EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 28010/95

Hüseyin Şimşek

against

Turkey

REPORT OF THE COMMISSION

(adopted on 1 March 1999)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-16) ------------------------------------------ 1

A. The application

(paras. 2-4) ---------------------------------------- 1

B. The proceedings

(paras. 5-11) --------------------------------------- 1

C. The present Report

(paras. 12-16) -------------------------------------- 2

II. ESTABLISHMENT OF THE FACTS

(paras. 17-34) ----------------------------------------- 4

A. The particular circumstances of the case

(paras. 17-27) -------------------------------------- 4

B. Relevant domestic law

(paras. 28-34) -------------------------------------- 5

III. OPINION OF THE COMMISSION

(paras. 35-79) ----------------------------------------- 8

A. Complaints declared admissible

(para. 35) ----------------------------------------- 8

B. Points at issue

(para. 36) ----------------------------------------- 8

C. Background to the case

(paras. 37-48) -------------------------------------- 8

D. As regards Article 5 para. 3 of the Convention

(paras. 49-57) -------------------------------------- 11

CONCLUSION

(para. 58) -------------------------------------------- 12

E. As regards Article 5 para. 4 of the Convention

(paras. 59-63) ----------------------------------------- 12

CONCLUSION

(para. 64) -------------------------------------------- 13

F. As regards Article 5 para. 5 of the Convention

(paras. 65-75) ----------------------------------------- 13

CONCLUSION

(para. 76) -------------------------------------------- 15

G. Recapitulation

(para. 77 - 79) ----------------------------------------- 15

APPENDIX : DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION -------------- 16

I. INTRODUCTION

1. The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.

A. The application

2. The applicant is a Turkish citizen, born in 1963 and resident in Tunceli.  He was represented before the Commission by Mr Aydın Erdoğan.

3. The application is directed against Turkey.  The respondent Government were represented by their Agent.

4. The case concerns the length and lawfulness of the applicant's detention in police custody and his right to compensation. The applicant invokes Article 5 paras. 3, 4 and 5 of the Convention.

B. The proceedings

5. The application was introduced on 24 April 1995 and registered on 25 July 1995.

6. On 26 February 1997 the Commission (Second Chamber) decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits. 

7. The Government's observations were submitted on 30 July 1997 after an extension of the time-limit fixed for this purpose.  The applicant replied on 5 September 1997.

8. On 16 April 1998 the Commission declared admissible the applicant's complaint under Article 5 paras. 3, 4 and 5 of the Convention.  It declared inadmissible the remainder of the application.

9. The text of the Commission's decision on admissibility was sent to the parties on 28 April 1998 and they were invited to submit such further information or observations on the merits as they wished. The applicant submitted observations on 2 June 1998, to which the Government replied on 20 July 1998.

10. Pursuant to the entry into force of Protocol No. 11 to the Convention on 1 November 1998, the application was transferred to the Commission sitting in plenary.

11. After declaring the case admissible, the Commission, acting in accordance with former [1] Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement. In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.

C. The present Report

12. The present Report has been drawn up by the Commission in pursuance of former Article 31 of the Convention and after deliberations and votes, the following members being present:

MM. S. TRECHSEL, President

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

Mrs G.H. THUNE

Mr F. MARTINEZ

Mrs J. LIDDY

MM J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

I. BÉKÉS

D. ŠVÁBY

A. PERENIČ

C. BÃŽRSAN

K. HERNDL

E. BIELIŪNAS

E.A. ALKEMA

M. VILA AMIGÓ

Mrs M. HION

MM. R. NICOLINI

A. ARABADJIEV

13. The text of this Report was adopted on 1 March 1999 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with former Article 31 para. 2 of the Convention.

14. The purpose of the Report, pursuant to former Article 31 of the Convention, is:

(i) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose a breach by the                                        State concerned of its obligations under the Convention.

15. The Commission's decision on the admissibility of the application, in the original English, is annexed hereto.

16. The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

17. The applicant was formerly convicted of being a member of an illegal terrorist organisation, the TKP-TÄ°KKO. After serving his sentence, he had been released.

