FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Applications nos.
26480/95, 28291/95, 29280/95, 29699/96, 29700/96,
29701/96, 29702/96, 29703/96, 29911/96, 29912/96,
29913/96, 31831/96, 31834/96, 31853/96, 31880/96,
31891/96, 31960/96, 32964/96, 32987/96, 32990/96,
33362/96, 33369/96, 33645/96, 34591/97, 34687/97,
39428/98 and 43362/98
27 applications against Turkey
The European Court of Human Rights (First Section) sitting on 31 August 1999 as a Chamber composed of
MrsE. Palm, President,
MrL. Ferrari Bravo,
MrGaukur Jörundsson,
MrB. Zupančič,
MrT. Pantiru,
MrR. Maruste, Judges,
MrF. Gölcüklü, ad hoc Judge,
withMrM. 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 applications listed in the annex to this decision;
Having regard to the reports provided for in Rule 49 of the Rules of Court;
Having regard to the observations submitted by the respondent Government on 19 September 1997, 19 March, 27 April, 27 May 1998 and 22 February 1999, to which some of the applicants replied on 27 July 1998;
Having deliberated;
Decides as follows:
THE FACTS
The applicants, whose names appear in the appendix, are Turkish nationals.
The facts of the cases, as submitted by the parties, may be summarised as follows.
Between 1978 and 1985 the applicants were arrested by policemen and placed in police custody. They were accused of membership of an illegal organisation, the Dev-Yol (Revolutionary Way). The Ankara Martial Law Court (sıkıynetim mahkemesi) remanded the applicants in custody.
On 26 February 1982 the Military Public Prosecutor filed a bill of indictment with the Ankara Martial Law Court setting out charges against 723 defendants, including the applicants. He accused the applicants of membership of an organisation whose aim was to undermine the constitutional order and replace it with a Marxist-Leninist regime, contrary to Article 146 § 1 of the Turkish Criminal Code.
On different dates the applicants were all released pending trial by the Ankara Martial Law Court.
After martial Law was lifted, the Ankara Martial Law Court took the name of the Martial law Court attached to the 4th Army Corps.
On 19 July 1989 the Martial Law Court convicted the applicants and sentenced them to various terms of imprisonment.
As the applicants’ sentences exceeded 15 years’ imprisonment, their cases were automatically referred to the Military Court of Cassation (askeri yargıtay).
Following promulgation of the Law of 26 December 1994, which abolished the jurisdiction of the martial law courts, the Court of Cassation (yargıtay) acquired jurisdiction over the cases and the files were sent to it.
On 27 December 1995 the Court of Cassation held that the criminal proceedings brought against the applicants Muharrem zcan (no. 31831/96), Hasan Yaız (no. 31834/96), Ali hsan Pekda (no. 31960/96), Polat Can (no. 33369/96), Yksel Polat (no. 33645/97), kr zetin (no. 34591/97), Tuba Kılı (no. 34687/97) should be discontinued on the ground that the prosecution was time-barred (zamanaımı). The court quashed the convictions of the other applicants and referred the cases to the Ankara Assize Court (aır ceza mahkemesi). The criminal proceedings are still pending before the latter court.
The beginning and the end of the criminal proceedings instituted against the applicants are as follows:
Application no.
Applicant’s name
Beginning of the criminal proceedings
End of the criminal proceedings
26480/95
Yalın Brkev
24 November 1980
still pending
28291/95
Yaar Kanbur
5 March 1982
still pending
29280/95
Ali Bapınar
22 January 1981
still pending
29699/96
Erturul Dinleten
26 June 1979
still pending
29700/96
Hayati Metinolu
12 August 1979
still pending
29701/96
Sleyman zcan
20 March 1980
still pending
29702/96
Blent Sarıta
15 June 1979
still pending
29703/96
Mustafa Zlal
3 April 1979
still pending
29911/96
Hikmet Uygur
19 October 1980
still pending
29912/96
Saim ilengir
21 April 1979
still pending
29913/96
Aziz Binbir
15 March 1978
still pending
31831/96
Muharrem zcan
16 April 1985
27 December 1995
31834/96
Hasan Yaız
17 April 1985
27 December 1995
31853/96
Melih Bekdemir
22 January 1981
still pending
31880/96
Hıdır Adıyaman
31 August 1981
still pending
31891/96
Erdoan Gen
2 December 1980
still pending
31960/96
Ali hsan Pekda
25 November 1980
27 December 1995
32964/96
Cahit Akam
17 November 1980
still pending
32987/96
Hsamettin Keskin
3 November 1980
still pending
32990/96
Hicabi Karademir
25 September 1981
still pending
33362/96
Aydın Akyazı
26 November 1980
still pending
33369/96
Polat Can
3 December 1980
27 December 1995
33645/97
Yksel Polat
12 October 1980
27 December 1995
34591/97
kr zetin
26 November 1981
27 December 1995
34687/97
Tuba Kılı (Kalkan)
4 November 1980
27 December 1995
39428/98
Bnyamin nan
1 December 1980
still pending
43362/98
Osman Nuri Yakan
7 October 1981
still pending
COMPLAINT
The applicants complain that the criminal proceedings instituted against them were not determined within a reasonable time as required by Article 6 § 1 of the Convention.
