AS TO THE ADMISSIBILITY OF
Application No. 24273/94
by TÖB-DER
against Turkey
The European Commission of Human Rights (Second Chamber) sitting
in private on 21 May 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 7 March 1994 by
TÖB-DER against Turkey and registered on 6 June 1994 under file
No. 24273/94;
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 private association under Turkish law, had its
seat in Ankara. It is represented before the Commission by ilhan Disçi
and Akay Sayilir, both lawyers practising in Ankara.
The facts of the present case, as submitted by the applicant, may
be summarised as follows.
The applicant association was composed of teachers. The aim of
the association was to promote the solidarity of teachers nation-wide.
On 25 December 1981 the 3rd Court Martial in Ankara convicted the
applicant association's members and a number of executive staff under
Articles 141 and 142 of the Turkish Criminal Code of founding an
association whose aim was domination by a particular social class. That
decision concerned only the members and the staff who were present
during the trial. The court also ordered the dissolution of the
association and decided to transfer all its property pursuant to the
provisions of Article 64 of the Associations Code. This decision was
upheld by the Military Court of Cassation on 31 March 1983.
The members and the staff who were absent during the above-
mentioned trial were acquitted by the Ankara Court of Assize on 15
March 1989, on the ground that there was insufficient evidence.
After the amendments made to the Turkish Criminal Code by the
Anti-Terror Law No. 3713 of 12 April 1991, the applicant association's
members requested on 22 November 1991 recognition of the association's
legal personality before the 4th Court Martial in Ankara on the ground
that Articles 141 and 142, on the basis of which they had been
convicted, were no longer in force. The applicant association's
directors based their request on Article 2 of the Turkish Criminal Code
which stipulates that nobody can be punished for an act or omission
which, although it was a crime when it was committed, is no longer a
crime under the subsequent law.
On 28 November 1991 the 4th Court Martial in Ankara rejected the
request filed by the applicant association's members. It held that
Article 2 of the Turkish Criminal Code was not applicable to the
present case as the applicant association's dissolution was a
disciplinary sanction pursuant to the provisions of Article 64 of the
Associations Code and since Article 2 of the Turkish Criminal Code was
applicable only to the crimes dealt with in the Turkish Criminal Code.
The applicant association's members appealed. On 5 May 1992 the
Supreme Military Court dismissed their request on the ground that, as
the association was dissolved and had no legal personality, the legal
representatives' power of attorney was invalid and they could not bring
any application on behalf of the association.
Following this decision, the applicant association's members
requested a written order from the Ministry of Defence in order to
bring an appeal before the Military Court of Cassation. On 29 June 1993
the Ministry rejected this request.
The applicant association's members also requested the Public
Prosecutor of the Military Court of Cassation to apply for
rectification of the decision as he is the only authority who can bring
such a request if he considers it appropriate. On 10 September 1993 the
Public Prosecutor of the Supreme Military Court rejected this
applicant's request.
COMPLAINTS
1. The applicant association complains firstly that the Ankara
Martial Court which ordered its dissolution was not an independent and
impartial tribunal, as required by Article 6 para. 1 of the Convention.
On the basis of the same fact the applicant also alleges that this kind
of courts cannot guarantee a fair trial to persons subject to their
jurisdiction.
2. The applicant association also complains that following the
amendments to the Turkish Criminal Code, the decisions of the Court
Martial in Ankara and the Military Court of Cassation denying
recognition of the association's legal personality were unlawful and
incompatible with the exercise of the freedom of association and
infringed its rights set forth in Article 11 of the Convention.
3. The applicant association complains lastly under Article 1 of
Protocol No. 1 to the Convention that the association has been
unlawfully deprived of its property, as a result of a judicial decision
in which it was declared to be an association whose aim was domination
by a particular social class, whereupon the court ordered the
dissolution of the association and all its property was transferred to
the Treasury.
THE LAW
1. The applicant association complains firstly that the Ankara
Martial Court which refused to recognise its legal personality were not
independent and impartial tribunals, as required by Article 6 para. 1
(Art. 6-1) of the Convention. On the basis of the same fact the
applicant also alleges that this kind of courts cannot guarantee a fair
trial to persons subject to their jurisdiction.
The applicant also complains that the decisions of the domestic
courts which refused to recognise the association's legal personality
are incompatible with the exercise of the freedom of association and
that they infringed its rights set forth in Article 11 (Art. 11) of the
Convention.
As far as the above-mentioned complaints are concerned, the
Commission is not required to decide whether or not the facts alleged
by the applicant disclose any appearance of a violation of this
provision, as Article 26 (Art. 26) of the Convention provides that the
Commission "may only deal with the matter...within a period of six
months from the date on which the final decision was taken". According
to the Commission's established jurisprudence, the "final decision"
within the meaning of Article 26 (Art. 26) refers solely to the final
decision involved in the exhaustion of all domestic remedies according
to the generally recognised rules of international law. In particular,
for a remedy to be effective, it must be accessible, i.e. the person
concerned must be able to institute the relevant proceedings himself
(cf., e.g., No. 12604/86, Dec. 10.7.91, D.R. 70, p. 125).
The Commission finds that, in the present case, the applicant's
request for a written order from the Ministry of Defence to bring an
appeal before the Military Court of Cassation and his application to
the Military Court of Cassation for rectification of a decision were
not directly accessible remedies under domestic law. In reaching this
conclusion the Commission took into account the fact that in order to
be able to use these remedies, the Ministry of Defence and the Public
Prosecutor attached to the Military Court of Cassation would have to
take the initiative of issuing a formal order to the relevant courts.
The Commission accordingly takes the view that these remedies were not
directly accessible, since the applicant was not in a position to set
the appeal procedure in motion himself (No. 14545/89, Dec. 9.10.90,
D.R. 66, p. 245).
Consequently the Ministry of Defence's decision to refuse the
request for a written order on 29 June 1993 and the Military Court of
Cassation's decision to refuse the rectification of a decision request
on 10 September 1993 cannot be taken into consideration in determining
the date of the final decision for the purpose of applying the six-
month time-limit laid down in Article 26 (Art. 26). The final decision
is the decision of the Military Court of Cassation, refusing the
appeal, which was given on 5 May 1992. However the present application
was submitted to the Commission on 7 March 1994, that is more than six
months after the date of this decision. Furthermore, an examination of
the case does not disclose the existence of any special circumstances
which might have interrupted or suspended the running of that period.
It follows that the application has been introduced out of time
and must be rejected under Article 27 para. 3 (Art. 27-3) of the
Convention.
2. The applicant lastly complains that the transfer of the
association's property to the Treasury, infringed its rights under
Article 1 of Protocol No. 1 (P1-1) to the Convention.
In so far as the applicant association complains under Article
1 of Protocol No. 1 (P1-1) to the Convention that it was unlawfully
deprived of its property on 31 March 1983, the Commission recalls that
the declaration made 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 in the present case that the complaints
under Article 1 of Protocol No. 1 (P1-1) concern the dissolution of the
association by a court order and the transfer of its property to the
Treasury on 31 March 1983. The Commission observes that the facts
alleged relate to a period prior to 28 January 1987.
It follows that the applicant's complaint under Article 1 of
Protocol No. 1 (P1-1) to the Convention falls outside the competence
ratione temporis of the Commission and therefore must be rejected as
incompatible with the provisions of the Convention within the meaning
of Article 27 para. 2 (Art. 27-2).
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.-T. SCHOEPFER G.H. THUNE
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy