AS TO THE ADMISSIBILITY OF
Application No. 33370/96
by Arap Yalgin, Muhtat Karakoca and
Mehmet Murat Öner
against Turkey
The European Commission of Human Rights (Second Chamber) sitting
in private on 11 September 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
Arap Yalgin, Muhtat Karakoca and Mehmet Murat Öner against Turkey and
registered on 4 October 1996 under file No. 33370/96;
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 applicants, Arap Yalgin, Muthat Karakoca and Mehmet Murat
Öner, are all Turkish citizens born in 1963, 1958 and 1954 respectively
who reside in Ankara. They are represented before the Commission by Oya
Ataman, a lawyer practising in Ankara.
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 on
various dates between November 1980 and March 1981 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 police End of the detention
custody
Muhtat Karakoca 20.11.1980 16.06.1986
19.10.1981
Mehmet Murat Öner 12.12.1980 01.02.1983
27.01.1981
Arap Yalgin 06.03.1981 01.05.1981
11.05.1981
On 26 February 1982 the military prosecutor filed a bill of
indictment in the Court-Martial against altogether 723 defendants
including the applicants.
Concerning the applicant Muhtat Karakoca, 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 further alleged that he had instigated a number
of violent acts such as the killing of F.S., burning down a car,
bombing a house and a shop. In addition it was alleged that he was
carrying an unlicensed weapon and a false identity card.
On 14 September 1981 the applicant was questioned by the Public
Prosecutor at the Ankara Court-Martial. He denied his statement made
to the police in which he confessed his illegal activities and alleged
that they were made under duress.
In due time, after martial law was lifted, the Ankara Court-
Martial took the name of Court-Martial attached to the 4th army corps.
It continued to deal with this case until 27 December 1993, pursuant
to a provision in Article 23 of the Martial Law Act (no. 1402) of May
1971, amended on 19 September 1982.
In a judgment of 19 July 1989, the Court-Martial found the
applicant guilty of the offences as charged. The court rejected his
objection that his statement made to the police was made under duress.
It concluded that the applicant's illegal activities had been verified
and corroborated by the statements made by others who had also been
accused. The court further referred to the false identity card which
was obtained with the help of other members of the organisation who
used to work in the registry office and to the fact that he was
arrested in Izmir while he was campaigning on behalf of Dev-Yol. The
court held that this evidence strengthened the applicant's illegal
activities. The court sentenced him to seven years' imprisonment,
debarred him from employment in the civil service and also placed him
under judicial guardianship during his detention.
Following the applicant's appeal the case was referred to the
Military Court of Cassation.
Pursuant to the law promulgated on 27 December 1993, the case-
file was transferred to the non-military court, the Court of Cassation,
by act No. 3953. On 27 December 1995 the Court of Cassation upheld the
first instance court's decision.
Concerning the applicant Mehmet Murat Öner, 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 further alleged that the applicant had prepared
false identity cards for the members of the organisation, had stolen
the seal of the company TEK, where he was employed in order to benefit
from buying and supplying the other members of the organisation with
clothes by way of preparing false promissory notes. It was also alleged
that he had registered a car under his name which was bought for the
organisation, and he had obtained funds for the organisation.
On 5 March 1981 the applicant, in his statement to the police,
confessed his illegal activities related to the organisation. However,
during his questioning by the Public Prosecutor and the court hearings
he denied his statements and alleged that they were made under duress.
In due time, after martial law was lifted, the Ankara Court-
Martial took the name of Court-Martial attached to the 4th army corps.
It continued to deal with this case until 27 December 1993, pursuant
to a provision in Article 23 of the Martial Law Act (no. 1402) of May
1971, amended on 19 September 1982.
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 verified and corroborated by the statements made by others who
had also been accused. The court further referred to the false identity
cards, the stolen seal of the company, and the car which was registered
under the applicant's name although he did not have a driving licence.
Accordingly, the court held that this evidence strengthened the
applicant's illegal activities and sentenced him to five years and six
months' imprisonment, debarred him from employment in the civil service
and also placed him under judicial guardianship during his detention.
Following the applicant's appeal the case was referred to the
Military Court of Cassation.
Pursuant to the law promulgated in 1993 by Act No. 3953 of
27 December 1993, amending Act No. 1402, the case-file was transferred
to the Court of Cassation. On 27 December 1995 the Court of Cassation
held that the prosecution was time-barred in accordance with the
principles of prescription. The judgment concerning the applicant was
based on the following reasons:
"...it has been decided to quash the decision of the first
instance court pursuant to Article 301 of the Code of Criminal
Procedure as it is apparent that the lapse of time prescribed in
Articles 102 para. 3 and 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..."
