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You are here: BAILII >> Databases >> European Court of Human Rights >> YAGCI AND SARGIN v. TURKEY - 16419/90;16426/90 [1995] ECHR 20 (8 June 1995) URL: http://www.bailii.org/eu/cases/ECHR/1995/20.html Cite as: (1995) 20 EHRR 505, [1995] ECHR 20, 20 EHRR 505

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In the case of Yagci and Sargin v. Turkey (1),

The European Court of Human Rights, sitting, in

accordance with Article 43 (art. 43) of the Convention for the

Protection of Human Rights and Fundamental Freedoms ("the

Convention") and the relevant provisions of Rules of Court A (2),

as a Chamber composed of the following judges:

Mr R. Ryssdal, President,

Mr R. Bernhardt,

Mr Thór Vilhjálmsson,

Mr F. Gölcüklü,

Mr L.-E. Pettiti,

Mr R. Macdonald,

Mr J. De Meyer,

Mr I. Foighel,

Mr B. Repik,

and also of Mr H. Petzold, Registrar,

Having deliberated in private on 27 October 1994 and

27 April and 23 May 1995,

Delivers the following judgment, which was adopted on the

last-mentioned date:

_______________

Notes by the Registrar

1. The case is numbered 6/1994/453/533-534. The first number is

the case's position on the list of cases referred to the Court

in the relevant year (second number). The third number indicates

the case's position on the list of cases referred to the Court

since its creation and the last two numbers indicate its position

on the list of the corresponding originating applications to the

Commission.

2. Rules A apply to all cases referred to the Court before the

entry into force of Protocol No. 9 (P9) and thereafter only to

cases concerning States not bound by that Protocol (P9). They

correspond to the Rules that came into force on 1 January 1983,

as amended several times subsequently.

_______________

PROCEDURE

1. The case was referred to the Court by the European

Commission of Human Rights ("the Commission") on 11 March 1994,

within the three-month period laid down by Article 32 para. 1 and

Article 47 (art. 32-1, art. 47) of the Convention. It originated

in two applications (nos. 16419/90 and 16426/90) against the

Republic of Turkey lodged with the Commission under Article 25

(art. 25) by two Turkish nationals, Mr Nabi Yagci and

Mr Nihat Sargin, on 6 February 1990.

The Commission's request referred to Articles 44 and 48

(art. 44, art. 48) and to the declaration whereby Turkey

recognised the compulsory jurisdiction of the Court (Article 46)

(art. 46). The object of the request was to obtain a decision

as to whether the facts of the case disclosed a breach by the

respondent State of its obligations under Articles 5 para. 3

and 6 para. 1 (art. 5-3, art. 6-1) of the Convention.

2. In response to the enquiry made in accordance with

Rule 33 para. 3 (d) of Rules of Court A, the applicants stated

that they wished to take part in the proceedings and designated

the lawyers who would represent them (Rule 30).

3. The Chamber to be constituted included ex officio

Mr F. Gölcüklü, the elected judge of Turkish nationality

(Article 43 of the Convention) (art. 43) and Mr R. Ryssdal, the

President of the Court (Rule 21 para. 3 (b)). On 24 March 1994,

in the presence of the Registrar, the President drew by lot the

names of the other seven members, namely Mr R. Bernhardt,

Mr Thór Vilhjálmsson, Mr L.-E. Pettiti, Mr R. Macdonald,

Mr J. De Meyer, Mr I. Foighel and Mr B. Repik (Article 43

in fine of the Convention and Rule 21 para. 4) (art. 43).

4. As President of the Chamber (Rule 21 para. 5),

Mr Ryssdal, acting through the Registrar, consulted the Agent of

the Turkish Government ("the Government"), the applicants'

lawyers and the Delegate of the Commission on the organisation

of the proceedings (Rules 37 para. 1 and 38). Pursuant to the

order made in consequence, the Registrar received the applicants'

and the Government's memorials on 19 and 28 July 1994

respectively. The Delegate of the Commission did not submit any

written observations.

5. On 8 November 1994 the Commission produced the file on

the proceedings before it, as requested by the Registrar on the

President's instructions.

6. In accordance with the decision of the President, who had

given the applicants and their lawyers leave to use the Turkish

language (Rule 27 para. 3), the hearing took place in the Human

Rights Building, Strasbourg, on 25 October 1994. The Court had

held a preparatory meeting beforehand.

There appeared before the Court:

(a) for the Government

Mr M. Özmen, Acting Agent,

Mrs D. Akçay, Adviser;

(b) for the Commission

Mrs J. Liddy, Delegate;

(c) for the applicants

Mr E. Sansal,

Mr G. Dinç, avukatlar (lawyers), Counsel.

The Court heard addresses by them.

AS TO THE FACTS

I. Circumstances of the case

7. Mr Yagci, a journalist, and Mr Sargin, a doctor, were the

general secretaries of the Turkish Workers' Party and the Turkish

Communist Party respectively. At a press conference in Brussels

in October 1987 they announced their intention of returning to

Turkey to found the Turkish United Communist Party (TBKP) and

develop its organisation and political action while staying

within the law.

8. On arrival at Ankara on 16 November 1987, they were

arrested as they alighted from the plane and taken into police

custody. On 4 December the public prosecutor's office applied

to the Ankara National Security Court to have them placed in

detention pending trial. On 5 December a judge of that court

made an order to that effect on the basis of strong evidence of

guilt and after hearing the suspects. He charged them with

leading an organisation whose aim was to establish the domination

of a particular social class and disseminating propaganda to that

end and with the intention of abolishing the rights guaranteed

in the Constitution; inciting public hostility and hatred; and

harming the reputation of the Republic of Turkey, its President

and its Government (Articles 140, 141/1, 142/1-6, 142/3-6, 158,

159, 311 and 312 of the Turkish Criminal Code). These offences

also amounted to an attack on the Government's authority and

could be classified as serious crimes.