18. The police carried out operations against TKP-TÄ°KKO activists and H.G. was taken into police custody. During his interrogation he confessed that he was the supervisor of a group in Sivas and that he used to have contact with other supervisors in Germany by telephone. He offered to arrange a meeting, called the number in question and fixed a meeting with the applicant. On 9 January 1995 the police arrested the applicant at the meeting point.

19. Following this arrest, the applicant signed an incident report, which was drafted by the policemen and in which it was stated that the applicant and H.G. were accused of being members of an illegal terrorist organisation, the TKP-TÄ°KKO.

20. On 9 January 1995 the applicant was taken into police custody in Ankara on suspicion of continuing his activities as a member of the TKP-TÄ°KKO.             

21. On 10 January 1995 the Public Prosecutor at the Ankara State Security Court extended the applicant's detention in police custody to 16 January 1995. The Public Prosecutor also asked the investigating judge to place the applicant in detention on remand.

22. On 16 January 1995, after interviewing the applicant, the judge at the State Security Court in Ankara ordered him to be remanded in custody.

23. In an indictment dated 9 February 1995, the Public Prosecutor at the Ankara State Security Court charged the applicant with establishing armed organisations or bands, or acting as the head, or assuming command or any particular duty in such organisations or bands with the aim of committing an offence such as to attempt to modify partially or entirely the Constitution of the Turkish Republic or to carry out a coup d’  tat against the Grand National Assembly. The Prosecutor relied on Section 168 para. 2 of the Turkish Criminal Code and Section 5 of Law No. 3713.

24. In the criminal proceedings before the Ankara State Security Court, the applicant denied the charges and requested his acquittal. He stated that H.G. was his friend from the prison and their meeting was just a get-together.             

25. On 19 April 1995 the Court acquitted the applicant. It held that due to lack of evidence that the applicant was still a member of the terrorist group TKP-TÄ°KKO when he was charged, there were no grounds for imposing a punishment on him.

26. The Prosecutor appealed. He submitted that the applicant had never terminated his relations with the above-mentioned terrorist group. He requested that the judgment be set aside.

27. The Court of Cassation, upholding the cogency of the State Security Court's assessment of the evidence and its reasoning, dismissed the appeal on 27 October 1995.               

B. Relevant domestic law

28. Article 19 of the Constitution provides:

"Everyone has the right to liberty and security of person.

No one shall be deprived of his liberty save in the following cases and in accordance with the formalities and conditions prescribed by law:

...

The arrested or detained person must be brought before a judge within forty-eight hours at the latest or, in the case of offences committed by more than one person, within fifteen days...These time-limits may be extended during a state of emergency...

...

A person deprived of his liberty, for whatever reason, shall have the right to take proceedings before a judicial authority which shall give a speedy ruling on his case and order his immediate release if it finds that the deprivation of liberty was unlawful.

Compensation must be paid by the State, as the law shall provide, for damage sustained by persons who have been victims of treatment contrary to the above provisions."

29. Section 168 of the Turkish Criminal Code reads as follows:

"Any person who, with the intention of committing the offences defined in Articles..., forms an armed gang or organisation or takes leadership...or command of such a gang or organisation or assumes some special responsibility within it shall be sentenced to not less than fifteen years' imprisonment.

The other members of the gang or organisation shall be sentenced to not less than five and not more than fifteen years' imprisonment."

30. Under section 3 of the Prevention of Terrorism Act (Law No. 3713 of 12 April 1991), the offence defined in section 168 of the Criminal Code is classified as a "terrorist act".

"Pursuant to section 5 of Law No. 3713, penalties laid down in the Criminal Code as punishment for the offences defined in sections 3 and 4 of the Act are increased by one half."

31. Under section 9(a) of Law No. 2845 on procedure in the state security courts, only these courts can try cases involving the offences defined in section 168 of the Criminal Code.

32. Under section 128 of the Code of Criminal Procedure, an arrested person must be brought before a judge within twenty four hours or, where the offence has been committed by more than one person, within four days.

