AS TO THE ADMISSIBILITY OF

Application No. 23145/93               Application No. 25091/94

introduced by Tahir ELÇi and others    by Arzu and imam SAHiN

against Turkey                         against Turkey

      The European Commission of Human Rights sitting in private on

2 December 1996, 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. MARXER

                 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 the application introduced on 3 December 1993

by Tahir Elçi (originally in the name of Ömer Elçi) and others against

Turkey, registered on 21 December 1993 under file No. 23145/93, and the

application introduced on 28 April 1994 by Arzu and Imam Sahin against

Turkey and registered on 8 September 1994 under file No. 25091/94;

      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 16

      June and 22 July 1994 (23145/93) and 18 November 1994 (25091/94)

      and the observations in reply submitted by the applicants on 10

      August and 26 September 1994 (23145/93) and 18 January

      1995 (25091/94);

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

      Having deliberated;

      Decides as follows:

THE FACTS

      The present applications have been brought on behalf of sixteen

lawyers, arrested and detained under emergency law in Diyarbakir on

various dates in November and December 1993 in South East Turkey. As

to Tahir Elçi, the application was originally introduced by his brother

Ömer Elçi in his own name. However, it was indicated in the application

that it was brought on behalf of Tahir Elçi and his representatives

have subsequently declared that the latter should be regarded as the

applicant.

      The applicants, whose names appear on the list annexed to this

decision, 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.

      - Case of Tahir Elçi

      On 23 November 1993 at 9:20 hours, two plain-clothes policemen

came to the applicant Tahir Elçi's office in Diyarbakir. After being

searched the applicant was taken by the policemen to the police

station.

      At 10.00 hours on the same day, six policemen, including the two

who had visited the office earlier in the morning, returned to the

office together with the applicant. The policemen seized the

applicant's files and a collection of newspapers (Özgür Gündem, Özgür

Halk and Rawsan, pro-Kurdish newspapers) belonging to the applicant.

The applicant signed a proces-verbal concerning his provisional

detention.

      At 11.00 hours on the same day, the policemen, accompanied by the

applicant, went to the applicant's home. They searched his home but

seized nothing. The policemen then took the applicant back to the

police station.

      On 25 November 1993, the applicant's brothers were informed by

the prosecuting authorities and by a captain of the gendarmerie that

the applicant had been detained on 24 November 1993 at the gendarmerie

of Cizre and had then been transferred to the police station in

Diyarbakir.

      Subsequently, the applicant was held in detention incommunicado.

He was released on bail on 10 December 1993.

      As to the events during the detention period, the following

information has been provided.

      During his detention, the applicant was tortured  because he had

filed applications with the Commission. During his interrogation,

correspondence and documentation relating to these applications were

in the possession of his interrogators and he was tortured because of

his work in bringing the complaints of his clients before the

Commission. His interrogators assaulted and abused him particularly

over a case which concerned the destruction of the village of Ormaniçi.

      He was stripped naked and slapped around and his testicles were

squeezed. He was threatened that he would be killed if he looked

further into cases of disappearances and evacuated villages. He also

suffered other ill-treatment directed at making him sign a statement

which he refused to do.

      Since his release on bail on 10 December 1993 and despite his

requests to the police through lawyers acting on his behalf, he has not

had his case-files, including his correspondence with the Commission,

returned to him. His legal practice has been disrupted. He has moved

from Cizre to Diyarbakir.

      -  Case of Arzu and imam Sahin

      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 conditions

similar to those of the other applicants with meagre rationing of bread

once a day and minimal access to toilet facilities.

      On 21 December 1993, imam and Arzu 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 has been

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

State and faxing them to Human Rights Organisations in European

countries".

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

      - Case of Nevzat Kaya

      On 18 November 1993, three persons from the Diyarbakir Security

Directorate, Anti-Terror Department, searched the office of the

applicant, drew up a report and signed it together with the applicant.

      In the Diyarbakir Security Directorate, the officers told the

applicant to hand over all possessions and recorded these one by one.

Later they took him to the hospital for an examination, after which

they handed him to JITEM (Gendarmerie Intelligence and Anti-Terror

Department).

      The JITEM members blindfolded the applicant after putting him

into a vehicle. The journey lasted about 25-30 minutes. The gendarmes

were asking the applicant what connections he had with the PKK and were

slapping him around. They were saying that they would kill him if he

did not speak. The applicant said that he had no organisational

connections with the PKK but that there were some PKK defendants among

his clients.

      Later the gendarmes took the applicant to an unknown place. After

an identity check, they took him to a room and told him to squat down

on the floor. On the evening of the following day, the gendarmes took

the applicant for interrogation. They claimed that he was the PKK's

lawyer and told him to explain his position. The applicant told them

that he had no relations with the PKK and that he acted with the

authority invested in him by his job as a lawyer. The gendarmes started

to beat him up, particularly on the head, stomach and feet. They then

brought in someone who claimed to be Abdülhakim Güven. This person said

that the applicant organised the lawyers. He then swore at the

applicant and, together with the gendarmes, beat him up. The gendarmes

then took the applicant to a place where they sprayed him with cold

water.  From the voices in that room, the applicant realised that his

colleagues Sinasi Tur, Hüsniye Ölmez, Sabahattin Acar, Meral Danis

Bestas and Mesut Bestas were there. They were all blindfolded and were

on the floor. They were given a loaf of bread a day to eat. The

applicant was permitted to go to the toilet twice a day. On the

following day he was taken back to the interrogation place again and

the ill-treatment was repeated. The gendarmes made threats involving

his sexual organs.

      On the seventh or eighth day of the custody, the applicant and

his friends decided to go on a hunger strike which lasted two and a

half days. On the night of 8 December 1993, the gendarmes called the

detainees one by one and told them to sign a number of documents; they

then started the ill-treatment sessions again. The applicant did not

sign in the first session. In the second session, when Fuat Hayri Demir

said that everyone else had signed the statements, he was forced to

sign some documents drawn up by the gendarmes without reading them. On

10 December 1993, the detainees were brought before the Court. The

forensic doctor, frightened by the gendarmes, did not mention torture

in his report.

      - Case of Sinasi Tur

      On 15 November 1993, the applicant was taken into custody. He was

interrogated during 26 days at the Diyarbakir Provincial Gendarmerie

Regiment Headquarters.

      A former PKK member who had confessed to his activities was

brought before him in custody and made accusations against the lawyers

who were then constrained to admit to these. The allegations focused

on the exchange of notes between different prisons concerning the PKK

and organic relations with this organisation. The applicant was forced

to sign prepared statements.

      On 10 December 1993, the applicant was released by the judge who

did not take into account the statements made in the gendarmes'

station. Only three of the lawyers were remanded in custody.

      The prosecution appealed and requested the remand of the six

lawyers who had supposedly been caught with incriminating notes on

them. The Court acquiesced with this request and decided to remand the

lawyers after their release. Later, the appeal against the remand of

two of the lawyers was accepted. The trial is ongoing at the State

Security Court No. 3.

      - Case of Sabahattin Acar

      On 15 January 1993, at about 19:15 hours, the applicant answered

the door bell and was told to open the door to the police. In order to

check that the persons calling on him were really from the police, he

called the State Security Court Chief Prosecutor. Three hours later,

a commissioner he knew came from the Diyarbakir Security Directorate

and the applicant opened the door. About 15 policemen, gendarmes and

Special Team members entered his flat and conducted a search.

      The applicant was taken from his house by gendarmes together with

some of his books, cassettes and articles. He was blindfolded on the

way, and taken to the Gendarmes Regiment Headquarters Interrogation

Centre.

      He was locked in a dark cell at the centre. He was only given a

blanket to use as a bed in the damp cell where there was no heating

device and the outside temperature was below zero. He was taken to the

toilet twice a day, once in the morning at 06:00 hours and once in the

evening at 18.00 hours.

      On the third day, the applicant was taken to another place for

interrogation. He was constrained to admit to charges laid against him.