9. On 10 December 1987, counsel for the applicants appealed

against that decision, which was, however, unanimously upheld by

the National Security Court on 16 December.

10. On 11 March 1988 the public prosecutor's office brought

proceedings against Mr Yagci and Mr Sargin and fourteen others.

11. The trial opened on 8 June 1988 and there were

48 hearings. The case file was made up of 40 different files.

The defendants were represented by 400 lawyers, instructed before

or during the course of the trial.

12. The first two hearings were taken up with a reading of

the indictment, which ran to 229 pages. The court then devoted

six hearings (from 4 July to 24 August 1988) to questioning the

applicants and hearing addresses by them. This process, taken

together with the content of the file and the nature of the

offences which had given rise to the case were held by the court

to justify keeping the defendants in detention.

13. At the hearing on 29 August 1988 one of the counsel for

the applicants made the first application for their provisional

release. He put forward the following arguments. His clients

had been in detention for nine and a half months, including the

period spent in police custody; although the nature of the

offences with which Mr Yagci and Mr Sargin were charged might

give rise to fears that they would abscond if released, that

danger was ruled out in their case as they had publicly stated

that they would be returning to Turkey to put their party on a

lawful footing; and the differences of political opinion between

the applicants and the regime in power could not be regarded as

an attack on the authority of the Government and the State.

The court refused the application, holding that the

reasons set out in the order of 5 December 1987 (see

paragraph 8 above) remained valid.

14. On 21 September 1988 another of the applicants'

representatives renewed the application, which was rejected by

the court on the same day on the basis of the content of the

file, the nature of the offences and the reasons set out in the

relevant order.

15. On 14 October and 4 November 1988 the National Security

Court ordered that Mr Yagci and Mr Sargin should be kept in

detention, again on the basis of what was in the file. It also

considered the organisational problems posed by the hearings on

account of the large number of people wishing to attend them.

Their lawyers had left the courtroom in order to have the

security measures that applied during the trial lifted.

16. A fresh application for provisional release was lodged on

2 December 1988 by one of the applicants' lawyers. This placed

particular emphasis on statements made by senior politicians and

judges favouring changes to the legislation in order to permit

the establishment of a communist party. At the end of the

hearing the court dismissed the application, having regard to the

content of the file.

The court dealt similarly with an identical application

made by Mr Sargin on 30 December and with others made by counsel

on 27 January, 22 February, 24 March, 21 April and 18 May 1989.

The reasons for turning down the applications were always the

same: the nature of the offences charged, the content of the

file, the length of detention and the fact that the evidence

remained unchanged.

17. At the eighteenth hearing, on 21 April 1989, the court

ordered that the documents containing the evidence should be read

out, as counsel for the applicants had requested.

18. In a further application for release made on 3 July 1989

counsel for the applicants relied on the Convention. They

maintained that Articles 141 and 142 of the Criminal Code

conflicted with the provisions of the Convention and were shortly

to be repealed. The court dismissed the application, relying on

the content of the file, the date of detention and the reasons

for it.

19. A similar application by Mr Yagci on 2 August 1989 met

with no greater success. He criticised the court for the

repetitiveness of its orders and urged it to give more precise

reasons for them. He also observed that the one-month intervals

between hearings was contributing to prolonging his detention.

The court ruled that there had been no development warranting his

release.

20. On 25 August and 18 September 1989 the National Security

Court refused two more such applications, and the reasons given

for its decisions remained unchanged.

21. On 18 October 1989 one of the applicants' lawyers raised

the concept of "reasonable time" referred to in Articles 5

para. 3 and 6 para. 1 (art. 5-3, art. 6-1) of the Convention and

asserted that the length of his clients' detention infringed

those provisions (art. 5-3, art. 6-1). He challenged, in

particular, the repetitiveness of the reasons advanced by the

court for refusing their applications for release. The court

ordered that detention should continue, again relying on the

nature of the offences and the content of the file.

22. The Convention's direct applicability in Turkish law was

again emphasised in an application for release made at a hearing

on 17 November 1989; but the National Security Court rejected

this application and others made on 15 December 1989 and

6 April 1990.

On 8 February 1990 the court had looked into the

possibility of joining the case with other trials, and on 9 March

it had resumed the reading out of evidence. At both hearings it

had considered of its own motion the issue of the applicants'

continued detention.

23. Mr Yagci and Mr Sargin were eventually released

provisionally on 4 May 1990, subject to the condition that they

must not leave the country. In its unanimous decision the

National Security Court took into account the legislative changes

being prepared that might amend, to the defendants' advantage,

the Acts on which their indictment had been based.

24. On 11 September 1990 the court dismissed an application

to defer judgment that - on 11 July 1990 - had been made on the

ground that it would be advisable to await the outcome of

proceedings brought in the Constitutional Court concerning the

dissolution of the Turkish Communist Party.

25. On 10 June 1991, following the entry into force of the

Antiterrorist Act of 12 April 1991, which repealed Articles 141,

142 and 143 of the Criminal Code, the court decided to interrupt

the reading out of the evidence relating to those provisions and

to read out the evidence relating to the other charges. This

process ended on 10 July during the forty-fifth hearing.

26. On 26 July 1991 the prosecutor made his closing address,

and on 9 and 26 August the applicants put forward their defence.

27. On 9 October 1991 the Ankara National Security Court

acquitted Mr Yagci and Mr Sargin on the charges brought against

them under Articles 140, 141 and 142 of the Criminal Code as

these had been repealed, and on charges of incitement to hatred

made under Articles 311 and 312. It held that it had no

jurisdiction in respect of the attack on the reputation of the

Republic of Turkey, its President and its Government and referred

the relevant charges to the Ankara Sixth Assize Court.

28. On 27 January 1992 that court held that it had no

jurisdiction and referred the case to the Ankara Second Assize

Court, which in a judgment of 9 July 1992 acquitted the

applicants. No appeal on points of law was lodged against that

decision, which became final on 16 July.

II. Relevant domestic law

A. The Constitution

29. Article 19 para. 7 of the Constitution provides:

"Everyone who is deprived of his liberty for any reason

whatsoever shall be entitled to take proceedings by which

his case shall be decided speedily by a court and his

release ordered if the detention is not lawful."

B. The Criminal Code

30. The following were the provisions of the Criminal Code as

they applied at the material time:

Article 140

"It shall be an offence, punishable by not less than five

years' imprisonment, for any citizen to disseminate and

publish exaggeratedly untruthful information in a foreign

country for a subversive purpose, or to engage in any

activity contrary to the national interest in such a way

that the activity in question diminishes the regard or

respect in which Turkey is held abroad."

Article 141

"It shall be an offence, punishable by eight to fifteen

years' imprisonment, to attempt to establish the

domination of one social class over the others; to

attempt to bring about the disappearance of any social

class; or to attempt to set up associations in any manner

and under any name whatsoever with the aim of

overthrowing the country's fundamental social or economic

order; or to set up, organise, lead or manage such

associations or guide their activities.

Anyone organising, leading or managing several or all of

the associations of this type shall be liable to the

death penalty.

..."

Article 142

"It shall be an offence, punishable by five to ten years'

imprisonment, to disseminate propaganda, in any manner

and under any name whatsoever, with the aim of

establishing the domination of one social class over the

others, bringing about the disappearance of any social

class, overthrowing the country's fundamental social or

economic order, or totally destroying the State's

political or legal system.

...

It shall be an offence, punishable by one to three years'

imprisonment, to disseminate propaganda in any manner

whatsoever for racist reasons or with the intention of

wholly or partly abolishing the rights secured by the

Constitution, or with the aim of weakening national

sentiment.

It shall be an offence publicly to defend the acts set

out in the preceding two paragraphs, punishable by not

more than five years' imprisonment in the case of those

set out in the first and second paragraphs and by six

months' to two years' imprisonment in the case of those

set out in the third paragraph.

Where a person has committed the acts set out in the

preceding paragraphs as a member of one or more of the

organisations referred to in the sixth paragraph of

Article 141 or with the persons referred to therein, his

sentence shall be increased by not more than one-third.

Where the acts set out in the preceding paragraphs have

been committed through publications, the sentence shall

be increased by one-half."

Article 158

"It shall be an offence, punishable by not less than

three years' imprisonment, to utter insults against the

President of the Republic or to utter insults in his

presence.

Where the insulting words are uttered in the absence of

the President of the Republic, the offender shall be

punished by one to three years' imprisonment. Even where

the insult is veiled or allusive, the name of the

President of the Republic not being clearly mentioned, it

shall be deemed to have been uttered explicitly provided

that there are presumptions leaving no doubt that it was

directed against the person of the President of the

Republic.

Where this offence is committed through the medium of the

press, sentence shall be increased by one-third to

one-half."

Article 159

"It shall be an offence, punishable by one to six years'

imprisonment, publicly to insult or revile the nation,

the Republic, the Grand National Assembly, the moral

authority of the Government, ministries, the armed

forces, the national defence and security forces or the

moral authority of the judiciary.

Even where, in the commission of the offence set out in

the first paragraph, the name of the insulted person is

not openly mentioned, the insult shall be deemed to have

been uttered explicitly against that person provided that

there are presumptions leaving no doubt that it was

directed against one of the persons referred to in the

first paragraph.

It shall be an offence, punishable by fifteen days' to

six months' imprisonment and a fine of 100 to 500 liras,

to disparage in public the laws of the Turkish Republic

or the decisions of the Grand National Assembly.

If an insult against the Turkish nation is uttered by a

Turk in a foreign country, the applicable sentence shall

be increased by one-third to one-half."

Article 311

"It shall be an offence, punishable as hereinafter,

publicly to incite another to commit an offence:

three to five years' imprisonment in the case of an

offence carrying a sentence greater than fixed-term

imprisonment;

up to three years' imprisonment, depending on the nature

of the offence, where the penalty provided for is

fixed-term imprisonment;

a fine not exceeding 500 liras in all other cases.

Where incitement is by means of newspapers or magazines

or other distributed printed material or by means of

handwritten documents disseminated in duplicated form or

as placards and posters displayed in public places, the

terms of imprisonment laid down in the preceding

paragraphs shall be doubled. Where the penalty laid down

is a fine, the sum payable shall be 25 to 1,000 liras,

depending on the nature of the offence.

In the cases provided for in the second and third

paragraphs, the penalty may not exceed the maximum

sentence for the offence incited.

Where the public incitement has led to commission of the

offence or an attempt to commit it, the inciters shall be

punished in the same way as principals."

Article 312

"It shall be an offence, punishable by three months' to

one year's imprisonment and by a fine of 50 to 500 liras,

publicly to praise or defend an act punishable by law as

an offence or to urge the people to disobey the law, or

to incite hatred between the different classes in

society, in such a way as to endanger public safety.

The penalties for the acts set out in the preceding

paragraph shall be doubled where they have been committed

by means of a publication."

C. The Code of Criminal Procedure

31. The Code of Criminal Procedure contained the following

provisions at the material time:

Article 112

"In the course of the preliminary investigation, for the

duration of the accused's detention pending trial and at

intervals of no more than thirty days, the magistrate's

court shall examine, at the public prosecutor's request,

whether or not it is necessary to prolong the accused's

detention pending trial.