Concerning the applicant Arap Yalgin, 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 further alleged that he had participated in
some meetings, had acted as a look-out and had obtained funds for the
organisation. It was also alleged that following the applicant's
confession, two weapons and some explosives had been found and it had
been established that the weapons numbered as 658862-444855 were used
in some violent acts such as shooting with a gun at O.Y.'s house by the
applicant and the other accused M.Y.
On 5 April 1981 the applicant, in his statement to the police,
confessed his illegal activities related to the organisation. However,
during his questioning by the Public Prosecutor and the court hearings
he denied his statement and alleged that they were made under duress.
In due time, after martial law was lifted, the Ankara Court-
Martial took the name of Court-Martial attached to the 4th army corps
and continued to deal this case even after the lifting of martial law,
until 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.
In a judgment of 19 July 1989, the Court-Martial found the
applicant guilty of the offences as charged. The court rejected his
objection that his statement made to the police was made under duress.
It concluded that the applicant's illegal activities had been verified
and corroborated by the statements made by others who had also been
accused. The court further referred to the weapons and the explosives
which were found following the confessions of the applicant and the
others who had been also accused, and held that this evidence
strengthened the applicant's illegal activities. The court sentenced
him to six years and eight months' imprisonment, debarred him from
employment in the civil service and also placed him under judicial
guardianship during his detention. It took from 19 July 1989 to 1993
to draft the grounds of the judgment and following the applicant's
appeal the case was referred to the Military Court of Cassation.
Following the law promulgated by Act No. 3953 of
27 December 1993, the case-file was transferred to the non-military
court, the Court of Cassation, by Act No. 3953. On 27 December 1995 the
Court of Cassation quashed the first instance court's decision on the
grounds that the court had failed to apply all the relevant legal
provisions to the crime in question. The Court of Cassation ruled that
there was no need for a retrial of the case. Accordingly, it revised
the file and finally sentenced the applicant to five years'
imprisonment.
COMPLAINTS
1. All the applicants complain under Article 5 para. 3 of the
Convention that their detention on remand was prolonged beyond a
reasonable time.
2. The applicants further complain that the criminal proceedings
brought against them were not concluded within a reasonable time as
required by Article 6 para. 1 of the Convention.
3. They also 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.
4. They 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 commander of the state
of martial law.
5. They further complain 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,
the Court-Martial continued to deal with cases pending before it.
6. The applicants Muhtat Karakoca and Mehmet Murat Öner lastly
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. All three applicants complain that their detention on remand
exceeded a 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 1981 and 1986.
Muhtat Karakoca and Mehmet Murat Öner 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 these complaints must be rejected as falling
outside the competence ratione temporis of the Commission and therefore
as being incompatible with the provisions of the Convention within the
meaning of Article 27 para. 2 (Art. 27-2).
2. All three applicants further bring several complaints under
Article 6 (Art. 6) of the Convention.
a) The applicants complain that the criminal proceedings brought
against them were not concluded 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.
b) The applicants 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
(Art. 6-1) of the Convention.
They also 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
military commander of the state of martial law.
Concerning the applicants Arap Yalgin and Muhtat Karakoca, 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.
Concerning the applicant Mehmet Murat Öner, the Commission notes
that the charges against him were withdrawn on the ground of
prescription.
The Commission recalls that the withdrawal of the criminal
proceedings instituted against this applicant constitutes redress of
the violations which would have infringed his 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
Cankocak against Turkey (Nos. 25182/94 and 26956/95) partially
inadmissible on the same ground.
Accordingly, the applicant can no longer claim to be a victim of
a violation in respect of this matter and this complaint must be
dismissed as manifestly ill-founded within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention.
c) The applicants complain that their 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, they explain that
although martial law was lifted in Ankara on 19 July 1985, the Court-
Martial continued to deal with cases pending before it.
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
applicants were prosecuted and convicted on the basis of legal
provisions empowering 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
applicants, 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 Müftüoglu v. Turkey, Comm. Report 8 December 1994, para. 86,
Eur. Court H.R., Reports 1996-II, No. 6).
The Commission considers that in these circumstances it must
reject this complaint as manifestly ill-founded within the meaning of
Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission,
DECIDES TO ADJOURN the examination of all the applicants'
complaints related to the length of criminal proceedings
instituted against them and the applicants Muhtat Karakoca's and
Arap Yalgin's complaints relating to their right to a fair trial
by an independent and impartial tribunal,
unanimously,
DECLARES THE REMAINDER OF THE COMPLAINTS INADMISSIBLE.
M.-T. SCHOEPFER G.H. THUNE
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy