PROCEDURE

The case originated in an application (no. 29871/96) against the Republic of Turkey lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Nazmi İletmiş (“the applicant”), on 15 December 1995.

The applicant, who had been granted legal aid, was represented by Mr S. Çınar, a lawyer practising in Diyarbakır. The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court.

The application was allocated to the First Section of the Court (Rule 52 § 1 of the Rules of Court). On 14 December 1999 the Court decided to communicate the application to the Government.

On 1 November 2004 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed Second Section (Rule 52 § 1).

The applicant and the Government each filed observations on the merits (Rule 59 § 1). The parties then replied in writing to each other's observations.

On 1 March 2005, under the provisions of Article 29 § 3 of the Convention, the Court decided to examine the merits of the application at the same time as its admissibility.

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1953. At the time he lodged his application he was living in İzmir.

In 1975 he went to Germany, where he enrolled at the University of Bremen.

In 1979 he married a Turkish national. The applicant and his wife both held residence permits and were employed as social workers. They had two children, one born in 1981 and one in 1986, who attended school in Germany.

In a secret message dated 19 March 1984, the Turkish Ministry of Foreign Affairs informed the Turkish Ministry of Defence that the applicant was a member of the Union of Turkish Students and a sympathiser of the Kurdistan Committee, two organisations active in Bremen. According to the message the applicant had links with HEVRA (the European Organisation of Kurds of Revolutionary Turkey), was one of the leaders of KOMKAR (the Federation of Workers' Associations of Federal Germany) and had taken part in a demonstration organised by left-wing separatists in protest against the military intervention of 12 September 1980.

On 28 March 1984 the Ministry of Defence brought the above-mentioned facts to the attention of the Commander of the 8th district of the state of emergency region of Elazığ province. In a secret message on 3 April 1984 the latter reported the applicant to the military prosecutor's office attached to the headquarters of the Commander of the state of emergency region, which opened a preliminary investigation in respect of activities detrimental to the national interest committed abroad, an offence under Article 140 of the Criminal Code.

On 13 March 1986 the National Assembly lifted the state of emergency in Elazığ province. On 16 April that year the military deputy public prosecutor in charge of the applicant's case accordingly issued a decision of non-jurisdiction and referred the case to the Elazığ public prosecutor, who took over the investigation.

On 12 April 1991 a number of Articles of the Criminal Code, including Article 140, were repealed by Law no. 3713.

On 21 February 1992 the applicant was arrested in Turkey while visiting his family. He was held in police custody for seven days and questioned by the police in İzmir and Istanbul. His passport was confiscated.

On 27 February 1992 the prosecutor at the Istanbul National Security Court, before whom he had been brought, released him but did not return his passport to him.

Following the applicant's arrest his family left Germany to join him in Turkey.

On 14 April 1992 the Elazığ public prosecutor charged the applicant with separatist activities to the detriment of the State and requested the application of Articles 125 and 168 § 1 of the Criminal Code, which made offences respectively of treason and constitution of an armed gang. The prosecutor explained that according to the press the organisations of which the applicant was a member also engaged in armed actions. The accusations concerned the period from 1977 to 1983.

On 16 April 1992 the Elazığ Assize Court (“the Assize Court”) instructed the Ministry of Justice to invite the German authorities to provide information about the activities and institutional nature of the Union of Turkish Students, the Kurdistan Committee and the HEVRA and KOMKAR organisations.

On 2 June 1992, noting that it had not received the information requested, the Assize Court set 14 July 1992 as the date of the hearing. On that date, however, it simply had the case records read out in order to familiarise a substitute judge with the case file. It adjourned the hearing until 24 September 1992 as no reply had yet been received from the Ministry of Justice. The hearing of 24 September and the nineteen subsequent hearings held before the Assize Court – on 12 November and 17 December 1992, 28 January, 11 March, 6 May, 17 June, 9 September, 21 October and 9 December 1993, 3 February, 1 March, 3 May, 30 June, 6 October, 4 November and 27 December 1994, and 21 March, 23 June and 6 October 1995 – all took place without any decisions being taken on the merits, pending a reply from the German authorities, and served only to inform the substitute judges of the content of the case file.

During his trial the applicant applied several times to the provincial governor's office for his passport to be returned, to no avail. He was told that his passport could be handed over to him only if he produced a certificate from the court in which he was standing trial stating that there was no reason why he should not be permitted to leave Turkey.

At the hearing on 3 February 1994 the applicant's lawyer asked for the restraining order preventing his client from leaving Turkey to be lifted. In the alternative, he requested a document attesting that no such restraining order existed.

According to the record of the hearing on 1 March 1994, the Assize Court replied that it had not issued any restraining order and that it could only supply him with a certificate to the effect that the proceedings against him were continuing.

On 18 January 1995 the applicant's lawyer submitted supplementary written pleadings in which, relying on Article 6 § 1 of the Convention, he complained of the excessive length of the proceedings and asked for judgment to be pronounced without waiting any longer for a reply from the German authorities. He contended that, although his client was free, he could neither return to Germany nor have any reasonable prospects in Turkey because of the continuing trial and the restrictions it entailed.

On 17 October 1995 the applicant obtained a certificate from the provincial governor's office, signed by a police officer, stating that the refusal to return the passport was based on a measure which had been ordered by the Ankara Security Directorate and was still valid. The date of and reasons for the measure concerned were not stated in the certificate.

The Assize Court sat on 25 January 1995, 18 April, 20 June, 19 September and 19 December 1996, 21 February, 29 April, 3 July, 18 September and 17 November 1997, and 2 February and 20 April 1998, without making any progress with the proceedings.

At its 5 June 1998 session the Assize Court discovered a letter in the file in which the Ministry of Justice asserted that the information requested of it had been sent in January 1998. Being convinced that this was not so, the Assize Court scheduled another hearing on 14 September 1998, to allow for the transmission of the information concerned. On that date – after the records had been read out – the Assize Court noted that the Ministry had indeed sent a document dated 22 January 1998, stating that the only information the registers of the Turkish Consulate in Hanover contained was an indication that the applicant's sister, one Gülşen İletmiş, was one of the leaders of KOMKAR in Bremen.

On 14 September 1998 the Assize Court issued a warrant for the applicant's arrest.

On 22 March 1999 the applicant's lawyer sought the annulment of the warrant for lack of evidence.

On 23 March 1999 the Assize Court annulled the arrest warrant.

On 1 July 1999 the Assize Court acquitted the applicant for lack of any evidence against him.

Subsequently, on an unspecified date, the applicant was issued with a passport and returned to Germany with his family. He is now living in Turkey with his wife. Their children, who are now of age, live in Germany.