The accused may also request, within the period

prescribed by the foregoing paragraph, that the court

examine the question of his detention pending trial.

During the trial of an accused detained pending trial,

the court shall at each hearing or, if circumstances so

require, between hearings decide of its own motion

whether it is necessary to prolong his detention."

Article 219

"The trial shall continue without interruption in the

presence of the parties.

..."

Article 222

"Trials may not be interrupted for more than eight days,

except in cases of necessity. Where the accused are in

detention pending trial, the interruption may not exceed

thirty days, even where necessity exists."

Article 299

"... [A]pplications to set aside decisions and orders of

this court [the Assize Court] shall be heard by the

nearest other Assize Court ..."

PROCEEDINGS BEFORE THE COMMISSION

32. Mr Yagci and Mr Sargin applied to the Commission on

6 February 1990. They complained of the length of their

detention pending trial (Article 5 para. 3 of the Convention)

(art. 5-3) and of the criminal proceedings brought against them

(Article 6 para. 1) (art. 6-1).

33. The Commission declared the applications (nos. 16419/90

and 16426/90) admissible on 10 July 1991. In its report of

30 November 1993 (Article 31) (art. 31), it expressed the

unanimous opinion that there had been a breach of those two

provisions (art. 5-3, art. 6-1). The full text of the

Commission's opinion is reproduced as an annex to this

judgment (1).

_______________

1. Note by the Registrar: for practical reasons this annex will

appear only with the printed version of the judgment

(volume 319-A of Series A of the Publications of the Court), but

a copy of the Commission's report is obtainable from the

registry.

_______________

FINAL SUBMISSIONS BY THE GOVERNMENT TO THE COURT

34. In their memorial the Government asked the Court to

"allow [their] preliminary objections both as regards the

Court's jurisdiction and as regards the admissibility of

the case before the Commission and the Court itself.

In the alternative ... to hold that Articles 5 para. 3

and 6 para. 1 (art. 5-3, art. 6-1) of the Convention

ha[d] not been violated".

AS TO THE LAW

I. INTRODUCTORY OBSERVATION

35. The Government submitted that their arguments in the

present case should be considered only if Turkey's recognition

of the Court's compulsory jurisdiction were deemed valid in its

entirety.

In the case of Loizidou v. Turkey the Government

contended that Turkey's declaration of 22 January 1990 under

Article 46 (art. 46) of the Convention would not be valid if the

Court held the limitation ratione loci it contained to be

invalid. The Court, in its judgment of 23 March 1995, while

holding the limitation in question invalid, ruled that the said

declaration contained a valid acceptance of its competence

(Series A no. 310, p. 32, para. 98).

II. THE GOVERNMENT'S PRELIMINARY OBJECTIONS

36. As their main submission the Government raised three

objections to admissibility, based on lack of jurisdiction

ratione temporis, failure to exhaust domestic remedies and loss

of victim status.

1. Lack of jurisdiction ratione temporis

37. The Government contended that when, on 22 January 1990,

Turkey had recognised the Court's compulsory jurisdiction over

"matters raised in respect of facts, including judgments which

are based on such facts which have occurred subsequent to" that

date, its intention had been to remove from the ambit of the

Court's review events that had occurred before the date on which

the declaration made under Article 46 (art. 46) of the Convention

was deposited. Moreover, in the present case the Court's

jurisdiction ratione temporis was also excluded in respect of

facts subsequent to 22 January 1990 which by their nature were

merely "extensions of ones occurring before that date".

38. Mr Yagci and Mr Sargin submitted that the Court, in the

same way as the Commission, had jurisdiction to deal with the

case from the time it began, namely 16 November 1987, when they

were arrested. Any other solution would result in different

treatment of the same facts by the two Convention institutions.

39. The Delegate of the Commission argued that even if the

Court held that it had jurisdiction from 22 January 1990, it

would have to take into consideration the fact that on that date

the applicants had been in detention pending trial, in connection

with criminal proceedings, for more than two years and two

months.

40. Having regard to the wording of the declaration Turkey

made under Article 46 (art. 46) of the Convention, the Court

considers that it cannot entertain complaints about events which

occurred before 22 January 1990 and that its jurisdiction ratione

temporis covers only the period after that date. However, when

examining the complaints relating to Articles 5 para. 3

and 6 para. 1 (art. 5-3, art. 6-1) of the Convention, it will

take account of the state of the proceedings at the time when the

above-mentioned declaration was deposited (see, among other

authorities and mutatis mutandis, the Neumeister v. Austria

judgment of 27 June 1968, Series A no. 8, p. 38, para. 7, and the

Baggetta v. Italy judgment of 25 June 1987, Series A no. 119,

p. 32, para. 20).

It therefore cannot accept the Government's argument that

even facts subsequent to 22 January 1990 are excluded from its

jurisdiction where they are merely extensions of an already

existing situation. From the critical date onwards all the

State's acts and omissions not only must conform to the

Convention but are also undoubtedly subject to review by the

Convention institutions.

2. Non-exhaustion of domestic remedies

41. The Government also pleaded - as they had done before the

Commission - failure to exhaust domestic remedies, arguing that

the applicants had in the first place neglected to apply to have

set aside the decisions in which the Ankara National Security

Court had ordered that they should continue to be kept in

detention, a possibility afforded them, in particular, by

Article 299 of the Code of Criminal Procedure.

Nor had Mr Yagci and Mr Sargin relied in the national

proceedings on Article 19 para. 7 of the Constitution, which gave

everyone in detention pending trial the right to be tried within

a reasonable time.