The interrogators asked him in particular whether he had any relations

with the PKK, whether he had attended hearings before the State

Security Court concerning PKK militants and whether he had prepared

reports on human rights. Then Abdülhakim Güven, the former PKK member

who had benefited from the Remorse Law, was brought before him. The

applicant was told to admit to his accusations and, when he refused,

was taken outside, stripped naked, threatened to be taken into the

hills and killed. The applicant finally signed the report, blindfolded.

On the twenty-sixth day, he was brought before the State Security Court

Prosecutor. He was able to learn the contents of what he had signed

only then. He was being accused of a great many acts of which there had

been no mention during his interrogation. A remand order was issued

against him and he was sent to the Diyarbakir No. 1 E-Type Prison.

      - Case of Niyazi Cem

      He was taken into custody by five Anti-Terror Department

policemen in the corridors of the istanbul State Security Court on

23 November 1993 and taken to the Gayrettepe 1 Division building of the

police. His bag was searched thoroughly and, in the evening, he was

thrown into a cell where he was held for four days. On 26 November

1993, he was taken to the Bursa Osmangazi Detention Centre. On Saturday

evening (27 November) he was brought back to istanbul. On 28 November

1993 the applicant and a suspect from Bursa were taken to Diyarbakir

by plane and to JITEM.

      He was blindfolded and for the first two days (i.e. 28 to 30

November) he was not interrogated. He was given a loaf of bread a day

and taken to the toilet twice. Until 30 November he did not know what

he was accused of. He was first interrogated on 1 December 1993 at

around 23.30 hours. They put three more bands over his eyes. They

accused him of having sent someone to join the PKK, of acting as a

courier between prisons, of organising relations with istanbul and

Europe, and of having contacts with the PKK's political branch as well

as with the Özgür Gündem and Özgür Halk newspapers.

      The applicant replied that he had no relations with the PKK. They

swore at him, pulled his hair and hit him. Then Abdülhakim Güven was

brought in and he accused the applicant of acting as a liaison person

between prisons. The applicant claimed that Güven accused him so that

he could benefit from the Remorse Law and gave explanations concerning

the accusations made against him.

      Until 7 December 1993, he was beaten, threatened, abused,

insulted, forced to listen to loud music and to sleep on a cold

concrete floor, all while being kept blindfolded.

      In the evening of 8 December 1993, the interrogators tried to

make him sign a statement they had prepared without allowing him to

read it. In the end, the applicant and the lawyers Hüsniye Ölmez, Meral

Danis Bestas and Tahir Elçi did not sign and were beaten up again. On

9 December 1993 he was again told to sign and when he refused, he and

Tahir Elçi were taken to the toilet, stripped naked and tortured with

pressurised water.  In the end, when he could not bear it any more, the

applicant started beating his head against the wall. The police then

took him out, made him put his clothes on and put him with his friends.

The next day all the applicants were brought before the court.

      - Case of Selim Kurbanoglu

      The applicant was taken into custody by gendarmes from his home

and taken blindfolded to the Interrogation Centre and put in a very

crowded cell where he was made to lie on the floor with only a blanket.

Many people came in and being blindfolded they tried to recognise each

other by their voices. That is how he found out that other lawyers he

knew were there with him. During the 21 days he was in custody, he was

beaten and kept blindfolded.

      On 20 December 1993, he was brought before the Diyarbakir State

Security Court and he and 10 other lawyers were released. Four days

later arrest warrants were issued against them upon the prosecutor's

appeal against the Court's decision.

      - Case of Meral Danis Bestas

      The applicant and her husband were taken into custody in the

evening of 16 November 1993 while leaving the Diyarbakir State Security

Court. They were transported by car to what seemed like a large hall.

The applicant was put in a cell alone and was given a blanket. The cell

was extremely cold. Half an hour later she was taken to the

interrogation room and accused of being a courier. She replied that she

visited prisons because of her job.  She was slapped twice and taken

back to her cell. In the evening of the following day, she was

interrogated again. This time she was told that she was the Human

Rights Association's secretary and worked for the PKK. For a whole week

she was questioned about her activities in the Association and

particularly about applications against Turkey made to the European

institutions.  Two days before being brought before the Court, she was

taken from her cell in the middle of the night. She was given a pen and

told to sign some papers. She refused to sign without reading them,

whereupon  she was taken somewhere else and threatened with torture.

She was stripped naked and subjected to pressurised water three times

for at least an hour each time until the day she was taken to the

Court.

      During the 24 days she was in custody, she was allowed to go to

the toilet twice a day and was given a piece of bread once a day.

      - Case of Mesut Bestas

      On 16 November 1993, the applicant was arrested while leaving the

State Security Court with his wife at about 18.00 hours. They were

blindfolded and put in a vehicle. They were taken to the Interrogation

Centre and he was put in a cell and given a blanket. He was allowed a

slice of bread a day.

      He was accused of being a courier for the PKK. The applicant

insisted that he was a lawyer who took on all kinds of cases. He was

frequently taken to the interrogation room, beaten up and subjected to

inhuman treatment. During the whole custody period  (25 days), he was

forced to listen to very loud music and nationalistic songs.

      The applicant was brought before the State Security Court

Prosecutor on 10 December 1993. The questions put to him were based on

the declarations of a former member of the PKK who had benefited from

the Remorse Law. He was first released and then arrested on the appeal

of the Prosecutor and held in detention on remand.

      - Case of Vedat Erten

      On 23 November 1993, the applicant was taken into custody by the

gendarmes and was questioned about his reasons for taking political

cases. The applicant said that as a lawyer it was his duty and also

that not all his cases were political. He was made to strip naked,

abused, insulted, kicked and beaten up. He was forced to sign some

papers which, being blindfolded, he could not read. He signed these

papers on 8 December 1993. He was able to learn on the day he was

brought before the Court that accusations had been made against him by

Abdülhakim Güven. The applicant was released on 10 December 1993 by the

judge but a warrant was issued for his arrest on 14 December 1993 on

the appeal of the Prosecutor.

      - Case of Baki Demirhan

      The applicant was taken into custody on 9 November 1993 after a

hearing at the Diyarbakir State Security Court buildings. During the

police custody, he was blindfolded. He was also threatened with

execution.

      - Case of Arif Altinkalem

      On 16 November 1993, the applicant was taken into custody by the

gendarmes after leaving the State Security Court at 16.30 hours

together with Meral Bestas, Mesut Bestas and Baki Demirhan. During the

police custody, he was blindfolded. He was also threatened with

execution.

      - Case of Gazanfer Abbasioglu

      On 30 November 1993, the applicant was arrested in the office of

the lawyer S.T. After a search in his office, the policemen took him

to the Security Directorate. During the  police custody, he was held

in the same conditions as the other  applicants  and forced to sign a

false statement.

      - Case of Fuat Hayri Demir

      On 3 December 1993, the applicant was arrested by police from the

Diyarbakir Security Directorate as he was leaving the State Security

Court building at about 12.30 hours. During the  police custody, he was

held in the same conditions as the other applicants and forced to sign

a false statement.

      - Case of Hüsniye Ölmez

      On 16 November 1993, the applicant was arrested by police from

the Diyarbakir Security Directorate. She was made to strip naked and

beaten up. She was forced to sign some papers which, being blindfolded,

she could not read.

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 the applicants.

      The periods of the police custody and the periods of detention

upon the decision of the judge in relation with the applicants in

application No 23145/93 are as follows:

Periods of police

custody

Periods of detention

pon decision of a judge

Sinasi Tur

15.11.-10.12.1993

Sabahattin Acar

15.11.-10.12.1993

10.12.1993-17.02.1994

Meral D

nis Bestas

16.11.-10.12.1993

Mesut Bestas

16.11.-10.12.1993

15.12.1993-17.02.1994

Baki Demirhan

6.11.-10.12.1993

Arif Altinkalem

16.11k94

Niyazi

Cem

23.11.-10.12.1993

Gazanfer

bbasioglu

30.11.-10.12.1993

Fuat Hayri Demir

03.12.-10.12.1993

B

     As a consequence of the pre

iminary investigation, the chiefCpublic prosecutor of the State Security Court of Diyarbakir filed aEcrimina

