THIRD SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 35968/02 
by Muzaffer BAŞAR and Others 
against Turkey

The European Court of Human Rights (Third Section), sitting on 1 June 2006 as a Chamber composed of:

Mr B.M. Zupančič, President, 
 Mr J. Hedigan, 
 Mr R. Türmen, 
 Mr C. Bîrsan, 
 Mr V. Zagrebelsky, 
 Mrs A. Gyulumyan, 
 Mr David Thór Björgvinsson, judges, 
and Mr V. Berger, Section Registrar,

Having regard to the above application lodged on 8 August 2002,

Having deliberated, decides as follows:

THE FACTS

The applicants, Mr Muzaffer Başar, Mr Ahmet Yazıharman, Mr Bayram Altunoğlu, Mr İsa Elal, Mr Bayram Kazaklı, Mr Cafer Sağır and Mr Rıdvan Gülfidan, are Turkish nationals. They are represented before the Court by Ms S. Gürcan, a lawyer practising in Istanbul.

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

On different dates between 1979 and 1983 the applicants were arrested on suspicion of membership in an illegal organisation and subsequently detained on remand within the context of criminal proceedings brought against them.

In 1984 and 1986 the applicants were all released pending trial.

On 27 September 1984 the Istanbul Martial Law Court convicted the applicants under Articles 146 and 168 of the Criminal Code.

On 6 June 1990 the Military Court of Cassation quashed the judgment of the first-instance court.

On 6 April 1993 the Istanbul Martial Law Court convicted Muzaffer Başar, Ahmet Yazıharman, Bayram Altunoğlu, İsa Elal and Bayram Kazaklı under Articles 146 and 168 of the Criminal Code. The court acquitted Cafer Sağır and Rıdvan Gülfidan of the charges against them.

On an unspecified date Muzaffer Başar, Ahmet Yazıharman and Bayram Altunoğlu appealed against the judgment of 6 April 1993.

Following promulgation of the Law of 26 December 1994 abolishing the jurisdiction of the martial law courts, the Court of Cassation acquired jurisdiction over the case and the case file was sent to it.

On 27 September 2000 the Court the Court of Cassation ordered that the criminal proceedings against Muzaffer Başar, Ahmet Yazıharman and Bayram Altunoğlu be terminated on the ground that the statutory time limit under Articles 102 and 104 of the Turkish Criminal Code had expired.

On 14 January 2002 the decision of the Court of Cassation was deposited with the registry of the Üsküdar Assize Court which functioned as the Istanbul Martial Law Court before the promulgation of the Law of 26 December 1994.

On 28 May 2002 the applicants’ representative received a copy of the Court of Cassation’s decision.

İsa Elal, Bayram Kazaklı, Cafer Sağır and Rıdvan Gülfidan allege that on the judgment of 6 April 1993 was never served on them and that, therefore, the judgment did not become final in their respect. The applicants submitted to the Court a document drawn up by the registry of the Üsküdar Assize Court in support of their allegation.

COMPLAINTS

The applicants complain under Article 5 of the Convention that they were unlawfully deprived of their liberty as there was no reasonable suspicion for their arrest and that they were held in police custody for an excessive length of time. They further allege that there were no remedies in domestic law to challenge the lawfulness of their detention in police custody.

The applicants complain under Article 6 § 1 of the Convention that the proceedings against them were not concluded within a reasonable time.

The applicants complain under Article 6 § 3 (a), (b) and (d) of the Convention that they were not informed of the nature of the accusations against them until the end of their detention in police custody.

THE LAW

1.  The applicants allege under Article 5 of the Convention that their arrest was unlawful as there was no reasonable suspicion to justify the arrest and that they were held in police custody for an excessive length of time without being brought before a judge.

The Court observes that the applicants’ detention in police custody ended on different dates between 1979 and 1983.

It recalls that it can only consider the period that elapsed after 28 January 1987, the date on which Turkey recognised the competence of the Convention organs to examine individual petitions. The Court notes that the above complaint concerns a period prior to 28 January 1987.

Consequently, this part of the application is outside the Court’s competence ratione temporis and must accordingly be rejected as being incompatible with the provisions of the Convention, within the meaning of Article 35 § 3 of the Convention.

2.  The applicants complain under Article 6 § 1 of the Convention that the proceedings against them were not concluded within a reasonable time. They further complain under Article 6 § 3 (a), (b) and (d) of the Convention that they were not informed of the nature of the accusations against them until the end of their detention in police custody.

a)  As regards the complaints brought by the applicants Muzaffer Başar, Ahmet Yazıharman and Bayram Altunoğlu, the Court reiterates that where an applicant is entitled to be served ex officio with a written copy of the final domestic decision, the object and purpose of Article 35 § 1 of the Convention are best served by counting the six-month period as running from the date of service of the written judgment. Where, as in the present case, the domestic law does not provide for service, the date on which the final domestic decision was deposited with the registry of the Üsküdar Assize Court should be taken as the starting-point, the date on which the applicants were definitively able to find out about the content of the final decision at the latest (see Ipek v. Turkey (dec.), no. 39706/98, 7 November 2000, and Yavuz and Others v. Turkey (dec.), no. 48064/99, 1 February 2005). The decision of the Court of Cassation was deposited with the registry of the first-instance court on 14 January 2002, whereas the application was introduced with the Court on 8 August 2002.

It follows that the complaints under Article 6 §§ 1 and 3 brought by Muzaffer Başar, Ahmet Yazıharman and Bayram Altunoğlu have been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

b)  Regarding the complaint under Article 6 § 3 brought by the applicants İsa Elal, Bayram Kazaklı, Cafer Sağır and Rıdvan Gülfidan, the Court observes that the Istanbul Martial Law Court’s judgment of 6 April 1993 did not become final as it was not served on these applicants. The Court is consequently not in a position to make an overall examination of the proceedings against the applicants and considers that it cannot speculate either on what the national courts will decide or on what the outcome of a second appeal on points of law might be since that remedy would still be available to the applicants if they were to consider that their trial had ultimately infringed the rights on which they relied before the Court (see Dikme v. Turkey, no. 20869/92, § 111, ECHR 2000-VIII).

It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

c)  Regarding the complaint under Article 6 § 1 brought by the applicants İsa Elal, Bayram Kazaklı, Cafer Sağır and Rıdvan Gülfidan, the Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

For these reasons, the Court unanimously

Decides to adjourn the examination of the complaint under Article 6 § 1 of the Convention concerning the length of criminal proceedings brought by the applicants İsa Elal, Bayram Kazaklı, Cafer Sağır and Rıdvan Gülfidan;

Declares the remainder of the application inadmissible.

Vincent Berger Boštjan M. Zupančič Registrar President

BAŞAR AND OTHERS v. TURKEY DECISION


BAŞAR AND OTHERS v. TURKEY DECISION