Lastly, the applicants had not sought relief under Law

no. 466 of 7 May 1964, which guaranteed persons who had been

lawfully or unlawfully in detention the possibility of obtaining

damages, irrespective of whether they had been acquitted,

discharged without being brought to trial, or convicted.

42. As regards the first limb of the objection, the Court

notes - like the Commission - that the remedy indicated by the

Government must be sufficiently certain, in practice as well as

in theory (see, mutatis mutandis, the Navarra v. France judgment

of 23 November 1993, Series A no. 273-B, p. 27, para. 24). In

1958, however, the Court of Cassation twice held that Article 299

of the Code of Criminal Procedure, which was designed to enable

applications to be made to have detention orders set aside, did

not apply to orders prolonging detention. The Government did not

cite any case-law to the contrary.

43. As regards Article 19 of the Constitution, the Court

observes that the Government did not dispute - either before the

Commission or at the hearing on 25 October 1994 - that that

provision was largely modelled on Article 5 (art. 5) of the

Convention and that the latter had been relied on by the

applicants in the National Security Court three times (see

paragraphs 18, 21 and 22 above).

44. As to the last limb of the objection, the Court points

out that the applicants complained of the length of their

detention pending trial, whereas Law no. 466 refers to an action

for damages against the State in respect of detention undergone

by persons who have been acquitted. Besides, the right to be

tried within a reasonable time or released during the proceedings

is not the same as the right to receive compensation for

detention. Paragraph 3 of Article 5 (art. 5-3) of the Convention

covers the former and paragraph 5 of Article 5 (art. 5-5) the

latter. In conclusion, the objection is unfounded on this point

also.

3. Loss of victim status

45. Lastly, the Government maintained that once they had been

released on 4 May 1990, Mr Yagci and Mr Sargin could no longer

claim to be victims of breaches of the Convention. They had

received a kind of redress for the allegedly excessive length of

their detention and the proceedings; the National Security Court

had taken account of the major legislative reform that was under

way in Turkey, which might result in the criminal provisions on

which the applicants' committal for trial was based being amended

to their advantage; and on the above-mentioned date, Mr Yagci's

and Mr Sargin's acquittal seemed to be the only possible outcome

of the proceedings in question.

46. The Court notes that the objection was not raised before

the Commission, and it therefore dismisses it as there is

estoppel.

III. ALLEGED VIOLATION OF ARTICLE 5 PARA. 3 (art. 5-3) OF THE

CONVENTION

47. Mr Yagci and Mr Sargin complained of the length of their

detention pending trial. They considered it contrary to

Article 5 para. 3 (art. 5-3) of the Convention, which provides:

"Everyone arrested or detained in accordance with the

provisions of paragraph 1 (c) of this Article

(art. 5-1-c) shall be ... entitled to trial within a

reasonable time or to release pending trial. Release may

be conditioned by guarantees to appear for trial."

48. The Government contested this view, in the alternative,

whereas the Commission accepted it.

A. Period to be taken into consideration

49. Having regard to the conclusion in paragraph 40 of this

judgment, the Court can only consider the period of three months

and twelve days which elapsed between 22 January 1990, when the

declaration whereby Turkey recognised the Court's compulsory

jurisdiction was deposited, and 4 May 1990, when the applicants

were provisionally released (see paragraph 23 above). However,

when determining whether the applicants' continued detention

after 22 January 1990 was justified under Article 5 para. 3

(art. 5-3) of the Convention, it must take into account the fact

that by that date the applicants, having been placed in detention

on 16 November 1987 (see paragraph 8 above), had already been in

custody for two years and two months.

B. Reasonableness of the length of detention

50. It falls in the first place to the national judicial

authorities to ensure that, in a given case, the detention of an

accused person pending trial does not exceed a reasonable time.

To this end they must examine all the facts arguing for or

against the existence of a genuine requirement of public interest

justifying, with due regard to the principle of presumption of

innocence, a departure from the rule of respect for individual

liberty and set them out in their decisions on the applications

for release. It is essentially on the basis of the reasons given

in these decisions and of the true facts mentioned by the

applicant in his appeals, that the Court is called upon to decide

whether or not there has been a violation of Article 5 para. 3

(art. 5-3) of the Convention (see, among other authorities, the

Letellier v. France judgment of 26 June 1991, Series A no. 207,

p. 18, para. 35).

The persistence of reasonable suspicion that the person

arrested has committed an offence is a condition sine qua non for

the validity of the continued detention, but, after a certain

lapse of time, it no longer suffices; the Court must then

establish whether the other grounds cited by the judicial

authorities continue to justify the deprivation of liberty (ibid.

and see the Wemhoff v. Germany judgment of 27 June 1968,

Series A no. 7, pp. 24-25, para. 12, and the Ringeisen v. Austria

judgment of 16 July 1971, Series A no. 13, p. 42, para. 104).

Where such grounds are "relevant" and "sufficient", the Court

must also ascertain whether the competent national authorities

displayed "special diligence" in the conduct of the proceedings

(see the Matznetter v. Austria judgment of 10 November 1969,

Series A no. 10, p. 34, para. 12; the B. v. Austria judgment of

28 March 1990, Series A no. 175, p. 16, para. 42; and the

Letellier judgment previously cited, p. 18, para. 35).

51. During the period covered by the Court's jurisdiction

ratione temporis the Ankara National Security Court considered

the question of the applicants' continued detention on three

occasions - on 8 February and 9 March 1990 of its own motion and

on 6 April on an application by the applicants (see paragraph 22

above).

As grounds for refusing to release Mr Yagci and Mr Sargin

it cited the nature of the offences (classified as serious

crimes, they gave rise in law to a presumption that there was a

risk that the accused would abscond), "the state of the evidence"

and the date of arrest, namely 16 November 1987 (see

paragraph 8 above).