action with the indictment dated 22 December 1993 against 23Edefendants, including the lawyers listed as ap

licants in the present case and a few prison guardians.ants wereFcharged with the offence of being members of and acting for the terrorAorganisation PKK. S

me of them were suspected of having committedGserious crimes such as helping PKK terrorists to get weapons, smu

glingCin and out of prison proscribed items or instruments for committingDcrimes within prison such as

yanide or a knife for the PKK inmates,@receiving and implementing instructions from the PKK leaders

ip. them were released. The publicFprosecutor of the Diyarbakir State Security Court appealed against the

judge's decision. The State Security Court decided to rearrest six

applicants.

      On 17 February 1994 all applicants had their first hearing before

the State Security Court. They were all released on the same day.

      The criminal action before the State Security Court against the

23 defendants is still going on. The Court is 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 applicants, i.e. Tahir Elçi, Arzu Sahin, imam Sahin, Kaya, Tur,

Acar, Cem, Kurbanoglu, Meral Danis Bestas, Mesut Bestas, Demirhan,

Abbasioglu, Demir and Ölmez, complained of torture, ill-treatment or

undue pressure having been exercised on them during their police

custody. Some of the applicants, including Erten and Altinkalem, had

already made similar complaints before the examining judge on 10

December 1993. Altinkalem also referred to such treatment at the

hearing before the State Security Court on 28 April 1994.

      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.

C.    Relevant domestic law and practice

      The Turkish Criminal Code makes it a criminal offence to subject

someone to torture or ill-treatment (Article 243 in respect of torture

and Article 245 in respect of ill-treatment, inflicted by civil

servants).

      Complaints may be lodged, pursuant to Articles 151 and 153 of the

Code of Criminal Procedure, with the public prosecutor or the local

administrative authorities. The public prosecutor and the police have

a duty to investigate criminal offences reported to them, the former

deciding whether a prosecution should be initiated, pursuant to Article

148 of the Code of Criminal Procedure. A complainant may appeal against

the decision of the public prosecutor not to institute criminal

proceedings.

      If the alleged author of a criminal offence is a State official

or civil servant, permission to prosecute must be obtained from local

administrative councils (the Executive Committee of the Provincial

Assembly). The local council decisions may be appealed to the Council

of State; a refusal to prosecute is subject to an automatic appeal of

this kind.

      Pursuant to Article 1 of Law 466, a person who has been  held in

police custody unlawfully or without justification may apply to the

local assize court for compensation within three months of the decision

not to prosecute.

      Furthermore, any illegal act by civil servants, be it a criminal

offence or a tort, which causes material or moral damage may be the

subject of a claim for compensation before the ordinary civil courts.

      Proceedings against the Administration may be brought before the

administrative courts, whose proceedings are in writing.

      Pursuant to Article 128 to the Code of Criminal Procedure, a

person arrested and detained shall be brought before a justice of peace

within twenty-four hours, or, in the case of collective offences,

within four days. In the proceedings before the State Security Courts,

these periods are extended, pursuant to Article 30 of Law 3842 of 1

December 1992, to forty-eight hours in the case of individual offences,

and to fifteen days in the case of collective offences. Pursuant to the

same Article, in cases involving a state of emergency, the custody

periods in the proceedings before the State Security Courts are

doubled: four days in the case of individual offences, thirty days in

the case of collective offences.

COMPLAINTS

      The applicants complain of violations of Articles 3, 5 and 8 of

the Convention and Article 1 of Protocol No 1. The applicant Tahir Elçi

has also made complaints which in substance relate to Article 3 in

connection with Article 25 of the Convention.

      As regards Article 3 of the Convention, the applicants Tahir

Elçi, Tur, Acar, Cem, Kurbanoglu, Meral Danis Bestas, Mesut Bestas,

Erten and Ölmez  complain, in their observations which were received

on 28 april 1994, of having been subjected to inhuman treatment or

torture during their detention. The other applicants complain of ill-

treatment in police custody in their final submissions received on 4

November 1996.

