AS TO THE ADMISSIBILITY OF
Application No. 33363/96
by Fikret DOGAN
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 27 June 1996 by
Fikret Dogan against Turkey and registered on 4 October 1996 under file
No. 33363/96;
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 1962, resides in Ankara.
He is represented before the Commission by Canan Aydin, a lawyer
practising 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
28 November 1980 and was subsequently detained on remand following a
decision of the Ankara Court-Martial on 9 January 1981. He was released
in 1991.
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. In addition it was alleged
that he had instigated a number of violent acts such as the killing of
C.M. and C.D., opening fire on H.C., G.A. and N.A. and bombing a
house. It was also alleged that following his confession the police
found a huge amount of explosives and many weapons which were used
during the above-mentioned acts. The prosecution called for the
applicant to be sentenced pursuant to Article 146 of the Turkish
Criminal Code.
On 25 December 1982 the applicant in his statement made to the
police confessed his illegal activities related to the organisation.
The applicant was also questioned by the Public Prosecutor in the
Ankara Court-Martial. He confirmed his membership of Dev-Yol, but he
denied vehemently the illegal activities of which he had been accused.
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. It held that although the
applicant had denied his statement made to the police, his activities
had been corroborated by the statements of other accused. The court
further referred to the weapons and the explosives which were found in
his flat. It concluded that this evidence confirmed the applicant's
illegal activities and sentenced him to life imprisonment, debarred
him from employment in the civil service and also placed him under
judicial guardianship during his detention.
The case was automatically referred to the Military Court of
Cassation under the provision of Article 305 of the Turkish Code of
Criminal Procedure which stipulates that there is an automatic appeal
where the sentence passed at first instance exceeds fifteen years'
imprisonment.
Pursuant to a law promulgated on 27 December 1993, the case-file
was transferred to the Court of Cassation. On 27 December 1995 the
Court of Cassation upheld the first instance court's decision.
COMPLAINTS
1. The applicant complains under Article 3 of the Convention of the
conditions of his detention in police custody.
2. 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.
3. He also 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.
4. He 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.
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.
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 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 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.
The applicant 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.
He further complains under Article 6 para. 1 (Art. 6-1) of the
Convention that he did not have a fair trial as his statements made to
the police under duress constituted the grounds of the courts'
decisions.
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 and his complaint concerning
the independence and impartiality of the court,
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