Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 25091/94

by Arzu and imam SAHiN

against Turkey

The European Commission of Human Rights sitting in private on

30 June 1997, the following members being present:

M. S. TRECHSEL, President

Mme G.H. THUNE

Mme J. LIDDY

MM. G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

H. DANELIUS

L. LOUCAIDES

M.P. PELLONPÄÄ

B. CONFORTI

I. BÉKÉS

J. MUCHA

D. SVÁBY

A. PERENIC

C. BÎRSAN

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

M. VILA AMIGÓ

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to application No. 25091/94 introduced on 28 April

1994 by Arzu and imam Sahin against Turkey and joined on 9 September

1994 with application No. 23145/93 lodged by Tahir Elçi (originally in

the name of Ömer Elçi) and others against Turkey;

Having regard to :

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on 18

November 1994 and the observations in reply submitted by the

applicants on 18 January 1995;

- the parties' oral submissions at the hearing on 2 December 1996;

- the Commission's decision of 2 December 1996 on the admissibility

of the application;

- the complementary observations submitted by the applicants on

4 February 1997 and the observations in reply submitted by the

Government on 17 April 1997.

Having deliberated;

Decides as follows:

THE FACTS

The present application has been joined with application No.

23145/93, and the two applications have been brought on behalf of the

applicants, lawyers arrested and detained under emergency law in

November and December 1993 in Diyarbakir in South East Turkey. They are

represented before the Commission by Professor Kevin Boyle and Ms.

Françoise Hampson, both of the University of Essex, England.

The facts of the present case, which are in dispute between the

parties, may be summarised as follows.

I. The applicants state that the following occurred.

On 7 December 1993, imam Sahin was taken into custody by

policemen from the Anti-Terror Department in istanbul, when he was to

attend a hearing before the State Security Court. He was taken to the

Anti-Terror Department, and after being held there for a certain

period, he was taken to his house where a search was carried out, but

no offensive object was found. His wife Arzu Sahin, who was at home,

was also taken into custody, and they were both blindfolded and put

into a cell at the Security Directorate. On 11 December 1993 they were

taken to Diyarbakir by plane and, upon their arrival there, to the

Diyarbakir Intelligence and Interrogation Centre.

At the Interrogation Centre, imam Sahin was forced to strip

completely naked. He was blindfolded and subjected to ill-treatment

such as "falaka", cold water torture, squeezing of genitals,

suspension, electric shocks, foul language, and threats against his

wife were also made to him during the 14 days he was held for

interrogation. During the period he was held in custody, he was only

given a quarter of a loaf (about 200 g) of bread a day. He did not see

his wife during this time, nor did he know anything about her fate.

On the day he was to be brought before the court, he was taken

again for interrogation in the middle of the night. They took hold of

his hand and made him scribble blindfolded on some papers. He does not

know what these papers were.

Arzu Sahin was also detained at the Intelligence Interrogation

Centre and interrogated under duress. She was detained in bad

conditions with meagre rationing of bread once a day and minimal access

to toilet facilities.

On 21 December 1993, Arzu and imam Sahin were brought before the

examining judge and remanded in custody by the examining judge on the

claim that a person by the name of Abdülhakim Güven, who wished to

benefit from the Remorse Law, had incriminated them. However, they do

not know the person in question and have had no relations with him.

In the indictment issued on 22 December 1993 Arzu Sahin was

charged, inter alia, with "drawing up documents belittling the Turkish

State and faxing them to human rights organisations in European

countries".

Arzu and imam Sahin were released on bail on 17 February 1994.

II. The respondent Government state as follows.

Following the statements given by Abdülhakim Güven who was on

trial for being an active member of the terror organisation PKK, an

investigation had been instigated against various persons, including

Arzu and imam Sahin.

As a consequence of the preliminary investigation, the chief

public prosecutor of the State Security Court of Diyarbakir filed a

criminal action with the indictment dated 22 December 1993 against 23

defendants, including Arzu and imam Sahin.

In this indictment, 14 lawyers among the 23 defendants were

charged with the offence of being members of and acting for the terror

organisation PKK. Some of them were suspected of having committed

serious crimes such as helping PKK terrorists to get weapons, smuggling

in and out of prison proscribed items or instruments for committing

crimes within prison such as cyanide or a knife for the PKK inmates,

receiving and implementing instructions from the PKK leadership.

On 17 February 1994 there was a first hearing before the State

Security Court. Arzu and imam Sahin as well as other defendants were

released on the same day.

The criminal action before the State Security Court against the

23 defendants is still going on. According to the latest information,

the Court was expected to conclude the case in early 1997.

III. The records submitted in the case show that, at the hearing on

17 February 1994 before the Diyarbakir State Security Court, most of

the charged persons, including Arzu and imam Sahin, complained of

torture, ill-treatment or undue pressure having been exercised on them

during their police custody. At a subsequent hearing on 28 April 1994

before the State Security Court, one of Arzu and imam Sahin's co-

accused also referred to such treatment.

