PROCEDURE

The case originated in an application (no. 29281/95) 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 a Turkish national, Mr Halil İbrahim Arı (“the applicant”), on 22 August 1995.

The applicant, who had been granted legal aid, was represented by Mr Zeki Tavşancıl, a lawyer practising in Ankara (Turkey). The Turkish Government did not designate an Agent for the purposes of the proceedings before the Court.

The applicant alleged, in particular, that the criminal proceedings brought against him had not been concluded within a “reasonable time” and that his right to a fair hearing had been breached on account of his conviction by the Ankara Martial Law Court which lacked independence and impartiality. He further submitted that he had been convicted on the basis of the statements he had made to the police under duress and that his political opinions had constituted the basis for his conviction.

The application was 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 application was 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 2000, the Chamber retained the applicant’s complaints concerning his right to a fair hearing within a reasonable time by an independent and impartial tribunal and declared the remainder of his complaints inadmissible.

The applicant 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 applicant

On 11 June 1981 police officers from the Bursa Security Directorate arrested the applicant on suspicion of membership of an illegal organisation, the Dev-Yol (Revolutionary Way).

On 27 July 1981 the applicant was brought to the Sivas Public Prosecutor’s office where he conceded the accusations against him and explained his role in the Dev-Yol.

On 3 September 1981, following his transfer to Ankara, the applicant was questioned by police officers at the Ankara Security Directorate. He confirmed his statements concerning his involvement in the activities of the Dev-Yol.

On 16 September 1981 the applicant was taken to the Ankara Military Public Prosecutor’s office where the statements he had made at the Ankara Security Directorate were read to him. He made some amendments to his statements and confirmed that they were true. He explained in detail his involvement in the Dev-Yol.

On 18 September 1981 the Ankara Martial Law Court (sıkıyönetim mahkemesi) remanded the applicant 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 applicant and 722 other defendants. The Public Prosecutor accused the applicant 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. The Public Prosecutor alleged that the applicant had been involved in numerous illegal activities of the Dev-Yol, such as collection of money for expenditures of the organisation, supplying weapons to the organisation and giving orders to the militants under his command for robberies, murder and bombings. He maintained that the applicant had also been involved in the armed clashes with the police and opponent groups and had organised illegal meetings in Bursa. The prosecution sought the death penalty under Article 146 § 1 of the Turkish Criminal Code.

In the meantime, the Ankara Martial Law Court decided that the criminal proceedings brought against the applicant by the Gölcük Martial Law Public Prosecutor’s office on 30 October 1981 and the Erzincan Military Public Prosecutor’s office on 23 December 1981 should be joined to the criminal proceedings instituted by the Ankara Military Public Prosecutor’s office.

On 18 March 1987 the Martial Law Court ordered the applicant’s release pending trial.

In a judgment of 19 July 1989 the Martial Law Court, composed of two civilian judges, two military judges and an army officer, convicted the applicant of membership of an illegal organisation, the Dev-Yol, and of having a leading role in that organisation. It sentenced him to 13 years and 4 months’ imprisonment, debarred him from employment in the civil service and placed him under judicial guardianship for offences under Articles 59 and 168 § 1 of the Turkish Criminal Code and Article 17 of Law no. 1402. The court acquitted the applicant of the other charges.

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 applicant’s sentence. It held that the Martial Law Court had wrongly applied Article 17 of Law no. 1402 to the applicant’s case. It considered however that this error did not require the re-trial of the applicant. The court revised the judgment of the Martial Law Court and sentenced the applicant to 10 years’ imprisonment.