 1995 the Court of Cassation quashed the
first instance court's decision on the ground that the court had failed
to apply all legal provisions relevant to the crime in question. The
Court of Cassation ruled that there was no need for a retrial of the
case. Accordingly, it revised the judgment and finally sentenced the
applicant to ten years' imprisonment.
COMPLAINTS
1. The applicant complains under Article 3 of the Convention of the
conditions of his detention in police custody.
2. The applicant complains under Article 5 para. 4 of the Convention
that Turkish law does not afford any effective remedy by which the
lawfulness of his police custody could be decided speedily by a court.
On the basis of the same facts he also complains that he was deprived
of his right to compensation under Article 5 para. 5 of the Convention.
3. The applicant further complains that the criminal proceedings
brought against him were not concluded within a "reasonable time" as
required by Article 6 para. 1 of the Convention.
4. He also complains that his case was not heard by an independent
and impartial tribunal, as required by Article 6 para. 1 of the
Convention. He explains that the Court-Martial was composed of five
members: two military judges, two civil judges and one army officer
with no legal training and fully accountable to the military commander
of the state of martial law.
5. The applicant complains that he did not have a fair trial as the
courts based their reasoning on statements which he had made to the
police under duress, which is contrary to Article 6 para. 1 of the
Convention.
6. He also complains under Article 6 para. 2 of the Convention that
owing to its excessive length his detention on remand could no longer
be considered as a provisional measure, but constituted an anticipatory
sentence.
7. The applicant lastly complains under Articles 9 and 10 of the
Convention that the investigations carried out were the direct
consequence of conflicting views of the applicant and the Turkish
authorities on the current political system.
THE LAW
1. The applicant complains under Article 3 (Art. 3) of the
Convention about the conditions of his police custody. He alleges that
during his interrogation by the police he was subjected to various
forms of ill-treatment, without giving any details of the alleged ill-
treatment. In this context the Commission notes that his police custody
ended on 18 March 1987.
The Commission recalls that the declaration made by Turkey on
28 January 1987, pursuant to Article 25 (Art. 25) of the Convention,
by which Turkey recognised the Commission's competence to examine
individual petitions, extends only to facts and judgments based on
events occurring after that date. The Commission notes that the above
complaint under Article 3 (Art. 3) of the Convention concerns a period
which is prior to 28 January 1987.
It follows that the applicant's complaint in this respect must
be rejected as falling outside the competence ratione temporis of the
Commission and therefore as being incompatible with the provisions of
the Convention within the meaning of Article 27 para. 2 (Art. 27-2).
2. The applicant complains that as the length of his detention
exceeded a reasonable time it could not be considered as a provisional
measure, but constituted an anticipatory sentence, infringing the
presumption of innocence under Article 6 para. 2 (Art. 6-2) of the
Convention.
The applicant also complains under Article 5 para. 4 (Art. 5-4)
of the Convention that Turkish law does not afford any effective
remedy by which the lawfulness of his police custody could be decided
speedily by a court. On the basis of the same facts he also complains
that he was deprived of his right to compensation under Article 5 para.
5 (Art. 5-5) of the Convention.
The Commission recalls that, according to Article 26 (Art. 26)
of the Convention, it may only deal with applications introduced within
a period of six months after the final decision or, where there are no
domestic remedies available, after the end of the situation complained
of.
In this respect the Commission observes that the applicant's
detention within the meaning of Article 5 para. 1(c) and 3
(Art. 5-1-c, 5-3) ended on 18 March 1987 when he was released pending
trial, whereas the application was submitted to the Commission on 22
August 1995, that is more than six months after the end of the
situation complained of.
It follows that these complaints have been introduced out of time
and must be rejected under Article 27 para. 3 (Art. 27-3) of the
Convention.
3. The applicant complains that the criminal proceedings brought
against him were not concluded within a "reasonable time" as required
by Article 6 para. 1 (Art. 6-1) of the Convention.
He also complains that his case was not heard by an independent
and impartial tribunal, as required by Article 6 para. 1 (Art. 6-1) of
the Convention. He explains that the Court-Martial was composed of five
members: two military judges, two civil judges and one army officer
with no legal training and fully accountable to the military commander
of the state of martial law.
The applicant further complains that he did not have a fair trial
as the courts based their reasoning on statements which he had made to
the police under duress, which is contrary to Article 6 para. 1
(Art. 6-1) of the Convention.
The applicant lastly complains under Articles 9 and 10
(Art. 9, 10) of the Convention that the investigations carried out were
the direct consequence of conflicting views of the applicant and the
Turkish authorities on the current political system.
The Commission 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 48 para. 2 (b) of the
Rules of Procedure, to give notice of these complaints to the
respondent Government.
For these reasons, the Commission,
DECIDES TO ADJOURN the examination of the applicant's complaints
concerning the length and fairness of the criminal proceedings
instituted against him, his complaint concerning the independence
and impartiality of the court, and his complaint that his
conviction unjustifiedly interfered with his freedoms of thought
and expression,
unanimously,
DECLARES THE REMAINDER OF THE APPLICATION INADMISSIBLE.
M.-T. SCHOEPFER G.H. THUNE
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy