PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 29986/96

by Ali DARICI

against Turkey

The European Court of Human Rights (First Section) sitting on 2 February 1999 as a Chamber composed of

Mrs E. Palm, President,

Mr L. Ferrari Bravo,

Mr G. Jörundsson,

Mr R. Türmen,

Mr B. Zupančič,

Mr T. Pantiru,

Mr R. Maruste, Judges,

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 17 January 1996 by Ali DARICI  against Turkey and registered on 26 January 1996 under file no. 29986/96;

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

Having deliberated;

Decides as follows:

 

THE FACTS

The applicant, who was born in 1967, is a Turkish citizen resident in Edirne. He is represented before the Court by Mr Ali Üstündağ, a trainee lawyer registered with the İzmir Bar Association.

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

The applicant is was a non-commissioned officer in the Turkish armed forces. On 14 October 1994 the Lieutenant Colonel convicted the applicant of disobedience to superior orders, which is an offence against military discipline, and sentenced him to 21 days' of confinement pursuant to Section 171 of the Military Criminal Code.  His sentence was executed in the Prison of Army Corps.

The applicant complained to his military superiors about the penalty imposed on him by order of the Lieutenant Colonel. He claimed that as he was a non-commissioned officer, the Lieutenant Colonel was not competent to convict him according to the Rules of Procedure of the Turkish armed forces. His claims were refused on the ground that the decision of 14 October 1994 was given in conformity with the Military Criminal Code.

The applicant applied to the Military High Administrative Court for the annulment of his conviction. On 26 April 1995 the court found against the applicant on the ground that Article 129 of the Constitution and the Military High Administrative Court Code of Procedure place limits on the right to challenge disciplinary sanctions imposed by military superiors.

On 4 October 1995 the Military High Administrative Court dismissed the applicant's request for rectification of the decision of 26 April 1995.

On 31 August 1995 the applicant was again convicted of disobeying to military disciplinary rules and was sentenced to 14 days' confinement by the Lieutenant Colonel. The applicant filed a complaint with his military superiors but his claims were rejected.

COMPLAINTS

1. The applicant complains that he was sentenced to twenty-one days’ imprisonment by his military superior. He further alleges that he was not tried by a competent court. In this respect he invokes Article 5 §1 of the Convention,

2.  The applicant further alleges under Article 3 of the Convention that some of the penalties provided for in the Military Criminal Code constitute inhuman and degrading treatment of soldiers. He refers in this respect to sanctions such as being allowed only bread and water or being ordered to dig holes.

3. The applicant further submits under Article 7 of the Convention that he was not convicted under the applicable legislation.

 

THE LAW

1. The applicant complains that he was sentenced to twenty-one days’ imprisonment by his military superior. He further alleges that he was not tried by a competent court. In this respect he invokes Article 5 §1 of the Convention.

The Court considers that it cannot, on the basis of the file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 para. 3 (b) of the Rules of Procedure, to give notice of it to the respondent Government.

2.  The applicant further alleges under Article 3 of the Convention that some of the penalties provided for in the Military Criminal Code constitute inhuman and degrading treatment of soldiers. He refers in this respect to sanctions imposed on soldiers such as being allowed only bread and water or being ordered to dig holes.

The Court recalls that according to Article 34 of the Convention the only persons entitled to introduce an individual application are those who can claim to be, individually, the victims of a violation of the human rights and fundamental freedoms guaranteed in the Convention. It is the established case-law of the Court that the Convention cannot be used to examine in abstracto the conformity of domestic legislation with the provisions of the Convention. It is only when the application of legislation violates any of the applicant's human rights and fundamental freedoms guaranteed in the Convention that such measure is subject to a review in accordance with the Convention (No. 6959/75, Dec. 19 May 1976, D.R. 5, p. 103).

The Court notes in this respect that the applicant's sentence to confinement is not one of the penalties that he complains of under Article 3 of the Convention. The arguments submitted by the applicant in order to show that he is affected by this legislation are drafted in a rather general way.

In these circumstances the Court concludes that the applicant is not directly affected by these provisions and therefore cannot claim to be a victim of any violation of the Convention in this respect. 

It follows that this part of the application must be rejected as being manifestly ill-founded within the meaning of Article 35 §3 of the Convention.

3. The applicant further submits under Article 7 of the Convention that he was not convicted under the applicable legislation.

The Court notes that in the present case, the applicant was convicted and sentenced pursuant to Section 171 of the Military Criminal Code. The applicant submits no evidence to show that this provision does not refer to the type of act of which he was accused. Therefore, there is no appearance of a violation of Article 7 of the Convention.

 

It follows that this part of the application must be declared inadmissible as being manifestly ill-founded within the meaning of Article 35 para.3 of the Convention.

For these reasons, the Court,

DECIDES TO ADJOURN the examination of the applicant's complaint that he was not lawfully detained after conviction by a competent court;

unanimously,

DECLARES INADMISSIBLE the remainder of the application.

Michael O’Boyle Elisabeth Palm 
 Registrar President

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