PROCEDURE
The Commission decided to give notice of the applicants’ complaints concerning the length of the criminal proceedings to the respondent Government on the following dates:
- on 9 April 1997 in respect of applications nos. 28291/95, 29280/95, 29911/96, 29912/96, 29913/96, 29699/96, 29700/96, 29701/96, 29702/96, 29703/96, 31831/96, 31853/96, 31880/96, 31891/96, 32987/96, 32964/96, 32990/96, 33362/96, 33369/96, 33645/95, 4591/97, 34687/97;
- on 16 April 1997 in respect of application no. 31834/96;
- on 11 September 1997 in respect of application no. 31960/96;
- on 16 September 1997 in respect of application no. 26480/95;
- on 15 September 1998 in respect of application no. 43362/98;
- on 21 October 1998 in respect of application no. 39428/98.
The Commission invited the respondent Government to submit their observations on the admissibility and merits of the above applications in respect of the applicants’ complaints under Articles 6 § 1, 9 and 10 of the Convention. It declared the remainder of the complaints under Articles 3, 5 and 6 § 2 of the Convention inadmissible.
The Government submitted their observations on 19 September 1997, 27 May, 19 March, 27 April 1998 and 22 February 1999 respectively, to which some of the applicants replied.
On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the cases fell to be examined by the Court in accordance with the provisions of that Protocol.
THE LAW
The applicants’ complaints relate to the length of the proceedings in question. These proceedings began between 1978 and 1985. The criminal proceedings brought against the applicants Muharrem zcan (no. 31831/96), Hasan Yaız (no. 31834/96), Ali hsan Pekda (no. 31960/96), Polat Can (no. 33369/96), Yksel Polat (no. 33645/97), kr zetin (no. 34591/97), Tuba Kılı (no. 34687/97) ended on 27 December 1995. The criminal proceedings instituted against the other applicants are still pending before the Ankara Assize Court.
According to the applicants, the length of the proceedings – periods of 10 to 20 years – is in breach of the “reasonable time” requirement laid down in Article 6 § 1 of the Convention.
The Government refute the allegation. They point out that, pursuant to former Article 25 of the Convention, Turkey has accepted the competence of the Commission to examine individual petitions only in respect of facts or events that have occurred since 28 January 1987.
It is to be noted at the outset that on 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the cases fell to be examined by the Court in accordance with the provisions of that Protocol. It further notes in this respect that the Commission’s competence ratione temporis began on 28 January 1987, the date on which Turkey’s declaration accepting the right of individual petition came into force. Turkey accepted the former Court’s jurisdiction ratione temporis as of 22 January 1990. The question therefore arises whether the Court should be considered to be competent as from 28 January 1987 or 22 January 1990 to deal with each of the complaints submitted. The Court considers it appropriate in the circumstances of the present case to join this question to the merits as the parties have not had an opportunity to address it in their memorial.
As regards the merits of the case, the Government highlight the complexity of the cases and the nature of the offences with which the applicants were charged. They maintain that the courts dealt with a trial involving 723 defendants, including the applicants, whose activities and connections had to be established. The Government claim that no negligence or delay was imputable to the judicial authorities.
The Court considers, in the light of the criteria established in its case-law on the question of “reasonable time” (the complexity of the case, the applicant’s conduct and that of the competent authorities), and having regard to all the information in its possession, that an examination of the merits of this complaint is required.
For these reasons, unanimously, the Court
DECIDES TO JOIN THE APPLICATIONS,
DECIDES TO JOIN TO THE MERITS THE QUESTION CONCERNING ITS JURISDICTION RATIONE TEMPORIS,
and
DECLARES THE APPLICATIONS ADMISSIBLE, without prejudging the merits of the case.
Michael O’BoyleElisabeth Palm
RegistrarPresident
Full & Egal Universal Law Academy