Section 30 of Law No. 3842 published on 1 December 1992 provided that, with regard to offences within the jurisdiction of the state security courts - including those mentioned in paragraph 29 above - any arrested person had to be brought before a judge within              forty-eight hours at the latest, or, in the case of offences committed by more than one person,              within fifteen days. In provinces where a state of emergency had been declared, these time-limits could be extended to four days and thirty days respectively.

33. A state of emergency is in force in the following provinces: Batman, Bingöl, Bitlis, Diyarbakır, Hakkari, Mardin, Siirt, Şırnak, Tunceli and Van.

34. Section 1 of Law No. 466 on the payment of compensation to persons arrested or detained provides:

"Compensation shall be paid by the State in respect of all damage sustained by persons

(1) who have been arrested, or detained under conditions or in circumstances incompatible with the Constitution or statute law;

(2) who have not been immediately informed of the reasons for their arrest or detention;

(3) who have not been brought before a judicial officer after being arrested or detained within the time-limit laid down by statute for that purpose;

(4) who have been deprived of their liberty without a court order after the statutory time-limit for being brought before a judicial officer has expired;

(5) whose close family have not been immediately informed of their arrest or detention;

(6) who, after being released or detained in accordance with the law, are not subsequently committed for trial..., or are acquitted or discharged after standing trial;

or

(7) who have been sentenced to a period of imprisonment shorter than the period spent in detention or ordered to pay a pecuniary penalty only."

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

35. The Commission has declared admissible:

- the applicant's complaint that the length of his detention in police custody was                           excessive;

- the applicant's complaint that he had no remedy under Turkish law allowing him              to challenge the lawfulness of his detention; and

- the applicant's complaint that he had no right under Turkish law to compensation              for the excessive length of his detention in police custody.

B. Points at issue

36. The issues to be determined by the Commission are as follows:

- whether there has been a violation of Article 5 para. 3 of the Convention;

- whether there has been a violation of Article 5 para. 4 of the Convention;

- whether there has been a violation of Article 5 para. 5 of the Convention;

C. Background to the case

37. The respondent Government raise a preliminary objection based on their derogation under Article 15 of the Convention. This Article states:

"1. In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.

2. No derogation from Article 2, except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7 shall be made under this provision.

3. Any High Contracting Party availing itself of this right of derogation shall keep the Secretary General of the Council of Europe fully informed of the measures which it has taken and the reasons therefor.  It shall also inform the Secretary General of the Council of Europe when such measures have ceased to operate and the provisions of the Convention are again being fully executed."

38. The Government recall their declaration that "The Republic of Turkey is exposed to threats to its national security in South-East Anatolia which have steadily grown in scope and intensity ... so as to [amount] to a threat to the life of the nation [with]in the meaning of Article 15 of the Convention ... . The threat to national security is predominantly occurring in provinces of South-East Anatolia and partly also in adjacent provinces ...  Because of the intensity and diversity of terrorist actions and in order to cope with such actions, the Government has ... to use its security forces ..."

39. Referring to the criteria laid down by the Commission in the Greek case (Comm. Report 5.12. 1969, Yearbook 12, pp. 71-72, paras. 152-154), the Government argue that their derogation is justified on the grounds of a "public emergency threatening the life of the nation" within the meaning of Article 15 of the Convention.  In the light of the Court's case-law (Ireland v. United Kingdom judgment of 18 January 1978, Series A no. 25, pp. 78-79, para. 207 and Brannigan and McBride judgment of 26 May 1993, Series A no. 258-B, p. 49, para. 43), they argue that it is absolutely essential that they derogate from the procedural guarantees governing the detention of persons belonging to terrorist armed groups and that, in practice, it is impossible to provide judicial supervision of the pursuit of terrorists to the standards required by Article 5 of the Convention, owing to the difficulties inherent in investigating and suppressing terrorist crime.

40. The applicant disputes that Article 15 of the Convention is applicable to the criminal proceedings brought against them.

41. The Commission will examine, first, the question whether the situation of which the applicants complain is covered by the Notice of Derogation made by Turkey under Article 15 of the Convention.

