PROCEDURE

The case originated in applications (nos. 29360/95 and 29361/95) 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 two Turkish nationals, Mrs Gülşen Ketenoğlu and Mr Halil Yasin Ketenoğlu (“the applicants”), on 15 May 1995.

The applicants were represented by Mr Mehmet Aydın, a lawyer practising in Antalya (Turkey). The Turkish Government did not designate an Agent for the purposes of the proceedings before the Court.

The applicants alleged, in particular, that the criminal proceedings brought against them had not been concluded within a “reasonable time” and that their right to a fair hearing had been breached on account of their conviction by the Ankara Martial Law Court which lacked independence and impartiality.

The applications were transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11).

The applications were allocated to the First Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1 of the Rules of Court. Mr Rıza Türmen, the judge elected in respect of Turkey, withdrew from sitting in the case (Rule 28). The Government accordingly appointed Mr Feyyaz Gölcüklü to sit as an ad hoc judge, in his place (Article 27 § 2 of the Convention and Rule 29 § 1).

By a decision of 11 January 2001, the Chamber decided to join the applications and declared them admissible.

The applicants and the Government each filed observations on the merits (Rule 59 § 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

A. Arrest and detention of the applicants

The applicants, a married couple, Halil Yasin and Gülşen Ketenoğlu were arrested by police officers from the Ankara Security Directorate on 7 and 13 November respectively. They were suspected of membership of an illegal organisation, the Dev-Yol (Revolutionary Way).

By decisions of 30 January and 6 February 1981 the Ankara Martial Law Court (sıkıyönetim mahkemesi) remanded the applicants in custody.

B. Trial in the Ankara Martial Law Court

On 26 February 1982 the Military Public Prosecutor filed a bill of indictment with the Martial Law Court against the applicants and 721 other defendants. The public prosecutor accused the applicants of membership of an illegal armed organisation, namely the Dev-Yol, whose object was to undermine the constitutional order and replace it with a Marxist-Leninist regime. He further charged the applicants with having been involved in a number of crimes such as the killing of several individuals, bomb attacks and robberies. The prosecution sought the death penalty under Article 146 § 1 of the Turkish Criminal Code.

By the orders of 11 November and 17 December 1985 the applicants were released pending trial by the Ankara Martial Law Court.

In May 1989 the applicants both fled the country and settled in Germany.

In a judgment of 19 July 1989 the Martial Law Court, composed of two civilian judges, two military judges and an army officer, found the applicants guilty as charged and sentenced Mrs Ketenoğlu to five years and 6 months’ imprisonment and Mr Ketenoğlu to 16 years’ imprisonment for offences under Article 168 §§ 1 and 2 of the Criminal Code. The judgment was pronounced in the aplicants’ absence.

C. Proceedings on appeal

The applicant lodged an appeal with the Military Court of Cassation (askeri yargıtay).

Following promulgation of the Law of 27 December 1993, which abolished the jurisdiction of the martial law courts, the Court of Cassation (yargıtay) acquired jurisdiction over the case and the file was transmitted to it.

On 27 December 1995 the Court of Cassation quashed the applicants’ conviction. It held, under Article 102 of the Turkish Criminal Code, that the criminal proceedings against Mrs Ketenoğlu should be discontinued since the prosecution was time‑barred. The court however considered that Mr Ketenoğlu should have been convicted for offences under Article 146 § 1 of the Turkish Criminal Code. It therefore referred the case to the 6th Chamber of the Ankara Assize Court where the criminal proceedings against Mr Ketenoğlu are still pending.