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FIRST SECTION
FINAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 33368/96
by Tunga Levent YAKIŞ
against Turkey
The European Court of Human Rights (First Section) sitting on 11 January 2000 as a Chamber composed of
Mrs E. Palm, President,
Mr L. Ferrari Bravo,
Mr Gaukur Jörundsson,
Mr B. Zupančič,
Mr T. Panţîru,
Mr R. Maruste, judges,
Mr F. Gölcüklü, ad hoc judge,
and Mr M. 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 application introduced on 17 June 1996 by Tunga Levent YAKIŞ against Turkey and registered on 4 October 1996 under file no. 33368/96;
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 December 1997 and the observations in reply submitted by the applicant on 16 February 1998;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Turkish citizen, born in 1957 and lives in Ankara. He is represented before the Court by Nurten Çağlar, a lawyer practising in Ankara.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 26 November 1980 police officers from the Ankara Security Directorate arrested the applicant in Ankara on suspicion of membership of an illegal organisation, the Dev-Yol (Revolutionary Way). He was then taken into police custody.
On 26 December 1980 and 29 January, 13 February and 31 April 1981 the applicant was questioned by the police officers. He confessed that he was a member of the Dev-Yol and that he had been involved in its illegal activities.
On 10 January 1981 the applicant was brought before the Military Public Prosecutor. During his questioning by the Public Prosecutor he denied the allegation that he was a member of the Dev-Yol. He alleged that his statements were taken under duress.
On 27 January 1981 the Ankara Martial Law Court (Sıkıyönetim Mahkemesi) ordered the applicant’s detention on remand. During his questioning by the investigating judge the applicant denied that he was a member of the Dev-Yol and that he had been involved in its activities.
On 26 February 1982 the Military Public Prosecutor filed a bill of indictment with the Ankara Martial Law Court against the applicant and 723 other defendants. The Public Prosecutor accused the applicant of membership of the Dev-Yol, whose object was to undermine the constitutional order and replace it with a Marxist-Leninist regime. The Military Public Prosecutor further indicated the applicant’s involvement in the illegal activities of the Dev-Yol, such as killings, bombings and robberies. The Prosecutor called for the applicant to be sentenced pursuant to Article 146 § 1 of the Turkish Criminal Code.
After martial law was lifted on 19 July 1987, 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 applicant on account of his membership of the Dev-Yol, his involvement in the killing of Ş.A., N.A. and S.Ö., opening fire on I.A., robbing two jewellery shops and taking part in bomb attacks on police headquarters. The court sentenced the applicant to lifetime imprisonment and permanently debarred him from employment in public service in accordance with Article 146 § 1 of the Turkish Criminal Code. The court also decided to deduct from the applicant’s sentence the length of time he had spent in detention pending trial. The court relied in particular on the following evidence: the applicant’s confessions at the Security Directorate, before the Public Prosecutor and the courts, the evidence given by the defendants, E.H., M.B.Ç., A.B., his confrontation with A.B. and other relevant documentary evidence.
The applicant lodged an appeal with the Military Court of Cassation.
On 22 July 1991 the applicant was conditionally released pending trial in accordance with Law no. 3713 of 12 April 1991.
Following promulgation of the Law of 27 December 1993, which abolished the jurisdiction of the martial law courts, the Court of Cassation (Yargıtay) acquired jurisdiction over the case and the case file was sent to it.
On 27 December 1995 the Court of Cassation upheld the Martial Law Court’s judgment.
COMPLAINTS
The applicant complains under Article 6 § 1 of the Convention that the criminal proceedings brought against him were not concluded within a “reasonable time” and that his right to a fair hearing was breached as he was tried by the Martial Law Court which lacked independence and impartiality.
The applicant also complains under Article 6 § 1 of the Convention that his conviction was based on statements he had made to the police under duress.
PROCEDURE
The application was introduced on 17 June 1996 and registered on 4 October 1996.
On 2 July 1997 the Commission decided to communicate to the respondent Government 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 Martial law Court and to declare the remainder of the application inadmissible.
The Government’s written observations were submitted on 19 December 1997. The applicant replied on 16 February 1998.
On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol.
THE LAW
A. Government’s preliminary objection
The Government submit that the applicant failed to exhaust domestic remedies without indicating which remedies were available to him.
The Court notes that the only remedies which Article 35 § 1 of the Convention requires to be exhausted are those that relate to the breaches alleged; the existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness; and it falls to the respondent State, if it pleads non‑exhaustion, to establish that these conditions are satisfied (see, amongst many authorities, the De Jong, Baljet and Van den Brink v. the Netherlands judgment of 22 May 1984, Series A no. 77, p. 19, § 39).