In the Government's submission, the applicants were kept

in detention for as long as that was necessary to prevent them

from absconding.

52. The Court points out that the danger of an accused's

absconding cannot be gauged solely on the basis of the severity

of the sentence risked. It must be assessed with reference to

a number of other relevant factors which may either confirm the

existence of a danger of absconding or make it appear so slight

that it cannot justify detention pending trial (see, mutatis

mutandis, the Letellier judgment previously cited, p. 19,

para. 43).

Mr Yagci and Mr Sargin had returned to Turkey of their

own accord and with the specific aim of founding the Turkish

United Communist Party (see paragraphs 7 and 13 above) and they

could not be unaware that they would be prosecuted for this.

The National Security Court's orders confirming detention

nearly always used an identical, not to say stereotyped, form of

words, without in any way explaining why there was a danger of

absconding.

53. The expression "the state of the evidence" could be

understood to mean the existence and persistence of serious

indications of guilt. Although in general these may be relevant

factors, in the present case they cannot on their own justify the

continuation of the detention complained of (see the Kemmache

v. France (nos. 1 and 2) judgment of 27 November 1991, Series A

no. 218, p. 24, para. 50).

54. The third reason put forward by the National Security

Court, namely the date of the applicants' arrest, does not stand

up to scrutiny either, since no total period of detention is

justified in itself, without there being relevant grounds under

the Convention.

55. In the light of these considerations, the Court holds

that the applicants' continued detention during the period in

question contravened Article 5 para. 3 (art. 5-3).

That conclusion makes it unnecessary to look at the way

in which the judicial authorities conducted the case.

IV. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1) OF THE

CONVENTION

56. Mr Yagci and Mr Sargin further complained of the length

of the criminal proceedings against them. They relied on

Article 6 para. 1 (art. 6-1) of the Convention, which provides:

"In the determination of ... any criminal charge against

him, everyone is entitled to a ... hearing within a

reasonable time by [a] ... tribunal ..."

57. The Government contested this view, again in the

alternative, whereas the Commission accepted it.

A. Period to be taken into consideration

58. The proceedings began on 16 November 1987, when the

applicants were arrested and taken into police custody, and ended

not - as the Government argued - on 9 October 1991, when the

applicants were acquitted of offences under Articles 141-43

(repealed on 12 April 1991 - see paragraphs 23, 25 and 27 above),

311 and 312 of the Criminal Code, but on 16 July 1992, when the

Ankara Second Assize Court's judgment of 9 July in which the

applicants were acquitted on the remaining charges became final

(see paragraph 28 above).

However, having regard to the conclusion in paragraph 40

of this judgment, the Court can only consider the period of two

years, five months and twenty-four days that elapsed between

22 January 1990, the date on which the declaration whereby Turkey

recognised the Court's compulsory jurisdiction was deposited, and

16 July 1992. Nevertheless, it must take into account the fact

that by the critical date the proceedings had already lasted more

than two years.

B. Reasonableness of the length of proceedings

59. The reasonableness of the length of proceedings is to be

assessed in the light of the particular circumstances of the

case, regard being had to the criteria laid down in the Court's

case-law, in particular the complexity of the case, the

applicant's conduct and that of the competent authorities (see,

among many other precedents, the Kemmache (nos. 1 and 2) judgment

previously cited, p. 27, para. 60).

1. Complexity of the case

60. The Government maintained that the case had been an

extremely complex one as the evidence in the trial ran to forty

files concerning sixteen accused, who were defended by a very

large number of counsel. The Ankara National Security Court had

not only to look at the evidence before it but also to read it

out at the hearings, as requested by counsel for Mr Yagci and

Mr Sargin so that the defence could make their observations.

Ignoring that request would have resulted in the judgment's being

quashed under Article 250 of the Code of Criminal Procedure.

61. The applicants contended that they had asked to have the

documents in the case file read out because the prosecution had

given no indication as to which charges the documents were

supposed to prove. Furthermore, in view of the number of

documents, Mr Sargin had himself suggested to the court that his

counsel should, together with the representative of the public

prosecutor's office, make a preliminary selection from them in

order to speed up the trial; the court had refused. Nor had the

case been especially complex, since it was a question simply of

establishing that the party that they had wished to found was

illegal at the time. Three months ought to have sufficed to

complete the proceedings. The large number of counsel present

had to be interpreted as a form of protest against political

trials.

62. According to the Delegate of the Commission, even

supposing that the case had been a complex one, the National

Security Court's task of establishing the facts had been made

easier as the applicants had never denied their aims and the file

had contained documents concerning their political activities.

63. The Court notes merely that from 22 January 1990 the

National Security Court held twenty hearings, sixteen of which

were devoted almost entirely to reading out evidence. That

process, even allowing for the quantity of documents, cannot be

regarded as complex.

2. The applicants' conduct

64. The Government criticised the applicants' lawyers for

having contributed to prolonging the proceedings by leaving the

hearing room on several occasions in protest against the security

measures imposed at the trial and by not complying with the

time-limits for making observations on the evidence in the file.

Furthermore, the Government regarded the application of

11 July 1990 to defer judgment (see paragraph 24 above) and the

filing of numerous documents as having been delaying tactics.

65. The applicants said that they had always co-operated with

the relevant courts.

66. The Court reiterates that Article 6 (art. 6) does not

require a person charged with a criminal offence to co-operate

actively with the judicial authorities (see, as the most recent

authority, the Dobbertin v. France judgment of 25 February 1993,

Series A no. 256-D, p. 117, para. 43). It notes, like the

Commission, that the conduct of Mr Yagci and Mr Sargin and their

counsel at the hearings does not seem to have displayed any

determination to be obstructive. At all events, the applicants

cannot be blamed for having taken full advantage of the resources

afforded by national law in their defence. Even if the large

number of counsel present at the hearings and their attitude to

the security measures slowed down the proceedings to some extent,

they are not factors that, taken alone, can explain the length

of time in issue.