42. In its "Notice of Derogation in Conformity with Article 15 of the European Convention on Human Rights" attached to its letter of 23 August 1990, the Turkish Government declared as follows:

"1. The Republic of Turkey is exposed, in South-East Anatolia, to threats to its national security which have steadily grown in scope and intensity over the last months so as to [amount] to a threat to the life of the nation [with]in the meaning of Article 15 of the Convention.

...

2. The threat to national security is predominantly occurring in provinces of South-East Anatolia and partly also in adjacent provinces.

...

4. To this end, the Government of Turkey, acting in conformity with Article 121 of the Turkish Constitution, has promulgated on May 10, 1990 the decrees with force of law Nos. 424 and 425.  These decrees may in part result in derogating from rights enshrined in the following provisions of the European Convention for Human Rights and Fundamental Freedoms: Articles 5, 6, 8, 10, 11 and 13.  A descriptive summary of the new measures is attached hereto ...".

43. In the descriptive summary of the content of Decree-Laws Nos. 424 and 425 appended to the Turkish Government's letter of 23 August 1990, it is stated that, "by virtue of the decrees having force of Law No. 424 and 425 on the state of emergency region, the state of emergency region governorship has been empowered with the following additional powers ..."

44. In a letter of 3 January 1991, the Turkish Government gave notice that Decree-Law No. 424 had been replaced by Decree-Law No. 430, adopted on 16 December 1990.

45. In a letter of 5 May 1992, the Permanent Representative of Turkey stated as follows:

"As most of the measures described in the decrees which have the force of law nos. 425 and 430 that might result in derogating from rights guaranteed by Articles 5, 6, 8, 10, 11 and 13 of the Convention, are no longer being implemented, I hereby inform you that the Republic of Turkey limits henceforward the scope of its Notice of Derogation with respect to Article 5 of the Convention only.  The Derogation with respect to Articles 6, 8, 10, 11 and 13 of the Convention is no longer in effect; consequently, the corresponding reference to these Articles is hereby deleted from the said Notice of Derogation."

46. The Commission notes that Decree-Laws Nos. 424, 425 and 430, which are referred to in the derogation of 6 August 1990 and the letter of 3 January 1991, apply, according to the descriptive summary of their content, only to the region where a state of emergency has been proclaimed, which, according to the derogation, does not include the city of Ankara (see para. 33).

47. The Commission observes that the applicant was taken into police custody in Ankara and his detention was extended on the orders of the public prosecutor attached to Ankara State Security Court under the provisions of the Code of Criminal Procedure applicable to provinces not under a state of emergency (in conjunction with section 30 of Law No. 3842 of 1 December 1992). These provisions are certainly not covered by Turkey's derogation under Article 15 of the Convention.  In this respect, the Commission recalls that the present case can be distinguished from that of Aksoy v. Turkey (see, Eur. Court HR, Aksoy v. Turkey judgment of 18 December 1996, Reports of Judgments and Decisions 1996-VI , p. 2281 and 2284, paras. 70 and 84), in which the applicant was placed in police custody in Mardin, a province where a state of emergency is in force, and which was examined by the Court in the light of Articles 5 and 15 of the Convention (op. cit., p. 2284, paras. 85 and 86).

48. It follows that the Government's preliminary objection under Article 15 of the Convention cannot be upheld in the instant case.

D. As regards Article 5 para. 3 of the Convention

49. The applicant complains that he was kept in police custody for eight days without being brought before a judge, contrary to Article 5 para. 3 of the Convention, which provides as follows:

"3.  Everyone arrested or detained in accordance with the provisions of paragraph 1. c. of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial."

50. The Government observe that under Article 30 of Law No. 3842, persons arrested for an offence triable by the State Security Courts must be brought before a judge within 48 hours at the latest, but that this time was increased to 15 days for collective offences, as was the case here, where the nature of the charges laid against the applicant require that he be detained for a longer time.

51. The Government argue that the applicant was arrested by the policemen and held in detention for seven days with the authorisation of the Public Prosecutor and that on the last day of his detention he was first brought before the Public Prosecutor and thereafter before the Judge to be questioned. The Government thus consider that the custodial measure was ordered by a competent authority and was enforced by that authority in accordance with the requirements laid down by law. They conclude that, under domestic law, the national authorities did not in any way exceed the margin of appreciation accorded to governments under the Convention and that the measures in question were not in any way disproportionate.

52. The applicant disputes all these arguments. He argues that his length of detention in custody was excessive and unreasonable, contrary to the Convention and to the established case-law of the Convention organs.

53. In this regard, the Commission recalls the importance of Article 5 para. 3 read together with Article 5 para. 1 (c), the purpose of which is to provide guarantees against prolonged detention in the hands of the police or other state authorities. This is an essential feature of the guarantee embodied in Article 5 para. 3, which is intended to minimise the risk of arbitrariness (see Eur. Court HR, Brogan and Others judgment of 29 November 1988, Series A no. 145-B, pp. 31-32, para. 58).

54. The issue of whether the authorities have complied with the requirement of promptness must be assessed in each case according to its special features (see Eur. Court HR, De Jong, Baljet and Van den Brink judgment of 22 May 1984, Series A no. 77, p. 25, para. 52).

55. The Commission recalls that the Convention organs have held that a period of detention exceeding four days is incompatible with the requirement of promptness (see, among many other authorities, Eur. Court HR, Sakık and Others v. Turkey judgment of 26 November 1997, Reports 1997-VII, p. 2624, para. 45).

56. The Commission notes that the applicant was detained without being brought before a judge or other officer for at least seven days. 

57. In the light of these considerations, the Commission considers that the applicant was not brought "promptly" before a judge or other officer authorised by law to exercise judicial power, as required by Article 5 para. 3 of the Convention.

CONCLUSION

58. The Commission concludes, unanimously, that in the present case there has been a violation of Article 5 para. 3 of the Convention.

E. As regards Article 5 para. 4 of the Convention

59. The applicant alleges that Turkish law does not afford any effective remedy by which the lawfulness of his police custody could be decided speedily, contrary to Article 5 para. 4 of the Convention, which provides as follows:

"Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful."

60. The applicant points out that the Code of Criminal Procedure and Law No. 3842 provide for the possibility of challenging the lawfulness of custody by means of an application to a magistrate - but only where the offence does not fall within the jurisdiction of a State Security Court.  In proceedings before a State Security Court, there is no provision for judicial review of a prosecutor's decision to order custody for up to 15 days (see para. 32 above).

61. The Government recall that the applicant was remanded in custody by decision of the Ankara State Security Court judge assigned to rule on matters of detention and assert that this procedure provided the supervision required by Article 5 para. 4 of the Convention.

62. In the case of Sargın and YaÄŸcı v. Turkey (Nos. 14116/88 and 14117/88, Partial Decision of 11 May 1989, D.R. 61 p. 250), the Commission, as part of its consideration of the question whether domestic remedies had been exhausted, noted that there was no adequate and effective means of testing the lawfulness of detention in police custody against Article 5 of the Convention in proceedings before a State Security Court.  The Commission considers that this finding can be applied to the present case as regards the merits of those complaints based on the absence of a remedy against any decision to detain.  This appears to demonstrate that there is, in Turkish law, no remedy which satisfies the requirements of Article 5 para. 4 of the Convention (see, Sakık and Others v. Turkey judgment, op. cit., p. 2625, para. 53).

63. Furthermore, the Commission wishes to point out that the conditions in which the applicant was held in police custody, in particular his total isolation, made it impossible for him effectively to exercise any remedy.  It recalls in particular that the applicant had no opportunity to consult a lawyer.  Yet the remedy required by Article 5 para. 4 must be judicial in nature, which presupposes "that the person concerned should have ... the opportunity to be heard either in person or, where necessary, through some form of representation, failing which he will not have been afforded the fundamental guarantees of procedure applied in matters of deprivation of liberty" (see, Eur. Court HR, Winterwerp v. the Netherlands judgment of 24 October 1979, Series A no. 33, p. 24, para. 60).  In the instant case, the applicant did not have this opportunity during his detention in police custody.