In so far as the applicant’s complaints relate to the length of the criminal proceedings against him, the Court observes that the Government have not established the existence of any effective remedy in this connection.
As regards the applicant’s complaints concerning the independence and impartiality of the Martial Law Court, the Court observes that the competence of Martial Law Courts was explicitly provided for, until the legislation was modified on 27 December 1993, by the Code of Military Criminal Procedure (Act no. 353) and by section 23 of Act no. 1402 of 13 May 1971, the Martial Law Act. In this respect, the Court considers that, even supposing that the applicant lodged an appeal to the effect that he was not tried by an independent and impartial tribunal, any such appeal would have been doomed to failure.
The Court considers, therefore, that the Government’s submission that the applicant failed to exhaust domestic remedies cannot be upheld.
B. Merits
1. The applicant complains that the criminal proceedings brought against him were not concluded within a “reasonable time” and that his right to a fair hearing was breached as he was tried by the Martial Law Court, which lacked independence and impartiality. He invokes Article 6 § 1 of the Convention, which provides, in so far as relevant:
“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing within a reasonable time by an independent and impartial tribunal...
The Government submit that the length of the criminal proceedings brought against the applicant could not be considered to be unreasonably long owing to the difficulties in the examination of thousands of files.
The Government further highlight the complexity of the case and the nature of the offences with which the applicant was charged. They maintain that the courts dealt with a trial involving 723 defendants, including the applicant, whose activities and connections with other defendants had to be established. The Martial Law Court followed an expedited procedure and made every effort to speed up the trial. Between 18 October 1982 and 19 July 1989 it held 512 hearings, at a rate of 3 per week. The investigation, during which all the accused were questioned, lasted 5 years. The Public Prosecutor, to whom the file was sent on 11 November 1987, was not able to complete his 1,766 pages of written submissions before 23 March 1988. The oral hearings, which began on 11 May 1988, lasted 10 months. Lastly, the file comprised approximately 1,000 loose-leaf binders and the summary of the judgment ran to no fewer than 264 pages.
As regards the independence and impartiality of the Martial Law Courts, the respondent Government submit that the two military and the two civilian judges sitting on the Martial Law Courts enjoy the guarantees of judicial independence and immunity laid down in the Constitution.
The applicant maintains his account of the events.
The Court considers, in the light of the parties’ submissions, that this part of the application raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits of the application. The Court concludes, therefore, that this part of the application is not manifestly ill-founded, within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.
2. The applicant alleges under Article 6 § 1 of the Convention that his right to a fair trial was breached since the courts convicted him on the basis of statements he had made to the police under duress.
The Government refute the applicant’s allegation. They claim that the statements made by the applicant during his pre-trial detention were not the sole ground for his conviction and that the courts had sufficient evidence to establish the applicant’s guilt. They maintain that the courts had regard to the evidence given by the witnesses, the applicant’s statements during the trials and the expertise reports confirming the use of several weapons by the applicant in numerous crimes.
The applicant contends in reply that there was no evidence to ground his conviction other than the statement he had made to the police under duress.
The Court points out that the Convention does not lay down rules on evidence as such. The admissibility of evidence is primarily a matter for regulation by national law and, as a rule, it is for the national courts to assess the evidence before them (see the Kostovski v. the Netherlands judgment of 20 November 1989, Series A no. 166, p. 19, § 39). However, an issue may arise under Article 6 § 1 in respect of evidence obtained in violation of Article 3 of the Convention even if the admission of such evidence was not decisive in securing the conviction.
In the instant case, the Court notes that in the proceedings before the Martial Law Court the applicant confined himself to challenging the admissibility of his statements to the police officers. However, apart from the allegation that his statements were taken under duress he did not at any stage give any any indication of the sort of ill-treatment which he allegedly suffered. The Court further observes that the applicant did not specifically set out in his application form to the Commission the details of the alleged duress during his pre-trial detention. It is also to be noted that he has not adduced any concrete evidence of having been subjected to duress as alleged. In this regard, the Court is of the opinion that the applicant has not laid the basis of an arguable claim that his statements during his pre-trial detention were taken under duress.
It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
For these reasons, the Court, unanimously,
DECLARES ADMISSIBLE, without prejudging the merits, the applicant’s complaints concerning his right to a fair hearing within a reasonable time by an independent and impartial tribunal;
DECLARES INADMISSIBLE the remainder of the application.
Michael O’Boyle Elisabeth Palm
Registrar President