ALFATLI A OSTATNÍ proti Turecku

FIRST SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 32984/96
by Ali ALFATLI and others

against Turkey

The European Court of Human Rights (First Section) sitting on 23 November 1999 as a Chamber composed of

Mrs E. Palm, President,
Mr L. Ferrari Bravo,
Mr Gaukur Jörundsson,
Mr R. Türmen,
Mr B. Zupančič,
Mr T. Panţîru,
Mr R. Maruste, judges,

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 7, 8, 12, 18, 24 and 25 June 1996 by Ali Alfatlı, Haşim Aydıncak, Nusrat Safa Akyürek, Ahmet Asena, Mahmut Memduh Uyan, İbrahim Levent Saçılanateş, Mehmet Kutlandur, Nevzat Cömert, Özgür Şahin, Bülent Fonta, Hüseyin Cihan, Hasan Yorulmaz, Ahmet Kirami Kılınç, Mehmet Engin Höke, Mustafa Aslan, and Sedat Göçmen against Turkey and registered on 17 September 1996 under file no. 32984/96;

Having regard to the report provided for in Rule 49 of the Rules of Court;

Having deliberated;

Decides as follows:

THE FACTS

The applicants are Turkish nationals. They are represented before the Court by Mr Zeki Tavşancıl, Mr Ahmet Atak and Mr Mehdi Bektaş, lawyers practising in Ankara.

The facts of the case, as submitted by the applicants, may be summarised as follows.

A. Particular circumstances of the case

Between 1980 and 1985 the applicants were arrested and placed in police custody. They were accused of membership of an illegal organisation, the Dev-Yol (Revolutionary Way). The Ankara Martial Law Court (sıkıynetim mahkemesi) ordered the applicants’ detention on remand.

On 26 February 1982 the Military Public Prosecutor filed a bill of indictment with the Ankara Martial Law Court setting out charges against seven hundred and twenty-three 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 Articles 146 § 1 and 168 § 2 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 fifteen 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 Ahmet Asena, Nusrat Safa Akyrek and Haim Aydıncak should be discontinued on the ground that the prosecution was time-barred. The court quashed Sedat Gmen’s conviction and referred the case to the Ankara Assize Court (aır ceza mahkemesi). The criminal proceedings are still pending before the latter court. The Court of Cassation upheld the other applicants’ conviction.

The beginning and the end of the criminal proceedings instituted against the applicants are as follows:

B. Relevant domestic law

1. Section 168 of the Turkish Criminal Code

<Translation>

“Any person who, with the intention of committing the offences defined in Articles..., forms an armed gang or organisation or takes leadership ... or command of such a gang or organisation or assumes some special responsibility within it shall be sentenced to not less than fifteen years’ imprisonment.

The other members of the gang or organisation shall be sentenced to not less than five and not more than fifteen years’ imprisonment.”

2. Article 146 § 1 of the Turkish Criminal Code

<Translation>

“Whosoever shall attempt to alter or amend in whole or in part the Constitution of the Turkish Republic or to effect a coup d’état against the Grand National Assembly formed under the Constitution or to prevent it by force from carrying out its functions shall be liable to the death penalty.”

COMPLAINTS

1. The applicants Haşim Aydıncak, Nusrat Sefa Akyürek, Ahmet Asena, Mahmut Memduh Uyan, İbrahim Levent Saçılanateş, Bülent Fonta, Hüseyin Cihan, Hasan Yorulmaz, Ahmet Kirami Kılınç, Mehmet Engin Höke, Mustafa Aslan, Sedat Göçmen complain that they were subjected to various forms of ill-treatment during their pre-trial detention. They do not invoke any Articles of the Convention and do not specify the treatment they suffered during their pre-trial detention.             

2. The applicants all complain that the criminal proceedings brought against them were not determined within a reasonable time as required by Article 6 § 1 of the Convention.

3. The applicants all allege under Article 6 § 1 of the Convention that their right to a fair hearing was breached since the courts convicted them on the basis of the statements they had made to the police under duress.

4. The applicants Haşim Aydıncak, Nusrat Sefa Akyürek, Ahmet Asena, Mahmut Memduh Uyan, İbrahim Levent Saçılanateş, Hüseyin Cihan, Hasan Yorulmaz, Ahmet Kirami Kılınç, Mehmet Engin Höke, Mustafa Aslan, Sedat Göçmen submit under Article 6 § 1 of the Convention that their right to a fair hearing was breached as they were tried by the Martial Law Court which lacked independence and impartiality.

5. The applicant Sedat Göçmen further alleges under Article 6 § 3 (b) of the Convention that he was deprived of his right to have adequate time and facilities for the preparation of his defence.

THE LAW

1. The applicants all complain that the criminal proceedings brought against them were not determined within a reasonable time as required by Article 6 § 1 of the Convention.

The applicants maintain under Article 6 § 1 of the Convention that their right to a fair hearing was breached since the courts convicted them on the basis of the statements they had made to the police under duress.

The applicants Haşim Aydıncak, Nusrat Sefa Akyürek, Ahmet Asena, Mahmut Memduh Uyan, İbrahim Levent Saçılanateş, Hüseyin Cihan, Hasan Yorulmaz, Ahmet Kirami Kılınç, Mehmet Engin Höke, Mustafa Aslan, Sedat Göçmen submit under Article 6 § 1 of the Convention that their right to a fair hearing was breached as they were tried by the Martial Law Court which lacked independence and impartiality.

The applicant Sedat Göçmen further alleges under Article 6 § 3 (b) of the Convention that he was deprived of his right to have adequate time and facilities for the preparation of his defence.

The Court considers that it cannot, on the basis of the case file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of its Rules of Procedure, to give notice of them to the respondent Government.

2. The applicants Haşim Aydıncak, Nusrat Sefa Akyürek, Ahmet Asena, Mahmut Memduh Uyan, İbrahim Levent Saçılanateş, Bülent Fonta, Hüseyin Cihan, Hasan Yorulmaz, Ahmet Kirami Kılınç, Mehmet Engin Höke, Mustafa Aslan, Sedat Göçmen complain that they were subjected to various forms of ill-treatment during their pre-trial detention. They do not invoke any Articles of the Convention and do not specify the treatment they suffered during their pre-trial detention.

The Court points out that the declaration made by Turkey on 28 January 1987, pursuant to former Article 25 of the Convention, by which Turkey recognised the Commission’s competence to examine individual applications, extends only to facts and judgments based on events occurring after that date (cf. the Mitap and Müftüoğlu v. Turkey judgment of 25 March 1996, Reports 1996-II, p. 410, § 25). In this respect, the Court notes that the applicants’ above complaints relate to events which occurred before 28 January 1987.

It follows that this part of the application must be rejected as being incompatible ratione temporis with the provisions of the Convention within the meaning of Article 35 § 3.

For these reasons, the Court, unanimously,

DECIDES TO ADJOURN the examination of the applicants’ complaints that their right to a fair hearing within a reasonable time by an independent and impartial tribunal was breached and the applicant Sedat Göçmen’s further complaint that he was deprived of his right to have adequate time and facilities for the preparation of his defence.

DECLARES INADMISSIBLE the remainder of the application.

Michael O’Boyle Elisabeth Palm
Registrar President