Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 28010/95

by Hüseyin SiMSEK

against Turkey

__________

The European Commission of Human Rights (Second Chamber) sitting

in private on 16 April 1998, the following members being present:

MM J.-C. GEUS, President

M.A. NOWICKI

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

MM F. MARTINEZ

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 application introduced on 24 April 1995 by

Hüseyin Simsek against Turkey and registered on 25 July 1995 under file

No. 28010/95;

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

of Procedure of the Commission;

Having regard to the observations submitted by the respondent

Government on 30 July 1997 and the observations in reply submitted by

the applicant on 5 September 1997;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a Turkish citizen, was born in 1963 and resides

in Tunceli. He is represented before the Commission by Aydin Erdogan,

a lawyer practising in Ankara.

The facts of the case, as submitted by the parties, may be

summarised as follows.

The particular circumstances of the case

The police carried out operations against TKP-TIKKO activists and

H.G. was taken into police custody. During his interrogation he

confessed that he was the supervisor of the 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 the meeting with a man, named O, which was a code name. On

9 January 1995 the police arrested both of them at the meeting point.

Following their arrest, they signed an incident report,

concerning their arrest, which was drafted by the policemen and in

which it was stated that the arrestees were accused of being members

of an illegal terrorist organisation.

The person with the code name O was in fact the applicant, who

had formerly been convicted of being a member of the leftist terrorist

group TKP-TIKKO. After serving his sentence, he had been released in

1989. On 9 January 1995 the applicant was taken into police custody in

Ankara on suspicion of continuing his activities as a member of the

leftist terrorist group TKP-TIKKO.

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.

On 16 January 1995, after interviewing the applicant, the judge

at the State Security Court at Ankara ordered him to be remanded in

custody.

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'etat against the Grand National Assembly. The Prosecutor relied

on Article 168 para. 2 of the Turkish Criminal Code and Article 5 of

Law No. 3713.

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. 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-TIKKO when he was charged,

there were no grounds for imposing a punishment on him.

The Prosecutor appealed. He submitted that the applicant had

never terminated his relations with the above-mentioned terrorist

group. He requested that the verdict be set aside.

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.

COMPLAINTS

1. The applicant complains under Article 5 of the Convention that

his detention in police custody for eight days was unlawful. He

explains that Article 16 of Law No. 2845 permits up to fifteen days'

detention in police custody in the case of a collective offence, but

as the case concerned only him, this exception should not have been

applied and he should have been brought before a judge within 48 hours.

2. He complains under Article 5 para. 2 of the Convention that he

was not informed promptly of the reasons for his arrest or of any

charge against him.

3. He also complains under Article 5 para. 3 of the Convention that

he was kept in police custody for eight days without being brought

before a judge.

4. He alleges under Article 5 para. 4 of the Convention that Turkish

law does not afford any effective remedy by which the lawfulness of his

police custody could be decided speedily by a court.

5. He maintains, under Article 5 para. 5 of the Convention, that he

has no right to compensation for excessive length of police custody as

his detention was lawful according to the domestic law.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 24 April 1995 and registered

on 25 July 1995.

On 26 February 1997 the Commission decided to communicate the

applicant's complaints under Article 5 paras. 3, 4 and 5 of the

Convention.

The Government's written observations were submitted on 30 July

1997, after an extension of the time-limit fixed for that purpose. The

applicant replied on 5 September 1997.

THE LAW

1. The applicant firstly complains that his detention for eight days

was unlawful according to Law No. 2845 since there was no collective

offence in his case.

The Commission will examine the applicant's first complaint, as

to the unlawfulness of his detention, under paragraph 1 of Article 5

(Art. 5) of the Convention.

Article 5 para. 1 (Art. 5-1) of the Convention, in so far as

relevant, provides as follows:

"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 a procedure

prescribed by law."

The Government note in this regard that the applicant was a

former member of an illegal terrorist organisation. He was arrested

when he met another former militant, H.G., on suspicion of having

continued his activities within the organisation. H.G. stated that the

applicant was an active supervisor in the organisation.

The applicant disputes the Government's arguments. He states that

his meeting with H.G. was just a get-together and that this meeting was

arranged by the police in order to accuse him of being a member of the

terrorist organisation. He also alleges that the police put pressure

on H.G. to arrange a meeting with him and to state that he was an

active supervisor in the organisation. He finally states that he was

not involved in any of the activities of the terrorist organisation.

The Commission recalls, at the outset, that, on the question

whether detention is "lawful", including whether it complies with "a

procedure prescribed by law", the Convention refers back essentially

to national law and lays down the obligation to conform to the

substantive and procedural rules thereof. However, it requires in

addition that any deprivation of liberty should be consistent with the

purpose of Article 5 (Art. 5), namely "to protect individuals from

arbitrariness" (see Eur. Court HR, Wassink v. the Netherlands judgment

of 27 September 1990, Series A no. 185-A, p. 11, para. 24).

As regards the instant case, the Commission notes that the

applicant was arrested on suspicion of having continued his activities

within an illegal terrorist organisation. The offence he was charged

with, under Article 5 of Law No. 3713 (Anti-Terrorist Law), was itself

of a "collective nature" and it permits (before it was amended on

6 March 1997) a police custody up to fifteen days without being brought

before a judge.

Accordingly, on the facts, the Commission considers that the

applicant's detention in police custody for eight days can be

considered as "in accordance with a procedure prescribed by law" on the

basis of "reasonable suspicion" of having committed an offence within

the meaning of Article 5 para. 1 (Art. 5-1) of the Convention.