      As regards Article 5 of the Convention, the applicants state that

their detention was arbitrary and lacked any justification. They

believe that the reason was the fact that they had defended before the

State Security Court persons who were accused of membership of the PKK,

and submit that such a ground is incompatible with Article 5, since it

is a fundamental principle that lawyers should be free to defend anyone

accused of an offence.

      In application N° 25091/94 the applicants also complain in

substance of the length of their detention in police custody. In

application N° 23145/93, the applicants, in their submissions of

26 September 1994, also complain of the length of their detention in

police custody.

      As regards Article 8 of the Convention, the five applicants Tahir

Elçi, Tur, Acar, Kurbanoglu and Cem complain of the search of their

houses and offices and the confiscation of their private belongings,

work files and private correspondence by the police and the public

prosecutor.

      As regards Article 1 of Protocol No 1, these applicants complain

of interference with their property.

      As regards Article 25 of the Convention, the applicant Tahir Elçi

alleges that the torture to which he was subjected was inflicted

because he had assisted clients in bringing cases before the

Commission. The applicants further point out that four of them - Acar,

Arzu Sahin, imam Sahin and Demirhan - have been charged with criminal

conduct on the basis of making applications to the Commission and that

the detention and treatment of all the applicants can have a "chilling

effect" on their willingness to bring cases before the Commission.

PROCEEDINGS BEFORE THE COMMISSION

      Application No. 23145/93 was introduced on 3 December 1993 and

registered on 21 December 1993. Further observations were submitted on

28 April 1994. Application No. 25091/94 was introduced on 28 April 1994

and registered on 8 September 1994.

      After a preliminary examination of the cases by the Rapporteur,

the Commission considered the admissibility of the applications on 14

April 1994 (23145/93) and on 9 September 1994 (25091/94). It decided,

pursuant to Rule 48 para. 2 (b) of the Rules of Procedure, to give

notice of the applications to the respondent Government and to invite

the parties to submit written observations on admissibility and merits.

      The applications have been joined on 9 September 1994.

      The Government's observations were submitted on 16 June and 22

July 1994 (23145/93) and 18 November 1994 (25091/94) to which the

applicants replied on 10 August and 26 September 1994 (23145/93) and

18 January 1995 (25091/94).

      On  13 May 1996, the Commission decided to invite the parties to

make oral submissions on the admissibility of the applications at a

hearing.  The hearing was fixed for 2 December 1994.  Prior to the

hearing the applicants submitted additional material on 4 November

1996.      At the hearing on 2 December 1996, the Government were

represented by MM. A. Gündüz, S. Alpaslan, acting agents, MM. A. Akay,

M. Özmen, advisers, MM. F. Polat and A. Kaya, experts. The applicants

were represented by Mr. Timothy Otty, Ms. F. Hampson, Mr M. Müller and

Ms. A. Reidy, as counsel.

THE LAW

      The applicants complain of their arrest and the circumstances of

their police custody. They allege violations of Articles 3, 5, 8  and

25 (Art. 3, 5, 8, 25) of the Convention and Article 1 of Protocol No

1 (P1-1).

      As regards the applicants

      The Government submit, in general, that the applications were

presented to the Commission by an organisation which has distorted the

facts. Most of the applications originating from the South East of

Turkey and coming before the Commission through that organisation, have

taken the form of hybrid applications which are not contemplated by the

Convention. The Government state that this amounts to a de facto change

of the Convention system.

      The Commission considers these contentions of the Government as

an objection to admissibility raised on the basis of the abuse of the

right of petition. However, the Commission notes that the applications

have been lodged in due form on behalf of the applicants and that there

is no evidence that the applicants would wish to discontinue their

applications. Nor does the Commission find any other element which

would lead to the conclusion that there has been in the present case

an abuse of the right of petition.

      The Government also contend, in particular, that Mr. Ömer Elçi,

the brother of the lawyer Tahir Elçi, cannot be presented as an

applicant in this case, since he was neither the victim nor the injured

party, and that there was nothing which had prevented Tahir Elçi from

introducing himself an application, had he wished to do so.

