Müftüoglu and Mitap v. Turkey



AS TO THE ADMISSIBILITY OF

Application No. 31851/96 Application No. 31852/96

by Oguzhan MÜFTÜOGLU by Nasuh MiTAP

against Turkey against Turkey

The European Commission of Human Rights (Second Chamber) sitting

in private on 21 May 1997, the following members being present:

Mrs. G.H. THUNE, President

MM. J.-C. GEUS

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

A. ARABADJIEV

Ms. M.-T. SCHOEPFER, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the applications introduced on 31 May 1996 by

Oguzhan MÜFTÜOGLU and Nasuh MiTAP against Turkey and registered on

12 June 1996 under file Nos. 31851/96 and 31852/96;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicants are Turkish citizens. Oguzhan Müftüoglu, born in

1944, resides in Istanbul and Nasuh Mitap, born in 1947, resides in

izmir. They are represented before the Commission by Ahmet Atak, a

lawyer practising in Ankara.

The facts of the case as submitted by the applicants may be

summarised as follows.

The applicants, accused of being members of the organisation

Dev - Yol (Revolutionary Way), were taken into police custody in Ankara

on 23 January 1981 and 22 January 1981 respectively, and were

subsequently detained on remand upon decision of the Ankara Court-

Martial on 23 April 1981.

The applicants lodged a criminal complaint with the military

prosecutor attached to the Court-Martial, complaining of acts of

torture that they had suffered at the hands of the Ankara police.

On 8 March 1982, the military prosecutor preferred criminal

charges against the police officer B.P. in the Ankara Court-Martial.

In a judgment of 13 April 1983, the court acquitted B.P., on the ground

that there was insufficient evidence against him.

On 26 February 1982, the military prosecutor filed a bill of

indictment in the Court-Martial against altogether 723 defendants

including the present applicants.

It was alleged that the applicants were members of an illegal

organisation in which they also played a leading role, the aim of which

was to undermine the constitutional order and replace it with a

Marxist-Leninist regime, that they had advocated the need to set up

resistance committees against attacks by extreme right-wing militants,

and that they had instigated a number of violent acts. The prosecution

called for the applicants to be sentenced pursuant to Article 146 of

the Turkish Criminal Code.

In a judgment of 19 July 1989, the Court-Martial in Ankara found

the applicants guilty of the offences as charged, and sentenced them

to life imprisonment.

COMPLAINTS

The applicants complain that they did not have a fair trial as

the courts based their reasoning on statements which they made to the

police under duress, which is contrary to Article 6 para. 1 of the

Convention.

THE LAW

The applicants complain under Article 6 para. 1 (Art. 6-1) of the

Convention that they did not have a fair trial as their statements made

to the police under duress constituted the grounds of the court's

decisions.

However, the Commission recalls that, by virtue of Article 27

para. 1 (b) (Art. 27-1-b) of the Convention, the Commission may not

deal with an application if it contains "substantially the same facts

and complaints" (No. 8206/78, Dec. 10.7.81, D.R. 25, p. 150) as a

former application.

The Commission notes that the applicants, in their previous

applications (Nos. 15530/89 and 15531/89), have presented substantially

the same facts and complaints, supported moreover by copies of the same

decisions. These applications have already been examined by the

Commission and the Court.

It follows that the applications must be rejected in accordance

with Article 27 para. 1 (b) (Art. 27-1-b) of the Convention.

For these reasons, the Commission,

DECIDES TO JOIN APLLICATIONS No. 31851/96 and 31852/96;

unanimously,

DECLARES THE APPLICATIONS INADMISSIBLE.

M.-T. SCHOEPFER G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber