Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 29296/95

by Yüksel iGDELi

against Turkey

The European Commission of Human Rights (Second Chamber) sitting

in private on 2 July 1997, the following members being present:

Mrs. G.H. THUNE, President

MM. J.-C. GEUS

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

A. ARABADJIEV

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

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 26 October 1995

by Yüksel igdeli against Turkey and registered on 16 November 1995

under file No. 29296/95;

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, a Turkish citizen born in 1968, resides in

Istanbul. He is represented before the Commission by Messrs Naciye

Kaplan, Bedia Buran and Filiz Kostak, lawyers practising in Istanbul.

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

summarised as follows.

The police carried out some operations against PKK activists in

Istanbul during which A.Y. was taken into police custody. During his

questioning A.Y. confessed that he had participated in activities with

the applicant.

As a result of A.Y.'s confession, the police obtained the

applicant's address through his former records at the police station

and arrested him on 5 June 1995. When they searched him, they found a

note explaining the explosive chemicals used in making a bomb. The

applicant was taken into police custody on the same day.

In the course of the inquiry the police found that the applicant

had been previously charged with being a member of the PKK and had been

released pending trial on 21 December 1994.

On 5 June 1995 the Public Prosecutor at the Istanbul State

Security Court extended the applicant's detention in police custody to

12 June 1995.

On 12 June 1995, after having interviewed the applicant, the

assessor of the State Security Court at Istanbul ordered him to be

remanded in custody.

In an indictment dated 29 June 1995 the Public Prosecutor at the

Istanbul State Security Court charged the applicant under Article 168

of the Turkish Criminal Code with being a member of an armed

organisation with the aim of committing the offence of attempting to

modify the constitution of the Turkish Republic in part or entirely.

The indictment stated that the note found on him had been given to him

by one of the PKK supervisors in prison at the time of his release, in

order to be passed on to other activists. It was also established by

an expert that the explosive chemicals mentioned in the note were in

fact used in hand made bombs.

The criminal proceedings before the State Security Court are

still pending and the applicant is still in detention.

COMPLAINTS

Under Article 5 of the Convention, the applicant alleges

violations of:

- para. 1 in that there was no reasonable suspicion when the police

arrested him and the police used its authority in an arbitrary manner;

- para. 2 in that he was not informed promptly of the reasons for

his arrest or of any charge against him;

- para. 3 in that he was kept in police custody for seven days

without being brought before a judge;

- para. 4 in 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 applicant also alleges discrimination under Article 14 in

conjunction with Article 5 para. 3 of the Convention in that, in

accordance with the provisions of the Code of Criminal Procedure,

persons taken into police custody must be brought before a judge within

a maximum period of four days, whereas in relation to offences which

fall within the jurisdiction of the State Security Courts this period

may be extended to fifteen days.

THE LAW

1. The applicant alleges that his arrest by the police infringed

his right under Article 5 para. 1 (c) (Art. 5-1-c) of the Convention

as there was no reasonable suspicion that he had committed a criminal

offence when they arrested him.

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

that a person may be arrested or detained in the following case:

"...the lawful arrest or detention of a person effected for the

purpose of bringing him before the competent legal authority on

reasonable suspicion of having committed an offence or when it

is reasonably considered necessary to prevent his committing an

offence or fleeing after having done so;"

With regard to the level of suspicion, the Commission recalls

that the object of questioning during detention under sub-paragraph (c)

of Article 5 para. 1 (Art. 5-1) is to further the criminal

investigation by way of confirming or dispelling the concrete suspicion

grounding the arrest (see, inter alia, Eur. Court HR, Murray judgment

of 28 October 1994, Series A no. 300-A, p. 27, para. 55). Having a

reasonable suspicion presupposes the existence of facts or information

which would satisfy an objective observer that the person concerned may

have committed the offence. What may be regarded as "reasonable" will

however depend upon all the circumstances (see Eur. Court HR, Fox,

Campbell and Hartley judgment of Series A no. 182, p. 16, para. 32).

As regards the instant case, the Commission notes at the outset

that the applicant was arrested following the statement of A.Y., the

other accused, in which the latter confessed that he had participated

in activities with the applicant. When the police searched the

applicant they found a note explaining the explosive chemicals used in

making a bomb. It also notes that the applicant had been previously

charged with being a member of the PKK and had been released pending

trial. Accordingly, the Commission is of the opinion that there were

specific grounds for the police to suspect the applicant of being

involved in illegal activities related to the armed organisation PKK.

On the particular facts of the present case, the Commission is

satisfied that the applicant can be said to have been arrested on

"reasonable suspicion" of the commission of a criminal offence, within

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

Consequently, this part of the application must be dismissed as

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

(Art. 27-2) of the Convention.

2. The applicant further alleges that he was not informed promptly

of the reasons for his arrest or of any charge against him.

Article 5 para. 2 (Art. 5-2) of the Convention reads 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 Commission notes that when the policemen arrested the

applicant they found a note aimed for the illegal armed organisation,

the PKK, in which there were some explanations about the explosive

chemicals used in making a bomb. The applicant was then placed in

detention on remand by a judge and the public prosecutor charged him

with being a member of an armed organisation, the PKK. The Commission

finds that the note in question had a direct link with the applicant's

suspected activities and the police questioned him merely about that

subject. Therefore, the applicant was aware of the matter at least in

broad terms. Bearing all this in mind the Commission finds that the

facts of the case do not disclose any appearance of a violation of

Article 5 para. 2 (Art. 5-2) of the Convention (mutandis mutandis No.

8828/79, Dec. 5.10. 1982, D.R. 30 p. 93).

It follows that this part of the application must also be

dismissed as being manifestly ill-founded within the meaning of Article

27 para. 2 (Art. 27-2) of the Convention.

3. The applicant complains that he was not brought promptly before

a judge following his arrest, which is contrary to Article 5 para. 3

(Art. 5-3) of the Convention.

He also complains 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 applicant lastly alleges discrimination under Article 14 in

conjunction with Article 5 para. 3 (Art. 14+5-3) of the Convention in

that, in accordance with the provisions of the Code of Criminal

Procedure, persons taken into police custody must be brought before a

judge within a maximum period of four days, whereas in relation to

offences which fall within the jurisdiction of the State Security

Courts this period may be extended to fifteen days.

The Commission considers that it cannot, on the basis of the

file, determine the admissibility of these complaints and that it is

therefore necessary, in accordance with Rule 48 para. 2 (b) of the

Rules of Procedure, to give notice of these complaints to the

respondent Government.

For these reasons, the Commission,

DECIDES TO ADJOURN the examination of the applicant's complaints

that he was not promptly brought before a judge nor entitled to

take proceedings by which the lawfulness of his detention could

be decided speedily by a court and his complaint of

discrimination with regard to the length of the police custody;

unanimously,

DECLARES THE REMAINDER OF THE APPLICATION INADMISSIBLE.

M.-T. SCHOEPFER G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber

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iGDELi v. TURKEY

iGDELi v. TURKEY

LEXI