SECOND SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 38370/02 
by Bayram YILMAZ and Others 
against Turkey

The European Court of Human Rights (Second Section), sitting on 19 September 2006 as a Chamber composed of:

Mr J.-P. Costa, President
 Mr A.B. Baka
 Mr I. Cabral Barreto
 Mr R. Türmen
 Mr M. Ugrekhelidze
 Mrs A. Mularoni, 
 Ms D. Jočienė, judges
and Mrs S. Dollé, Section Registrar,

Having regard to the above application lodged on 14 August 2002,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together.

Having regard to the partial decision of 25 August 2005,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The applicants, MM. Bayram Yılmaz and Seyfettin Yıldız, are Turkish nationals who were born in 1963 and 1955 respectively and live in Adana. They were represented before the Court by MM. M. Çinkiliç and K. Derin, lawyers practising in Adana.

A.  The circumstances of the case

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

On 17 October 1994 the first applicant was taken into police custody on suspicion of aiding and abetting an illegal organisation, namely the Kurdistan Workers’ Party (“the PKK”) and was subsequently placed in detention on remand.

The Public Prosecutor at the Konya State Security Court initiated criminal proceedings against him and twelve others. He requested that the applicant be convicted and sentenced under Article 168 § 2 of the Criminal Code and Article 5 of Law no. 3713.

On 19 January 1995 the trial commenced before the Konya State Security Court against twenty-seven persons, including the first applicant.

On 30 September 1995 police officers from the Adana Security Directorate apprehended the second applicant. On 23 October 1995 the Public Prosecutor at the Konya State Security Court filed an indictment charging him with membership of an illegal organisation.

On 30 October 1995 the proceedings against the second applicant, together with ten others, commenced before the Konya State Security Court.

On 5 March 1996 the court joined the second applicant’s case to the first applicant’s case pending before a different chamber of the court.

On 4 June 1996 two other cases were joined to the applicants’ proceedings.

On 13 November 1996 the court acquitted the first applicant on account of lack of evidence. Moreover, it convicted the second applicant and sentenced him to twelve years and six months’ imprisonment.

While the case was pending at the appeal stage, on 19 May 1997, after the promulgation of Law no. 4210, which abolished the Konya State Security Court, the case-file was transferred to the Adana State Security Court.

On 26 October 1998 the Court of Cassation quashed the decision of the State Security Court for procedural reasons.

The first hearing before the Adana State Security Court took place on 14 January 1999. The court took the statements of some of the accused concerning the Court of Cassation’s decision to quash the judgment of 13 November 1996.

At the hearing of 25 February 1999 and during the following two hearings the other accused submitted their comments on the decision of the Court of Cassation. According to the minutes, when some of the accused wanted to read out loud their written defence statements the court informed them that the examination of the merits would be carried out once the procedural stage was completed.

On 18 June 1999 the Constitution was amended and the military judges sitting on the bench of State Security Courts were replaced by civilian judges.

At the hearing of 15 July 1999 the civilian judge who had been appointed to replace the military judge sat as a member of the trial court for the first time. Between 15 July 1999 and 5 October 2000 the Adana State Security Court, which was composed of three civilian judges, held ten hearings.

On 7 October 1999 two other cases were joined to the applicants’ proceedings.

At the sixteenth hearing held on 16 November 2000, the number of accused before the court was seventy. The court, composed of three civilian judges, found the applicants guilty as charged. It sentenced the first applicant to three years and nine months’ imprisonment and the second applicant to twelve years and six months’ imprisonment. The applicants appealed.

On 26 January 2001 the court gave an additional decision in which it suspended the proceedings in respect of the first applicant and thirty-two others, in accordance with Law no. 4616 on conditional release, the suspension of proceedings or the execution of sentences in respect of crimes committed before 23 April 1999.

On 25 March 2002 the Court of Cassation decided that the criminal proceedings against the first applicant be terminated on the ground that the statutory time-limit under Article 102 of the Criminal Code had expired. It further decided to uphold the decision of the Adana State Security Court in respect of the second applicant, endorsing the first instance court’s assessment of the evidence and its reasons for rejecting his defence.

B.  Relevant domestic law and practice

The relevant domestic law and practice in force at the material time are outlined in the following judgments: Özel v. Turkey (no. 42739/98, §§ 20-21, 7 November 2002) and Öcalan v. Turkey ([GC], no. 46221/99, § 54, ECHR 2005-...).

COMPLAINTS

The second applicant alleged under Article 6 § 1 of the Convention that he was tried and convicted by a court which did not meet the requirements of independence and impartiality on account of the presence of a military judge on the bench.

Moreover, the applicants complained under Article 6 § 1 of the Convention about the length of the criminal proceedings.

