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AS TO THE ADMISSIBILITY OF

Application No.32578/96 Application No. 32579/96

by Abdullah ÇOLAK by Ömer FiLiZER

against Turkey against Turkey

The European Commission of Human Rights sitting in private on 30

June 1997, the following members being present:

Mr. S. TRECHSEL, President

Mrs. G.H. THUNE

Mrs. J. LIDDY

MM. E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

C.L. ROZAKIS

L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

P. LORENZEN

K. HERNDL

E. BIELIUNAS

E.A. ALKEMA

M. VILA AMIGÓ

Mrs. M. HION

MM. R. NICOLINI

A. ARABADJIEV

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 the applications introduced on 28 December 1995

by Abdullah Çolak and Ömer Filizer against Turkey and registered on

8 August 1996 under file Nos. 32578/96 and 32579/96;

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 applicants are Turkish citizens, born in 1969 and 1964

respectively, who reside in Istanbul. They are represented before the

Commission by Bedia Buran, Naciye Kaplan and Filiz Kostak, lawyers

practising in Istanbul.

The facts of the present case, as submitted by the applicants,

may be summarised as follows.

On 28 April 1995 the first applicant and on 29 April 1995 the

second applicant were taken into police custody in Istanbul on

suspicion of being members of the PKK.

On 29 April 1995 the Public Prosecutor at the Istanbul State

Security Court ordered the applicants' detention in custody until 9 May

1995. On 2 May 1995 the applicants signed statements which referred to

their activities in the PKK and their connections with other PKK

members.

On 5 May 1995 they were questioned by the Public Prosecutor at

the Istanbul State Security Court. In their questioning they denied

their statements made to the police.

On 6 May 1995 they were brought before a judge of the State

Security Court. They reiterated before the judge their statements to

the Public Prosecutor. The judge, having regard to the nature of the

accusations and the evidence already available, placed them in

detention on remand.

In an indictment dated 22 June 1995, the Public Prosecutor at the

Istanbul State Security Court charged the applicants with carrying out

acts aimed at the separation of a part of the State territories. Twelve

other persons, who had all been taken into police custody during the

operations carried out by the Istanbul police against the PKK in April

1995, were charged along with the applicants. The Public Prosecutor

gave a detailed account of the acts in which the accused were

allegedly involved. The Public Prosecutor requested that the applicants

be convicted and sentenced under Article 168 of the Turkish Criminal

Code and Article 5 of the Anti-Terror Law.

On 5 May 1995 the first applicant was examined by the Istanbul

Forensic Medicine Institute. In a report to the Public Prosecutor of

Istanbul, the institute's doctor noted that there was no sign of

beating, force or violence.

The first applicant later underwent a medical examination in the

prison. On 22 May 1995 the prison doctor, in his report, noted the

presence of fading bruises and ecchymosis on the left foot.

In the meantime, on 18 May 1995, the second applicant was

examined by the prison doctor who, in his report, noted the presence

of abrasions on the penis, pain in the chest and ecchymosis under the

left eye. He also observed that the applicant felt pain while chewing

and pain in both his shoulders.

On 1 June 1995 the applicants filed a complaint with the Public

Prosecutor of Fatih alleging that they had been ill-treated while in

police custody.

On 21 September 1995 the Public Prosecutor of Fatih dismissed the

allegations, pointing out that there was insufficient evidence in order

to bring any criminal proceedings against the Istanbul Security

Directorate Security officers.

On 13 October 1995 the applicants applied to the Assize Court of

Beyoglu to have the dismissal order by the Public Prosecutor of Fatih

set aside.

On 14 December 1995 the Assize Court of Beyoglu, ruling on the

evidence submitted to the court, rejected the applications.

The criminal proceedings against the applicants before the State

Security Court are still pending and they are still in detention.

COMPLAINTS

1. The applicants complain under Article 3 of the Convention that

they were ill-treated in police custody.

They allege that during their detention by the police, they were

physically abused.

The applicant Abdullah Çolak claims that he was kept blindfolded,

seriously beaten up and that in the course of such treatment he was

repeatedly forced to confess to criminal conduct.

The applicant Ömer Filizer also claims that he was kept

blindfolded, seriously beaten up and that in the course of such

treatment he was repeatedly forced to confess to criminal conduct. He

further alleges that he was subjected to various forms of ill-treatment

such as electric shocks and hanging by the arms.

