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
MrsE. Palm, President,
MrJ. Casadevall,
MrGaukur Jörundsson,
MrR. Türmen,
MrC. Bîrsan,
MrsW. Thomassen,
MrR. Maruste, judges,
andMrM. 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 Şaban Değirmenci 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 nationals. They are represented before the Court by Mr Şenal SARIHAN, a lawyer practising in Ankara (Turkey).
The facts of the case, as submitted by the applicants, 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)İbrahim Arslan
09.07.1981 - 17.09.1981
currently detained
6)Ercan Uğur
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 Üresin
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)Şaban Değirmenci
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 Şahin
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 Altuntaş
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 Ulutaş
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’BoyleElisabeth Palm
RegistrarPresident
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)İbrahim Arslan, who was born in 1955, resides in Samsun
6)Ercan Uğur, 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 Üresin, 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 İzmir
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 Şahin, 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 Altuntaş, 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 Ulutaş, who was born in 1960, resides in Manisa
[*] See annex for a list of the applicants
Full & Egal Universal Law Academy