THE LAW

1.  Regarding the second applicant’s complaint concerning the independence and impartiality of the Adana State Security Court, the Government maintained that, by Law no. 4388 of 18 June 1999, amendments were made to remove military judges from the bench of the State Security Courts with a view to complying with the requirements of the Convention. In this connection they pointed out that, in the present case, the military judge sitting on the bench of the Adana State Security Court was replaced by a civilian judge before the accused put forward their submissions on the merits of the case and that the applicant was convicted by a State Security Court which was composed of three civilian judges.

The applicant contested the Government’s arguments. He maintained, in particular, that the Adana State Security Court did not repeat the acts in which the military judge had participated when the latter was replaced by a civilian judge.

The Court has consistently held that certain aspects of the status of military judges sitting as members of the State Security Courts rendered their independence from the executive questionable (see Incal v. Turkey, judgment of 9 June 1998, Reports of Judgments and Decisions 1998-IV, § 68, and Çıraklar v. Turkey, judgment of 28 October 1998, Reports 1998-VII, § 39). The Court also found in Öcalan v. Turkey (cited above, §§ 114-115) that when a military judge participated in one or more interlocutory decisions that continued to remain in effect in the criminal proceedings concerned, the military judge’s replacement by a civilian judge in the course of those proceedings before the verdict was delivered, failed to dissipate the applicant’s reasonably held concern about that trial court’s independence and impartiality, unless it was established that the procedure subsequently followed in the State Security Court sufficiently dissipated that concern.

In the instant case, the Court notes that before his replacement on 15 July 1999, the military judge was present at four hearings where the court carried out some minor procedural acts and the accused merely submitted their comments on the Court of Cassation’s decision to quash the judgment of 13 November 1996. The court did not take the statements of the accused on the merits or hear witnesses. No interlocutory decisions of importance, in particular for the rights of the defence of the applicant, were taken. In this connection, the Court notes that, after the military judge was replaced by a civilian judge, the domestic court held ten more hearings on the merits, during which it again heard the accused, including the applicant. Therefore, taking into account, in particular, the respective importance of the procedural acts which took place before and after the replacement of the military judge, the Court considers that none of the acts in which the military judge participated in the instant case necessitated immediate renewal after his replacement (see, mutatis mutandis, Ceylan v. Turkey (dec.), no. 68953/01, 30 August 2005).

In view of the overall proceedings, the Court finds that, in the particular circumstances of the case, the replacement of the military judge before the end of the proceedings disposed of the applicant’s reasonably held concern about the trial court’s independence and impartiality (see, mutatis mutandis, Sevgi Yılmaz v. Turkey (dec.), no. 62230/00, 20 September 2005).

The Court therefore concludes that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must, therefore, be declared inadmissible.

2.  As regards the applicants’ complaint concerning the length of the proceedings, the Government contended that the case was particularly complex, considering the number of accused and the various cases which were linked to each other. Furthermore, they contended that there was no delay attributable to the judicial authorities.

The applicants contested these arguments.

The Court reiterates that the reasonableness of the length of criminal proceedings is to be assessed in the light of the particular circumstances of the case, including the complexity of the case, the applicant’s conduct and the conduct of the competent authorities (see, among others, Mitap and Müftüoğlu v. Turkey, judgment of 25 March 1996, Reports 1996-II, p. 8, § 32).

As regards the period to be taken into account, the Court finds that the criminal proceedings against the applicants commenced on 17 October 1994 and 30 September 1995 respectively, and ended on 25 March 2002 with the decision of the Court of Cassation. They therefore lasted seven years and five months for the first applicant and six years and six months for the second applicant, over two levels of jurisdiction, which each examined the applicants’ case twice.

The Court considers that the case was complex. It notes that at the beginning of the proceedings the applicants were being tried along with twenty-six and ten others, respectively. After the Court of Cassation quashed the decision of the State Security Court, the proceedings continued with seventy accused. Furthermore, the applicants were accused of being members of an illegal organisation and carrying out terrorist activities.

The Court observes that the period which elapsed between the hearings was approximately one and a half months. Following the appeal requests, on both occasions, the Court of Cassation decided the case in less than one and a half years.

As for the conduct of the authorities, the Court does not observe any period of inactivity that could be attributable to the domestic courts during the conduct of the proceedings.

Having regard to the particular circumstances of the case, and taking into account in particular the overall duration of the proceedings, the Court finds that there has been compliance with the “reasonable time” requirement laid down in Article 6 § 1 of the Convention.

It follows that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must, therefore, be declared inadmissible.

Finally, Article 29 § 3 of the Convention should no longer apply to the present case.

For these reasons, the Court unanimously

Declares the remainder of the application inadmissible.

S. Dollé J.-P. Costa 
 Registrar President

BAYRAM YILMAZ AND OTHERS v. TURKEY DECISION


BAYRAM YILMAZ AND OTHERS v. TURKEY DECISION