After the hearings on 17 February and 28 April 1994, the State

Security Court took certain procedural decisions in which, however, no

mention was made of the complaints relating to torture, ill-treatment

or undue pressure.

PROCEEDINGS BEFORE THE COMMISSION

On 2 December 1996 the Commission declared the present

application and application No 23145/93 (they had been joined on 9

September 1994) inadmissible insofar as the complaints raised by Arzu

Sahin, imam Sahin and certain other applicants in regard to torture,

ill-treatment or undue pressure were concerned. The Commission also

declared inadmissible the complaints concerning the length of police

custody and declared admissible the remainder of the applications.

By letter of 4 February 1997 the applicants stated that the

decision to declare their complaints regarding ill-treatment in police

custody inadmissible was based on a mistake as to the time at which

they had introduced these complaints before the Commission.

The Government submitted their observations on this matter on

17 April 1997.

THE LAW

The Commission recalls that in its decision on 2 December 1996

on the admissibility of the present application as well as application

No 23145/93, it declared inadmissible Arzu and imam Sahin's complaints

under Article 3 (Art. 3) of the Convention on the ground that these

complaints had not been introduced within the six months time-limit

provided for in Article 26 (Art. 26) of the Convention. The Commission

based this conclusion on the finding that Arzu and imam Sahin had only

raised this complaint in their final submissions which had been

received on 4 November 1996.

Arzu and imam Sahin have pointed out that in connection with the

introduction of their application on 28 April 1994 a statement by imam

Sahin had been submitted which contained allegations of torture and

that their separate application form dated 3 September 1994 had

contained a specific complaint of violations of Article 3 (Art. 3) of

the Convention.

The Commission first notes that, in the applicant's submissions

of 22 April 1994, it was indeed alleged that certain applicants in

application No. 23145/93 had been subjected to treatment contrary to

Article 3 (Art. 3). However, Arzu and imam Sahin were not among the

persons alleged to have been exposed to such treatment. The fact that

a statement by imam Sahin concerning the treatment to which he claimed

to have been subjected was submitted on that occasion is not a

sufficient basis for considering that a specific complaint of ill-

treatment was made also on his behalf.

It is true, however, that in their separate application of 3

September 1994 Arzu and imam Sahin did submit that they were victims

of violations of Article 3 (Art. 3). Consequently, the Commission's

decision on admissibility contains an error insofar as it is claimed

that these two applicants did not complain of ill-treatment before

their final submissions which were received on 4 November 1996. The

Commission must therefore annul its decision in this regard and proceed

to a new examination of Arzu and imam Sahin's complaints of violations

of Article 3 (Art. 3) on the basis that these complaints were first

made in their application of 3 September 1994.

When the Commission, in its decision on admissibility, applied

the six months rule in regard to the complaints by several applicants

regarding ill-treatment, it did not indicate a precise date as the

starting-point of the six months period but stated in general terms,

with regard to all the applicants, that that period should be

considered to have started running "not later than 28 April 1994",

because "the failure of the judicial authorities to act must have

become gradually apparent in the period up to 28 April 1994". However,

it is now necessary to examine the specific situation of the applicants

Arzu and imam Sahin.

The reason why the date of 28 April 1994 was mentioned as the

latest starting-point of the six months time-limit was that at the

hearing on that date before the State Security Court one of the accused

- who was not Arzu or imam Sahin - complained of ill-treatment.

However, as regards Arzu and imam Sahin, the date of 28 April 1994 has

no special significance. What is relevant in their case is the fact

that they complained of ill-treatment to the State Security Court on

17 February 1994 and that no mention was made of this complaint in the

procedural decisions taken by the Court on that date. They should

therefore have been aware, as from 17 February 1994, or very soon

thereafter, that no action would be taken at the domestic level, and

they should have complained to the Commission within six months from

that time in order to comply with the conditions of Article 26

(Art. 26) of the Convention. Consequently, the six months time-limit

expired on or about 17 August 1994, i.e. before Arzu and imam Sahin

submitted their application form dated 3 September 1994.

The Commission finds, therefore, that the applicants Arzu and

imam Sahin have introduced their complaints under Article 3 (Art. 3)

of the Convention out of time and that these complaints are

inadmissible under Articles 26 and 27 para. 3 (Art. 26, 27-3) of the

Convention.

For these reasons, the Commission,

unanimously,

DECIDES TO RE-OPEN its examination of the admissibility of the

application insofar as it concerns Arzu and imam Sahin's

complaints of ill-treatment ;

by a majority,

DECLARES INADMISSIBLE this part of the application.

H.C. KRÜGER S. TRECHSEL

Secretary President

to the Commission of the Commission

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SAHiN v. TURKEY

SAHiN v. TURKEY

LEXI