3. Conduct of the judicial authorities

67. In the Government's submission, the judicial authorities

had always tried to bring the trial to a swift conclusion

without, however, infringing the rights of the defence.

68. The applicants maintained that by claiming to be staging

a "mass trial" of which they were the sole targets, the

prosecution had been able to apply the special rules on the

length of police custody, judicial investigation and proceedings.

Furthermore, by holding an average of one hearing a month, the

National Security Court had systematically disregarded

Article 222 of the Code of Criminal Procedure, which prohibited

any interruption of a trial for longer than eight days except in

cases of necessity.

69. The Court does not in this instance have to speculate as

to the motives of the prosecution at the National Security Court.

It notes merely that between 22 January 1990 and 9 July 1992 that

court held only twenty hearings in the case at regular intervals

(less than thirty days), only one of which lasted for longer than

half a day.

Moreover, after the Antiterrorist Act of 12 April 1991,

repealing Articles 141-43 of the Criminal Code, had come into

force (see paragraph 25 above), the National Security Court

waited nearly six months before acquitting the applicants on the

charges based on those provisions.

70. In conclusion, the length of the criminal proceedings in

question contravened Article 6 para. 1 (art. 6-1).

V. APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION

71. Under Article 50 (art. 50) of the Convention,

"If the Court finds that a decision or a measure taken by

a legal authority or any other authority of a High

Contracting Party is completely or partially in conflict

with the obligations arising from the ... Convention, and

if the internal law of the said Party allows only partial

reparation to be made for the consequences of this

decision or measure, the decision of the Court shall, if

necessary, afford just satisfaction to the injured

party."

A. Damages

72. Mr Yagci and Mr Sargin firstly claimed compensation to be

calculated in European Currency Units and having regard to the

date of actual payment by Turkey. They did not quantify it but

said that the amount should be a large one in order to act as a

deterrent. They relied on their suffering throughout detention

and trial, the impossibility of carrying on their occupation and

the slur on their honour.

73. The Government referred to their preliminary objections

based on non-exhaustion of domestic remedies and loss of victim

status (see paragraphs 41 and 45 above) and asked the Court to

dismiss the claims.

74. The Delegate of the Commission did not make any

submissions.

75. While reiterating that in the instant case its

jurisdiction ratione temporis began on 22 January 1990, the Court

considers, having regard to the particular circumstances of the

case, that the applicants sustained non-pecuniary damage which

the findings of violations in paragraphs 55 and 70 of this

judgment cannot make good. It awards them each 30,000 French

francs (FRF) under this head.

As to pecuniary damage, it is not apparent from the

evidence that any was sustained.

B. Costs and fees

76. The applicants also sought reimbursement of the costs and

expenses incurred in both sets of proceedings before the

Convention institutions, which they estimated at FRF 38,000 in

all. As to the fees of their counsel, they wished to leave it

to the Court's discretion to assess the amount, having due regard

to "the rates applied in the profession for similar services".

77. No observations were made on the matter by either the

Government or the Commission.

78. On the basis of its case-law and the evidence before it,

the Court considers the amount for costs and expenses to be

reasonable. As to the fees, it decides to award FRF 30,000 for

the two lawyers on an equitable basis.

C. Other claims

79. The applicants asked the Court, lastly, to request the

respondent State to comply with the undertakings it made when

ratifying the Convention. They suggested a number of remedies

for the shortcomings in Turkish law.

In the first place, they considered it necessary to

repeal section 31 of Law no. 3842 of 1 December 1992, which

precluded application of the other provisions of the Law -

limiting the length of detention - to offences over which the

National Security Court continued to have jurisdiction.

Secondly, they deplored the lack of any procedure for

speeding up the handling of cases and for providing compensation

where a reasonable time had been exceeded.

Thirdly, they considered that Turkey should make greater

efforts to ensure that the Strasbourg institutions'

interpretations of the Convention's substantive provisions were

known, especially in academic and judicial circles.

80. The Government and the Delegate of the Commission did not

make any submissions.

81. The Court notes that the Convention does not empower it

to accede to such a request. It reiterates that it is for the

State to choose the means to be used in its domestic legal system

in order to comply with the provisions of the Convention or to

redress the situation that has given rise to the violation of the

Convention (see, mutatis mutandis, the Zanghì v. Italy judgment

of 19 February 1991, Series A no. 194-C, p. 48, para. 26, and the

Demicoli v. Malta judgment of 27 August 1991, Series A no. 210,

p. 19, para. 45).

FOR THESE REASONS, THE COURT

1. Dismisses unanimously the preliminary objection of lack

of jurisdiction ratione temporis;

2. Dismisses unanimously the objection that domestic

remedies were not exhausted;

3. Dismisses unanimously the objection based on loss of

victim status;

4. Holds by eight votes to one that there has been a breach

of Article 5 para. 3 (art. 5-3) of the Convention on

account of the length of the applicants' detention;

5. Holds by eight votes to one that there has been a breach

of Article 6 para. 1 (art. 6-1) of the Convention on

account of the length of the criminal proceedings;

6. Holds by eight votes to one that the respondent State is

to pay each of the applicants, within three months,

30,000 (thirty thousand) French francs in respect of

non-pecuniary damage;

7. Holds unanimously that the respondent State is to pay the

two applicants jointly, within three months, 38,000

(thirty-eight thousand) French francs in respect of costs

and expenses and 30,000 (thirty thousand) francs in

respect of lawyers' fees;

8. Dismisses unanimously the remainder of the claim for just

satisfaction.