It follows that this part of the application must be rejected as

being manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

2. The applicant complains that he was not informed promptly of the

reasons for his arrest or of any charge against him. He invokes

Article 5 para. 2 (Art. 5-2) of the Convention which provides as

follows.

"Everyone who is arrested shall be informed promptly, in a

language which he understands, of the reasons for his

arrest and of any charge against him".

The Government argue that the applicant was very well informed

of the fact that he was arrested by the police for an investigation

concerning the illegal activities of the terrorist organisation,

TKP/ML-TiKKO, as he signed the incident report in which his arrest and

the reasons for his arrest were clearly defined and described.

The applicant does not reply on this point.

The Commission observes that, according to the observations

submitted by the Government which were not disputed by the applicant,

the policemen arrested the applicant at the scene of a meeting which

was arranged by the police and a person suspected of being a member of

an illegal terrorist organisation. The applicant was at least aware of

the matter when he signed the incident report, which clearly mentions

the reasons of his arrest.

The Commission therefore considers that the applicant was

sufficiently informed of the legal basis for his detention in domestic

law.

It follows that this part of the application must be rejected as

being manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

3. The applicant complains under Article 5 para. 3 (Art. 5-3) of the

Convention that he was kept in police custody for eight days without

being brought before a judge.

Furthermore, he alleges under Article 5 para. 4 (Art. 5-4) of the

Convention that Turkish law does not afford any effective remedy by

which the lawfulness of his police custody could be decided speedily

by a court.

The respondent Government base their first objection on

Article 15 (Art. 15) of the Convention. They recall their derogation

of 5 May 1992, with regard to the matters complained of under Article

5 (Art. 5) of the Convention, according to which "the Republic of

Turkey is exposed, in South-East Anatolia, to threats to its national

security which have steadily increased in extent and intensity ... so

that they constitute a threat to the life of the nation within the

meaning of Article 15 (Art. 15) of the Convention ... National security

is being threatened mainly in the provinces of South-East Anatolia and

also partly in the neighbouring provinces ... The Government have had

no alternative, given the intensity and diversity of the terrorist

activities, but to deploy their security forces in order to suppress

them ..."

The Government 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, on the facts, it

is impossible to provide court supervision in accordance with Article 5

(Art. 5) of the Convention owing to the difficulties inherent in

investigating and suppressing terrorist criminal activities.

The Government consider that the measures taken against the

applicant are in keeping with the national authorities' concern to

fight terrorism under the legislation pertaining to states of

emergency. They observe in this respect that the applicant's arrest was

based on the existence of reasonable grounds for suspecting him of

having committed an offence and that it was made in accordance with

Article 30 of Law No. 3842 (Law amending the Code of Criminal

Procedure).

As regards the length of his detention in police custody, 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 offence, as was the case

here, where the nature of the charges laid against the applicant

require that he be detained for a longer time.

The Government argue that the applicant was arrested by the

policemen and held in detention for seven days with the authorization

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.

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.

The Commission considers, in the light of the parties'

submissions, that this part of the case raises complex issues of law

and of fact under the Convention, the determination of which should

depend on an examination of the merits of the application. The

Commission concludes, therefore, that this part of the application is

not manifestly ill-founded, within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention. No other grounds for declaring it

inadmissible have been established.

4. The applicant maintains under Article 5 para. 5 (Art. 5-5) of the

Convention that he has no right to compensation for the excessive

length of his police custody as his detention was lawful according to

domestic law.

The Government submit that the applicant has failed to exhaust

domestic remedies: they argue that a request for compensation based on

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.

The applicant recalls that there are no remedies in domestic law

to challenge the lawfulness of his detention. He affirms that the

domestic law itself is contrary to the Convention.

The Commission observes that, in proceedings before the State

Security Courts, the length of detention in police custody could be

extended to 15 days at that time by order of the prosecution. The

length of detention in police custody being challenged by the applicant

did not therefore exceed the maximum time-limit provided for in

domestic law. According to Law No. 466, cited by the Government, an

action against the authorities can only be for compensation for damage

suffered as a result of unlawful deprivation of freedom.

In earlier cases, on similar facts, the Commission has already

found that this remedy was ineffective on the grounds, inter alia, that

the Turkish judicial authorities to which the applicant had complained

had already concluded that the detention in question was lawful (see,

for example, Nos. 14116/88 and 14117/88 (joined), Dec. 11.5.87,

D.R. 61, p. 250; No. 23878-23883/94 (joined), Dec. 25.5.95, D.R. 81,

p. 92).

The Commission considers, in the light of the foregoing, that the

Government's submission that the applicant has failed to exhaust

domestic remedies cannot be upheld.

The Government state 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.

They add that, since the applicant has failed to invoke Law No. 466,

the application is manifestly ill-founded within the meaning of Article

27 (Art. 27) of the Convention.

The applicant disputes the Government's arguments. He recalls

that his complaint relates to the length of his police custody and its

unlawful nature. He submits 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.

The Commission considers, in the light of the parties'

submissions, that this part of the case raises complex issues of law

and of fact under the Convention, the determination of which should

depend on an examination of the merits of the application. The

Commission concludes, therefore, that this part of the application is

not manifestly ill-founded, within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention. No other grounds for declaring it

inadmissible have been established.

For these reasons, the Commission, unanimously,

DECLARES ADMISSIBLE, without prejudging the merits, the

applicant's complaints regarding the length of his detention in

police custody and the right to compensation;

DECLARES INADMISSIBLE the remainder of the application.

M.-T. SCHOEPFER J.-C. GEUS

Secretary President

to the Second Chamber of the Second Chamber

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SIMSEK v. TURKEY

SIMSEK v. TURKEY

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