AS TO THE ADMISSIBILITY OF
Application No. 33368/96
by Alper Tunga Levent YAKIS
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 17 June 1996 by
Alper Tunga Levent Yakis against Turkey and registered on 4 October
1996 under file No. 33368/96;
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 1957, resides in Ankara.
He is represented before the Commission by Nurten Caglar, 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
26 November 1980 and was subsequently detained on remand upon a
decision of the Ankara Court-Martial on 26 February 1982. He was
released on 22 June 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. It was also alleged that the
applicant had been trained for shooting in order to organise robberies
with the aim of obtaining money for the organisation. Following his
training the applicant had organised many robberies during which he had
instigated many violent acts such as killing S.A. and N.A., wounding
H.A., bombing the house of the American ambassador and acting as an
armed look-out. The prosecution called for the applicant to be
sentenced pursuant to Article 146 of the Turkish Criminal Code.
On 26 December 1980 the applicant in his statement made to the
police confessed his illegal activities related to the organisation.
However, during his questioning by the Public Prosecutor he denied his
statement and alleged that it had been made under duress. During the
court hearings he confirmed that he had shared the opinions of the
publication called Dev-Yol and had expressed his willingness to take
part in the struggle against fascism 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. The court rejected the
applicant's objection that his statement made to the police was made
under duress. It concluded that the applicant's activities had been
corroborated by the statements of other accused. The court further held
that the applicant had been arrested in a house used by the
organisation. There was therefore no doubt or hesitation about his
relationship with the organisation and his illegal activities. The
court 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 due to 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 5 para. 3 of the Convention
that his detention on remand was prolonged beyond a reasonable time.
2. The applicant further complains that the criminal proceedings
brought against him were not dealt with 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.
5. He further complains that his 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 deal with cases pending before them.
6. He lastly 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.
THE LAW
1. The applicant complains that the length of his detention exceeded
a reasonable time and that he was denied release pending trial within
the meaning of Article 5 para. 3 (Art. 5-3) of the Convention. He also
complains that because of its excessive length his detention on remand
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 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 19 July 1989 when he was convicted in first
instance, whereas the application was submitted to the Commission on
17 June 1996, that is more than six months after the end of the
situation complained of.
It follows that the applicant's above complaints have been
introduced out of time and must be rejected under Article 27 para. 3
(Art. 27-3) of the Convention.
2. The applicant further complains that his case was not heard by
a tribunal established by law within the meaning of Article 6 para. 1
(Art. 6-1) of the Convention. In this context he explains that although
martial law was lifted in Ankara on 19 July 1985, Courts-Martial
continued to deal with cases pending before them.
The Commission observes that the Court-Martial remained competent
to deal with this case even after the lifting of martial law, until
27 December 1993, pursuant to a provision in Article 23 of the Martial
Law Act (no. 1402) of 13 May 1971, amended on 19 September 1982. This
provision was repealed by Act No. 3953 of 27 December 1993, amending
Act No. 1402, and the case-file was transferred to the non-military
criminal courts.
The Commission further considers that in this case, the applicant
was prosecuted and convicted on the basis of legal provisions
enpowering a Court-Martial to decide, even in peacetime, cases against
civilians suspected of having committed offences designed to undermine
the constitutional system.
It follows that the Court-Martial, which tried and convicted the
applicant, may be considered to be a tribunal "established by law"
within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention
(Mitap and Muftuoglu v. Turkey, Comm. Report 8 December 1994, para. 86,
to be published in Reports of Judgments and Decisions, 1996).
Consequently, this part of the application must be dismissed as
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
3. The applicant complains that the criminal proceedings brought
against him were not dealt with within a "reasonable time" as required
by Article 6 para. 1 (Art. 6-1) of the Convention.
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 (Art. 6-1) of the
Convention.
The applicant further 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 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