AS TO THE ADMISSIBILITY OF
Application No. 31831/96 Application No. 33369/96
by Muharrem Özcan by Polat Can
against Turkey against Turkey
Application No. 33645/96 Application No. 34591/97
by Yüksel Polat by Sükrü Özçetin
against Turkey against Turkey
Application No. 34687/97
by Tugba Kiliç Kalkan
against Turkey
The European Commission of Human Rights sitting in private on
9 April 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
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 applications listed in the Appendix to this
decision ;
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 applicants listed in the annex are all Turkish citizens.
The facts of the cases as submitted by the applicants, may be
summarised as follows.
The applicants, accused of being members of the organisation Dev-
Yol (Revolutionary Way), were taken into police custody in Ankara at
various dates between October 1980 and April 1985 and they were
subsequently detained on remand upon decisions of the Ankara court-
martial. They were all released pending trial.
The details are as follows:
The applicant Periods of End of the
and No. of the police detention
application custody
31831/96
Muharrem Özcan 16.04.1985
29.04.1985 24.03.1986
33369/96
Polat Can 03.12.1980
27.01.1981 31.12.1983
33645/96
Yüksel Polat 12.10.1980
31.10.1980 19.01.1982
34591/97
Sükrü Özçetin 26.11.1981
24.12.1981 26.05.1986
34687/97
Tugba Kiliç Kalkan 4.11.1980
27.01.1981 3.11.1981
On 26 February 1982 the military prosecutor filed a bill of indictment
in the court-martial against altogether 723 defendants including the
present applicants.
It was alleged that the applicants had founded an organisation, in
which some of them also took a leading role, and whose aim was to
undermine the constitutional order and replace it with a Marxist-
Leninist regime; that they had advocated the need to set up resistance
committees against attacks by extreme right-wing militants, and that
they had instigated a number of violent acts. The prosecution called
for the applicants to be sentenced pursuant to Articles 146 of the
Turkish Criminal Code.
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 applicants
guilty of the offences as charged, and sentenced them to various terms
of imprisonment.
The case was automatically referred to the Supreme Military Court due
to the provision of Article 305 of Turkish Code of Criminal Procedure
which stipulates that there is an automatic appeal where the sentence
passed at first instance exceeds fifteen years' imprisonment.
Following the law promulgated on 27 December 1993, the case-file was
transferred to the Court of Cassation. On 27 December 1995 the Court
of Cassation held that regarding the applicants the prosecution was
time-barred in accordance with the principles of prescription. The
judgment concerning the applicants was based on the following reasons:
"...it has been decided to quash the decision of the first instance
court pursuant to Article 301 of Code of Criminal Procedure as it is
apparent that the lapse of time prescribed in Articles 102 para. 3, 104
para. 2 of the Turkish Criminal Code has expired, and there is no need
for retrial of this matter in accordance with Article 322 of the Code
of Criminal Procedure. Therefore it has been decided to terminate the
Public Prosecution against the above-mentioned defendants..."
COMPLAINTS
1. All applicants complain that the criminal proceedings brought
against them were not dealt with within a "reasonable time" as required
by Article 6 para. 1 of the Convention.
2. The applicant Muharrem Özcan also complains under Article 3 of
the Convention of the conditions of his detention in police custody.
3. The applicants Muharrem Özcan, Polat Can, Yüksel Polat and Sükrü
Özçetin complain under Article 5 para. 3 of the Convention that their
detention on remand was prolonged beyond a reasonable time.
4. The applicants Muharrem Özcan, Polat Can and Yüksel Polat
complain that they did not have a fair trial as the courts based their
reasoning on statements which they had made to the police under duress,
which is contrary to Article 6 para. 1 of the Convention.
5. The applicants Yüksel Polat and Polat Can also complain that
their case was not heard by an independent and impartial tribunal, as
required by Article 6 para. 1 of the Convention. They explain 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 of the state of martial law.
They also claim that their case was not heard by a tribunal
established by law within the meaning of Article 6 para. 1 of the
Convention. Although martial law was lifted in Ankara on 19 July 1985,
courts-martial continued to try cases pending before them.
6. The applicants Polat Can and Yüksel Polat complain under
Article 6 para. 2 of the Convention that owing to its excessive length
their detention on remand could no longer be considered as a
provisional measure, but constituted an anticipatory sentence.
THE LAW
1. The applicant Özcan 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.
Certain applicants complain that their detention on remand
exceeded the reasonable time within the meaning of Article 5 para. 3
(Art. 5-3) of the Convention. In this context the Commission notes that
their detention on remand ended at various dates between 1980 and 1986.
Two of these applicants also complain under Article 6 para. 2
(Art. 6-2) of the Convention that owing to its excessive length their
detention on remand could no longer be considered as a provisional
measure, but constituted an anticipatory sentence.
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
complaints concern a period which is prior to 28 January 1987.
It follows that the applicants' complaints in this respect must
be rejected as falling outside the competence ratione temporis of the
Commission and therefore incompatible with the provisions of the
Convention within the meaning of Article 27 para. 2 (Art. 27-2).
2. Certain applicants complain under Article 6 para. 1 (Art. 6-1)
of the Convention that they did not have a fair trial as their
statements made to the police under duress constituted the grounds of
the court's decisions.
Certain applicants complain that their case was not heard by an
independent and impartial tribunal, as required by Article 6 para. 1
(Art. 6-1) of the Convention. They explain 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
commander of he state of martial law. Some of them also complain under
the same Article that their case was not heard by a tribunal
established by law.
However the Commission notes that the charges against the
applicants were withdrawn on the ground of prescription.
The Commission recalls that the withdrawal of the criminal
proceedings instituted against the applicants constitutes redress of
the violations which would have infringed their rights under the
Convention (No. 5575/72, Dec. 8.7.74, D.R. 1, p. 44). It also recalls
that on 24 October 1995 the Commission declared the applications
Cankoçak against Turkey (Nos. 25182/94 and 26956/95) partially
inadmissible on the same ground.
Accordingly, the 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 27
para. 2 (Art. 27-2) of the Convention.
3. All applicants complain that the criminal proceedings brought
against them were not dealt with within a "reasonable time" as required
by Article 6 para. 1 (Art. 6-1) of the Convention.
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 JOIN THE APPLICATIONS;
DECIDES TO ADJOURN the examination of the applicants' complaint
related to the length of the criminal proceedings instituted
against them;
unanimously,
DECLARES THE REMAINDER OF THE APPLICATIONS INADMISSIBLE.
M.-T. SCHOEPFER G.H. THUNE
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy