AS TO THE ADMISSIBILITY OF
Applications nos. 29360/95 by Gülşen KETENOĞLU
29361/95 by Halil Yasin KETENOĞLU
The European Court of Human Rights (First Section) sitting on 15 June 1999 as a Chamber composed of
Mrs E. Palm, President,
Mr J. Casadevall,
Mr L. Ferrari Bravo,
Mr B. Zupančič,
Mr T. Pantiru,
Mr R. Maruste, Judges,
Mr F. Gölcüklü, ad hoc Judge,
with 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 15 May 1995 by Gülşen KETENOĞLU and Halil Yasin KETENOĞLU against Turkey and registered on 23 November 1995 under files nos. 29360/95 and 29361/95;
Having regard to the report provided for in Rule 49 of the Rules of Court;
Having regard to the observations submitted by the respondent Government on 18 May 1998 and the observations in reply submitted by the applicants on 25 June 1998;
Decides as follows:
The applicants Gülşen Ketenoğlu (G.K.) and Halil Yasin Ketenoğlu (H.Y.K.) are a married couple. They are Turkish nationals, born in 1957 and 1956 respectively, and living in Hannover, Germany.
They are represented before the Court by Mr Mehmet Aydın, a lawyer practising in Istanbul.
A. Particular circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 13 November 1980 G.K. and on 7 November 1980 H.Y.K. were arrested by policemen in Ankara on account of membership of an illegal organisation, the Dev-Yol (Revolutionary Way), whose aim was to undermine the constitutional order and replace it with a Marxist-Leninist regime.
On 30 January 1981 the Ankara Martial Law Court ordered G.K.’s detention on remand. It ordered H.Y.K.’s detention on remand on 6 February 1981.
On 26 February 1982 the Military Prosecutor filed a bill of indictment with the Ankara Martial Law Court against 723 defendants altogether, including the applicants.
On 11 November 1985 H.Y.K. and on 17 December 1985 G.K. were 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. It continued to deal with these cases even after the lifting of martial law, pursuant to a provision in Article 23 of the Martial Law Act (no. 1402) of May 1971, as amended on 19 September 1982.
On 12 October 1987 the applicants contested before the Martial Law Court that it was unconstitutional to be tried by a martial law court after the lifting of martial law. The court dismissed their objections on the same day.
On an unspecified date the Military Public Prosecutor filed a new bill of indictment against H.Y.K. He requested the Martial Law Court to sentence the applicant to death, pursuant to Article 146 § 1 of the Turkish Criminal Code, and to order his detention on remand.
In May 1989 the applicants both left the country illegally and went to Germany.
On 19 July 1989 the Martial Law Court sentenced G.K. in her absence to 5 years and 6 months’ imprisonment under Article 168 § 2 of the Turkish Criminal Code. It sentenced H.Y.K. in his absence to 16 years’ imprisonment. The applicants appealed against the court’s judgment.
Following the applicants’ appeal the case was referred to the Military Court of Cassation. Pursuant to a law promulgated on 27 December 1993, the case file was transferred to the Court of Cassation.
On 28 December 1995 the Court of Cassation upheld G.K.’s conviction. The court quashed H.Y.K.’s conviction and referred the case to the 6th Chamber of the Ankara Assize Court. The proceedings against H.Y.K. are still pending before the latter court with the charges under Article 146 § 1 of the Convention.
B. Relevant domestic law and practice
1. Section 168 of the Turkish Criminal Code
“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 138 of the Turkish Constitution
“Judges shall be independent in the exercise of their functions and shall give judgments in accordance with the Constitution, the law and their own consciences.
No organ, authority or individual shall give orders or instructions, send circulars, offer advice or make suggestions to courts or judges in connection with the exercise of judicial power.
No questions shall be asked, debates held or statements made in the legislative Assembly concerning the exercise of judicial power in a case which is not yet decided.
Legislative and executive organs and the administration shall comply with court decisions; they shall neither alter them in any respect, nor delay their execution.”
3. Article 139 of the Turkish Constitution
“Judges and prosecutors shall not be removed from office or compelled to retire without their consent before the age prescribed by the Constitution, nor shall they be deprived of their salaries, allowances or other rights relating to their status, even as a result of the abolition of a court or post.
Exceptions may be made in cases where a judge or prosecutor is convicted of an offence requiring his dismissal from the profession, where his inability to exercise his functions on account of ill-health is positively established or where his continuation in the profession is found to be undesirable.”
4. Article 145 of the Turkish Constitution
“... Martial Law Courts shall be responsible for dealing with offences under special laws committed by civilians against military personnel and offences committed against military personnel in the course of their lawful duties or on scheduled military premises.
The offences and persons falling within the jurisdiction of Martial Law Courts in time of war or under martial law, the composition of Martial Law Courts and the appointment, where necessary, of judges and prosecutors from the ordinary courts to Martial Law Courts shall be regulated by law.
The composition and functioning of military judicial organs, matters relating to the status of military judges and relations between military judges acting as military prosecutors and the commanders under whom they serve shall be regulated by law in accordance with the principles of the independence of the courts and the security of tenure of the judiciary and the requirements of military duty. Relations between military judges and the commanders under whom they serve with regard to military duties other than judicial functions shall also be regulated by law.”
5. Article 11 § 1 of the Martial Law Act
“The Defence Ministry shall convene a sufficient number of martial law courts in areas where martial law applies...”
6. Article 11 § 4 of the Martial Law Act
“Judicial advisers, military judges and military prosecutors attached to the Martial Law Court are appointed, with the agreement of the Chief of Staff, from among the candidates nominated by a committee composed of the personnel director and the legal adviser to the office of the Chief of Staff, the personnel director and the legal adviser to the army corps to which the judge in question belongs and finally the Head of Military Legal Affairs at the Ministry of Defence.”
7. Article 4 of the Act Governing the Formation and Proceedings of Martial Law Courts
“The officers serving on Martial Law Courts and their alternates shall be appointed, in December, by the commander or the superior of the military establishment within which a Martial Law Court is formed, from among the officers of that establishment. The officers thus appointed are irremovable for one year.”
8. Article 11 § 6 of the Martial Law Act
“The army officers serving on Martial Law Courts are appointed, on the proposal of the Chief of Staff, according to the procedure for appointing military judges...”
9. Article 12 of the Law on Military Judges
“The suitability of military judges for promotion, priority within the same grade and progress up the career hierarchy is determined on the basis of assessments.
A) There are three types of assessment certificates, which are the assessment certificate for generals, the assessment certificate for officers (sub-lieutenant/colonel) and the professional assessment certificate.
B) The superiors in the hierarchy authorised to issue an assessment certificate for officers and to assess officers:
First superior in the hierarchy: the commander or superior of the military establishment to which the judge in question belongs and in which a Martial Law Court is formed.
Second superior in the hierarchy: the commander or the superior immediately above the first superior in the hierarchy.
Third superior in the hierarchy: the commander or the superior immediately above the second superior in the hierarchy...”
10. Article 29 of the Military Judges Act
“The Minister of Defence may apply the following disciplinary sanctions to military judges, after hearing their defence:
- Written warning...;
The applicants contend that the criminal proceedings brought against them were not concluded within a “reasonable time” as required by Article 6 § 1 of the Convention.
They maintain under Article 6 § 1 of the Convention that their right to a fair hearing by an independent and impartial tribunal was breached as they were tried by the Martial Law Court which lacked these qualities.
The applications were introduced as separate applications on 15 May 1995 and registered on 23 November 1995.
On 4 March 1998 the Commission decided to communicate the applicants’ complaints concerning the length and fairness of the criminal proceedings before the Martial Law Court to the respondent Government and to declare the remainder of the applications inadmissible.
The Government’s written observations were submitted on 18 May 1998. The applicants replied on 25 June 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.
On 15 June 1999 the Court ordered the joinder of the applications pursuant to Rule 43 § 1 of Rules of Court.
The applicants complain that the criminal proceedings brought against them were not concluded within a “reasonable time” and that their right to a fair hearing was breached as they were tried by the Martial Law Court which lacked independence and impartiality. They invoke Article 6 § 1 of the Convention which provides, in so far as relevant, as follows:
“1. 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 primarily 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 facts or events that have occurred since 28 January 1987.
The Court notes that the question arises whether or not it can be considered to be competent as from 28 January 1987 to deal with each of the complaints submitted, bearing in mind the fact that on 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the instant case fell to be examined by itself in accordance with the provisions of that Protocol. 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 claim that the length of the criminal proceedings brought against the applicants 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 applicants were charged. They maintain that the courts dealt with a trial involving seven hundred and twenty three defendants, including the applicants, whose activities and connections 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 five hundred and twelve hearings, at a rate of three per week. The investigation, during which all the accused were questioned, lasted five years. The Public Prosecutor, to whom the file was sent on 11 November 1987, was not able to complete his one thousand seven hundred and sixty-six pages of written submissions before 23 March 1988. The oral hearings, which began on 11 May 1988, lasted ten months. Lastly, the file comprised approximately one thousand loose-leaf binders and the summary of the judgment ran to no fewer than two hundred and sixty-four pages. The Government claim that these circumstances explained the length of the proceedings and that no negligence or delay was imputable to the judicial authorities.
The applicants observe in reply that they were held in detention on remand for three years and that for fifteen to eightteen years the courts were unable to deliver a final judgment on their case. The Government’s argument that the length of the proceedings could not be considered unreasonably long on account of the complexity of the case and of the large number of the accused cannot justify the length of the proceedings which lasted fifteen to eightteen years.
The applicants further allege that during this period they were placed in an ambiguous situation as a result of which they could not continue their education and the first applicant was not allowed to practise as a teacher and the second applicant was obliged to leave his country. They finally contend that the respondent Government should have organised their judicial system and recruited a sufficient number of prosecutors and judges in order to comply with the “reasonable time” requirement enshrined in Article 6 § 1 of the Convention.
The applicants also submit their right to fair hearing by an independent and impartial tribunal was breached as they were tried by the Martial Law Cour. They contend that the preliminary investigation of the case was conducted by policemen and public prosecutors under the command of the Principal Military Public Prosecutor at the Ankara Martial Law Court. They maintain that the Martial Law Court was composed of two military judges, two civilian judges and an army officer. The army officer who has no legal training is accountable to the commander of the state of martial law. The two military judges on the bench of the court are servicemen who belong to the army and they take orders from the executive. They are subject to military discipline and assessment reports are compiled on them by the army for that purpose.
The applicants further claim that throughout the criminal proceedings against them, a military judge, usually a colonel, presided over the Martial Law Court and that the military judges along with an army officer were in the majority on the bench.
The respondent Government submit in reply that the two military judges and the two civilian judges sitting in the Martial Law Court enjoy the guarantees of judicial independence and immunity laid down in the Constitution. The sole task of the army officer on the bench is to ensure the proper functioning of the hearing and he has no other judicial power.
The Government further point out that the applicants were charged with an offence which was committed while martial law was in force and they claim that in certain circumstances civilians could also be tried by special courts. The Government further submit that the procedure for the appointment and the assessment of the military judges sitting in the Martial Law Courts and the safeguards they enjoyed in the performance of their judicial duties perfectly satisfied the criteria laid down by the Court’s case-law on the subject.
The Court considers, in the light of the parties’ submissions, that the case raises complex issues of law and of fact under the Convention, the determination of which should depend on an examination of the merits of the application. The Court concludes, therefore, that 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.
For these reasons, the Court, unanimously,
DECIDES TO JOIN THE APPLICATIONS,
DECIDES TO JOIN TO THE MERITS THE QUESTION CONCERNING THE BEGINNING OF ITS COMPETENCE RATIONE TEMPORIS,
DECLARES THE APPLICATION ADMISSIBLE, without prejudging the merits of the case.
O’Boyle Elisabeth Palm
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