CONCLUSION

64. The Commission concludes, unanimously, that in the present case there has been a violation of Article 5 para. 4 of the Convention.

F. As regards Article 5 para. 5 of the Convention

65. The applicant maintains that he has no right to compensation for the excessive length of his police custody, contrary to Article 5 para. 5 of the Convention, which reads as follows:

"Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation."

66. The Government submit that the applicant has failed to exhaust domestic remedies: they argue that Law No. 466 on the compensation of persons unlawfully arrested or detained provides that the applicant has a right to compensation, which he can exercise once his trial is over.

67. They add that, in cases of illegal detention, a request for compensation can be submitted within three months following the final decision of the trial court under the terms of Law No. 466 on compensation payable to persons unlawfully arrested or detained.

68. In this regard, the Government have referred to a number of judgments ( inter alia , judgment no. 1/117-389 of 22 September 1986), in which the Court of Cassation had allowed an application for compensation, under Law No. 466, for those who had been acquitted after standing trial. The Government stated that in the judgments of the Court of Cassation the detention period was taken into consideration in granting compensation under Article 1 of Law No. 466.

69. The applicant alleges that a long period of custody by order of the Public Prosecutor is authorised under domestic law and accordingly there could be no claim for compensation in this respect.

70. The Commission has come to the conclusion that the length of the applicant's detention in police custody for at least seven days constitutes a violation of Article 5 para. 3 of the Convention. It also held that the lack of a means to challenge any decision concerning his detention in police custody constitutes a violation of Article 5 para. 4 of the Convention (see paras. 58 and 64).

71. The Commission has already noted that, at the material time, under the relevant Turkish legislation, the maximum length of detention in police custody in proceedings before a State Security Court was 15 days for offences committed by persons acting in concert, so that a claim for compensation before the national courts on the grounds that holding someone in police custody for at least seven days is contrary to the Convention has no prospect of success (see, Sakık and Others v. Turkey judgment, op. cit., p. 2626, para. 60).

72. The Commission observes that the Government have referred to a number of judgments in which the Court of Cassation had granted compensation, under Law No. 466, for those who had been acquitted after standing trial.

73. However, the Commission points out that the applicant complained of the length of his detention in police custody, 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 brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to take proceedings by which the lawfulness of his detention be decided speedily by a court is not the same as the right to receive compensation for detention. Paragraphs 3 and 4 of Article 5 of the Convention covers the former and paragraph 5 of Article 5 the latter (see, Eur. Court HR, Yağcı and Sargın v. Turkey judgment of 8 June 1995, Series A no. 319-A, p. 17, para. 44).

74. Accordingly, the Commission notes that, in the instant case, the length of time for which the applicant was held in police custody is contrary to Article 5 para. 3 of the Convention, but not to domestic legislation (specifically, the provisions governing the length of detention in police custody in proceedings before State Security Courts).  Since the applicant's detention was neither unlawful nor unjustified under Turkish law, he has no right to compensation, under the provisions of Law No. 466, for the excessive length of his police custody.

75. It follows that the applicant, whose detention was contrary to Article 5 paras. 3 and 4 of the Convention, had no enforceable right to compensation under Turkish law.

CONCLUSION

76. The Commission concludes, unanimously, that in the present case there has been a violation of Article 5 para. 5 of the Convention.

G. Recapitulation

77. The Commission concludes, unanimously, that in the present case there has been a violation of Article 5 para. 3 of the Convention (para. 58).

78. The Commission concludes, unanimously, that in the present case there has been a violation of Article 5 para. 4 of the Convention (para. 64).

79. The Commission concludes, unanimously, that in the present case there has been a violation of Article 5 para. 5 of the Convention (para. 76).

  M.-T. SCHOEPFER S. TRECHSEL

   Secretary    President

          to the Commission         of the Commission

[1] The term “former” refers to the text of the Convention before the entry into force of Protocol No. 11 on 1 November 1998.