Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 31789/96

by Argihist SOLDUK

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 7 September 1995

by Argihist Solduk against Turkey and registered on 7 June 1996 under

file No. 31789/96;

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

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, born in 1968, is a Turkish citizen and resident

in izmir. He is represented before the Commission by Mr Mehmet Nur

Terzi, a lawyer practising in izmir.

The facts of the present case, as submitted by the applicant, may

be summarised as follows.

On 9 July 1992 the applicant, a university student at the time

in izmir, was arrested by policemen. He was accused of having

participated in a demonstration in izmir against the territorial

integrity of the State on 18 May 1991.

On 15 July 1992 the applicant was brought before the izmir State

Security Court. The same day the applicant was placed in detention on

remand by the court.

On 1 September 1992 the applicant was released by the izmir State

Security Court.

On 24 November 1992 the applicant was acquitted by the izmir

State Security Court on account of insufficient evidence for his

conviction.

On 13 January 1993 the applicant brought an action before the

izmir Assize Court. He requested that a certain amount of compensation

be granted to him in accordance with Law No. 466 of 7 May 1964, which

guarantees the possibility of compensation to any person who is

acquitted or discharged after standing trial.

On 28 May 1993 the izmir Assize Court declined jurisdiction

ratione loci. The court ruled that the case must be referred to the

istanbul Assize Court as the applicant was actually resident in

istanbul.

On 1 November 1993 the istanbul Assize Court also declined

jurisdiction ratione loci and referred the case to the Bakirköy Assize

Court.

On 2 March 1994 the Bakirköy Assize Court dismissed the

applicant's application for compensation. The court ruled that it must

have jurisdiction ratione loci to decide on the merits of the case. The

court, referring to the applicant's address in his petition, stated

that there was no address in Bakirköy as stated by the applicant, that

he could not be found and that his lawyer in izmir had not replied to

the court's request for the address of the applicant.

On 28 March 1994 the applicant's lawyer lodged an appeal against

the judgment of the Bakirköy Assize Court. His lawyer claimed that the

court's judgment was contrary to the law as the court must itself find

the applicant's address through police and that it was illogical to

consider that the applicant did not have any address.

On 3 April 1995 the Court of Cassation dismissed the appeal and

upheld the judgment of the Bakirköy Assize Court.

COMPLAINTS

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

that he was not granted any compensation by the Bakirköy Assize Court

although he was deprived of his liberty for 54 days.

2. The applicant complains under Article 13 of the Convention that

there were no effective domestic remedies allowing any person who is

acquitted or discharged after standing trial to obtain compensation.

THE LAW

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

Convention that he was not granted any compensation by the Bakirköy

Assize Court although he was deprived of his liberty for 54 days.

Article 5 para. 5 (Art. 5-5) of the Convention provides 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."

The Commission recalls that under Article 5 para. 5 (Art. 5-5)

of the Convention the right to compensation for any material or moral

damage sustained as a result of a detention is plainly conditioned on

a breach of one of the paragraphs of Article 5 (Art. 5). It follows

that the Commission cannot consider an applicant's claim exclusively

based on Article 5 para. 5 (Art. 5-5) unless a breach of Article 5

paras. 1 to 4 (Art. 5-1, 5-2, 5-3, 5-4) has been established either

directly or in substance (No. 7950/77, Dec. 4.3.80, D.R. 19, p. 215).

The Commission notes that the applicant was held in detention for

54 days between 9 July 1992 and 1 September 1992. However, the

application was introduced with the Commission on 7 September 1995,

which is more than six months after the end of this detention. The

Commission is therefore prevented from proceeding to an examination of

the applicant's complaint based on his detention on remand as it has

been lodged out of time.

The Commission observes that the applicant was acquitted on

24 November 1992 and the Turkish courts did not make any finding of a

violation of Article 5 (Art. 5) of the Convention. Moreover, the

Commission recalls that the Convention does not guarantee a general

right to compensation for detention of an accused, following his

acquittal.

An examination of the facts does not disclose any appearance of

a breach of Article 5 paras. 1 to 4 (Art. 5-1, 5-2, 5-3, 5-4) of the

Convention. Therefore, Article 5 para. 5 (Art. 5-5) of the Convention

is not applicable in the present case.

It follows that this part of the application is outside the

competence of the Commission ratione materiae and must accordingly be

rejected as being incompatible with the provisions of the Convention,

within the meaning of Article 27 para. 2 (Art. 27-2).

2. The applicant complains under Article 13 (Art. 13) of the

Convention that there were no effective domestic remedies allowing any

person who is acquitted or discharged after standing trial to obtain

compensation.

Article 13 (Art. 13) of the Convention provides as follows:

"Everyone whose rights and freedoms as set forth in this

Convention are violated shall have an effective remedy before a

national authority notwithstanding that the violation has been

committed by persons acting in an official capacity."

The Commission has examined the applicant's complaints based on

Article 5 para. 5 (Art. 5-5) of the Convention. It has held that those

complaints are outside the scope of the Convention.

It follows that Article 13 (Art. 13) does not apply, either, in

the present case. On this point, the Commission refers to its

established case-law (No. 9984/82, Dec. 17.10.85, D.R. 44, p. 54; No.

23997, Dec. 15.5.95, D.R. 81, p. 102; No. 24359/94, Dec. 30.6.95, D.R.

82, p. 56). Therefore this complaint must be dismissed as being

incompatible, ratione materiae, with the provisions of the Convention

pursuant to Article 27 para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.-T. SCHOEPFER J. C. GEUS

Secretary President

to the Second Chamber of the Second Chamber

Menu

SOLDUK v. TURKEY

SOLDUK v. TURKEY

LEXI