Done in English and in French, and delivered at a public

hearing in the Human Rights Building, Strasbourg, on 8 June 1995.

Signed: Rolv RYSSDAL

President

Signed: Herbert PETZOLD

Registrar

In accordance with Article 51 para. 2 (art. 51-2) of the

Convention and Rule 53 para. 2 of Rules of Court A, the

dissenting opinion of Mr Gölcüklü is annexed to this judgment.

Initialled: R. R.

Initialled: H. P.

DISSENTING OPINION OF JUDGE GÖLCÜKLÜ

(Translation)

1. I maintain the position I expressed in my dissenting

opinion in the case of Loizidou v. Turkey (judgment of

23 March 1995, Series A no. 310) concerning the question of the

validity of Turkey's declarations under Articles 25 and 46

(art. 25, art. 46) of the Convention.

2. Article 5 para. 3 (art. 5-3). When, on 22 January 1990,

Turkey recognised the Court's jurisdiction over "matters raised

in respect of facts, including judgments which are based on such

facts which have occurred subsequent to" that date, its intention

was to remove from the ambit of the Court's review events that

had occurred before the date on which the declaration made under

Article 46 (art. 46) of the Convention was deposited. The Court

acknowledges this: "Having regard to the wording of the

declaration Turkey made under Article 46 (art. 46) ..., the Court

... cannot entertain complaints about events which occurred

before 22 January 1990 and ... its jurisdiction ratione temporis

covers only the period after that date" (see paragraph 40). That

is correct and is patently obvious in view of the explicit

wording of Article 46 (art. 46).

3. However, the Court goes on to say: "... when examining

the complaints relating to Articles 5 para. 3 and 6 para. 1

(art. 5-3, art. 6-1) of the Convention, [the Court] will take

account of the state of the proceedings at the time when the

above-mentioned declaration was deposited" (see paragraph 40).

4. This assertion raises the question of the practical

consequences of this case-law, in other words the effect it has

on the merits of the case under consideration.

5. The Turkish declaration was made on 22 January 1990. The

applicants, who had been detained since 16 November 1987, lodged

an application for their release for the first time on

29 August 1988, that is to say nine months and thirteen days

after being deprived of their liberty (see paragraph 13); they

were provisionally released on 4 May 1990 (see paragraph 23),

only three months and eleven days after Turkey's declaration

under Article 46 (art. 46) of the Convention - a relatively short

period of time.

6. Article 6 para. 1 (art. 6-1). On 11 March 1988 the

public prosecutor's office brought proceedings against the

applicants; the trial opened on 8 June 1988. The case file was

very bulky. The defendants were represented by 400 lawyers (see

paragraphs 10-11).

7. At the time of the applicants' provisional release, the

legislative changes that were already under way with the aim of

repealing the Acts on which their indictment had been based were

making progress (see paragraph 23).

Articles 141, 142 and 143 of the Turkish Criminal Code,

under which Mr Yagci and Mr Sargin had been prosecuted, were

repealed, and as a result the court decided, on 10 June 1991, to

interrupt the reading out of the documents in the file relating

to those provisions and to read out the evidence relating to the

other charges. This process ended on 10 July 1991, one year,

four months and eighteen days after the Turkish declaration in

question. The proceedings could be considered as having really

ended on that date, since what happened subsequently was a mere

formality. And everything connected with the prosecution of the

applicants ended on 9 July 1992. Even if the proceedings are

regarded as having ended on the latter date, the trial lasted in

all for two years, five months and seventeen days after Turkey's

declaration under Article 46 (art. 46), which to my mind is not

excessive for a trial on such a scale.

8. It should be noted that on 11 July 1990 the applicants

themselves had asked the court to defer judgment, on the ground

that it would be advisable to await the outcome of the

proceedings brought in the Constitutional Court concerning the

dissolution of the Turkish Communist Party (see paragraph 24).

9. Even if one regards as appropriate and consistent with

the spirit of the Convention the Court's case-law to the effect

that, when assessing reasonableness for the purposes of

Articles 5 para. 3 and 6 para. 1 (art. 5-3, art. 6-1), it will

take into account the period prior to the declaration made by

Turkey, the rule will, in my opinion, affect the outcome only

where the pointer of the scales is hovering on the line that

separates "reasonable" from "unreasonable".

10. We must bear in mind the fact that the provisions of

Article 25 and Article 46 (art. 25, art. 46) concerning time

limitations on them are totally and completely independent of

each other, and that a State may very well recognise the right

of individual petition without recognising the Court's

jurisdiction.

11. In the present case, the lines formed by the applicants'

provisional release after three months and eleven days

(Article 5 para. 3) (art. 5-3), and by the end of the

proceedings, one year, four months and eighteen days (or, if

preferred, two years, five months and seventeen days) after the

declaration made by Turkey under Article 46 (art. 46), cannot be

regarded as boundaries between "reasonable" and "unreasonable"

if account is taken of the conditions in which this trial was

conducted. Any other approach would mean confusing in an

unacceptable way the provisions of Articles 25 and 46 (art. 25,

art. 46) on limitations ratione temporis on the application of

those Articles (art. 25, art. 46).

12. I take the view that neither by applying the "evolutive

and progressive" method of interpretation it has adopted nor by

applying the principle of implementing the Convention in a

"useful" way, does the European Court of Human Rights have power

to modify the provision of Article 46 (art. 46) concerning

limitations ratione temporis to the point of rendering it

ineffective or negating its existence.

13. I therefore reach the conclusion, contrary to the opinion

of the majority, that Turkey has violated neither Article 5

para. 3 nor Article 6 para. 1 (art. 5-3, art. 6-1) of the

Convention.