2. The applicants further complain under Article 5 para. 3 of the

Convention that they were kept in police custody for seven days without

being brought before a judge.

3. They also complain under Article 5 para. 4 of the Convention that

Turkish law does not afford any effective remedy by which the

lawfulness of their police custody could be decided speedily by a

court.

The applicants allege under the same paragraph that they were not

kept in police custody in order to be brought before the judicial

authorities or because there were reasonable suspicions against them,

but for the purpose of extracting information and confessions from them

by force.

4. The applicants also complain under Article 6 paras. 1 and 3 (c)

of the Convention that they were not permitted the assistance of a

lawyer during their questioning by the police and later by the public

prosecutor.

5. The applicants lastly allege discrimination under Article 14 in

conjunction with Article 6 paras 1 and 3 (c) of the Convention in that,

according to the Code of Criminal Procedure, individuals have the right

to the assistance of a lawyer during questioning by the police and the

public prosecutor, whereas those suspected of offences which fall

within the jurisdiction of the State Security Courts are prevented from

enjoying this right.

THE LAW

1. The applicants complain under Article 5 para. 3 (Art. 5-3) of the

Convention that they were kept in police custody for seven days without

being brought before a judge.

They also complain 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 their police custody could be decided speedily

by a court. They further allege that they were not kept in police

custody in order to be brought before the judicial authorities or

because there were reasonable suspicions against them, but for the

purpose of extracting information and confessions from them by force.

However, concerning the above complaints, the Commission is not

required to decide whether or not the facts alleged by the applicants

disclose any appearance of a violation of these provisions, as Article

26 (Art. 26) of the Convention provides that the Commission may only

deal with the matter within a period of six months from the date on

which the final decision was taken.

The Commission refers to its case-law according to which when an

act of a public authority is not open to any effective remedy, the six-

month period runs from the date on which the act took place (No.

8007/77, Dec. 10.7.78, D.R. 13 p. 85, at p. 153).

The Commission notes that the situation complained of occurred

on 28 and 29 April 1995 whereas the applications were submitted to the

Commission on 28 December 1995, that is more than six months after that

date.

It follows that this part of the application has been introduced

out of time and must be rejected under Article 27 para. 3 (Art. 27-3)

of the Convention.

2. The applicants further complain under Article 6 paras. 1 and 3

(c) (Art. 6-1, 6-3-c) of the Convention that they were not permitted

the assistance of a lawyer during their questioning by the police and

later by the public prosecutor.

They also allege discrimination under Article 14 in conjunction

with Article 6 paras 1 and 3 (c) (Art. 14+6-1+6-3-c) of the Convention

in that, according to the Code of Criminal Procedure, individuals have

the right to the assistance of a lawyer during questioning by the

police and the public prosecutor, whereas those suspected of offences

which fall within the jurisdiction of the State Security Courts are

prevented from enjoying this right.

However the Commission notes that the criminal proceedings

against the applicants are still pending before the State Security

Court.

According to its case-law, the Commission must take into

consideration the entire criminal proceedings brought against the

applicants in order to express an opinion as to whether they comply

with the requirements of Article 6 (Art. 6) of the Convention (cf. e.g.

Nos. 23878/94, 23879/94, 23880/94, 23881/94, 23882/94, 23883/94, Dec.

25.5.95, D.R. 81-B p. 94).

The introduction of the above complaints therefore appears

premature given the current stage of the proceedings before the first

instance courts. The applicants cannot complain at this stage of any

violation of the Convention during the early phase of the proceedings

concerned. They may re-submit the case to the Commission if, following

the outcome of the criminal proceedings against them, they still

consider themselves victims of violations of the Convention in the

above respects. The present complaints on this point must therefore be

rejected as manifestly ill-founded pursuant to Article 27 para. 2

(Art. 27-2) of the Convention.

3. The applicants complain under Article 3 (Art. 3) of the

Convention that they were ill-treated in police custody. They allege

that during their detention by the police they were physically abused.

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, unanimously,

1. DECIDES TO JOIN THE APPLICATIONS,

2. DECIDES TO ADJOURN the examination of the applicants'

complaints related to the alleged ill-treatment during

their police custody,

3. DECLARES THE REMAINDER OF THE APPLICATIONS INADMISSIBLE.

H.C. KRÜGER S. TRECHSEL

Secretary President

to the Commission of the Commission

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COLAK AND FiLiZER v. TURKEY

COLAK AND FiLiZER v. TURKEY

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