      The applicants submit that the detained lawyers, including Tahir

Elçi, should be regarded as the applicants in this case.

      The Commission recalls that when application N° 23145/93 was

introduced on 3 December 1993, there was no direct contact with Tahir

Elçi who was in police custody. Although Ömer Elçi brought the

application in his own name, it is clear that he acted on behalf of his

brother Tahir Elçi, which is also expressly indicated in the

application form. Consequently, the Commission, in its examination of

the application, will consider Tahir Elçi and not Ömer Elçi as one of

the applicants in this case.

      As to Article 3 (Art. 3)

      The applicants complain of having been submitted to torture, ill-

treatment or undue pressure during their periods of police custody.

      Exhaustion of domestic remedies

      The Government first submit that the applicants, before lodging

an application with the Commission, failed to comply with the

requirement under Article 26 (Art. 26) of the Convention in that they

did not exhaust domestic remedies with regard to their complaints under

Article 3 (Art. 3) of the Convention. They contend that the acts

alleged by the applicants would constitute punishable criminal offences

under Turkish criminal law. The applicants, all legal practitioners,

could therefore be expected to lodge insistent criminal complaints with

the public prosecutor or more appropriately with the office of the

Governor of the State of Emergency Region. The Government recall that

a decision of the Provincial Administrative Council whether or not to

bring the case before the criminal courts is subject to supervision by

the Council of State. According to the Government, the applicants could

also have requested an examination by the prison doctor, who is

connected to the Ministry of Justice and independent from the security

forces.

      The applicants submit that any purported remedy would have been

illusory, inadequate and ineffective. They do not deny that the

procedures identified by the Government are formally part of the

Turkish legal structure, but they contend that the Government have not

shown how such procedures could conceivably be effective in the

specific circumstances of the present case.

      The applicants consider that none of the remedies suggested by

the Government could be regarded as effective because the scale of

torture committed with impunity by agents of the State in detention

centres is such that this must be considered high-level Government

policy - an administrative practice - in regard to which all remedies

are theoretical and irrelevant. This has been confirmed by several

intergovernmental organs (such as the European Committee for the

Prevention of Torture and Inhuman or Degrading Treatment or Punishment)

and non-governmental bodies.

      The applicants add that they have taken all steps which could

reasonably be required of them. They point out that they complained of

torture or ill-treatment during their custody before the examining

judge on 10 December 1993 and when appearing before the State Security

Court on 17 February 1994 or 28 April 1994.

      The Commission does not deem it necessary to determine whether

there exists an administrative practice on the part of the Turkish

authorities of tolerating abuses of human rights of the kind alleged

by the applicants, because it considers that in any case the applicants

have done all that could be expected of them in the circumstances. The

Commission has formed this view for the following reasons:

      The Commission notes that the applicants raised in the

proceedings before the examining judge or the State Security Court

their complaints concerning their alleged ill-treatment during their

time in police custody. These allegations of torture or ill-treatment

were duly entered into official records, and it should have been a

matter of considerable concern to the judicial authorities that a large

number of lawyers - members of the Bar - complained of having been

subjected, almost at the same time, to such treatment during their

detention. Nevertheless, and despite the duty of the authorities under

Turkish law to act ex officio when confronted with suspicions of

torture, the examining judge, the State Security Court and the public

prosecutor who was present at the hearings before that court all chose

to ignore the complaints and not to examine the allegations or transmit

them to the local public prosecutors' offices or to local

administrative bodies.

      The question arises as to whether, in these circumstances, the

applicants were required to avail themselves of further remedies, as

contended by the Government, by addressing a complaint to the competent

public prosecutor or the local administrative bodies. The Commission

considers that the failure of the authorities to take any action on the

basis of the complaints made by the applicants before the judicial

organs makes it highly unlikely that they would have been successful

if they had repeated the same complaints in an application to the

public prosecutor or an administrative organ. The Commission, who finds

that the applicants used an appropriate remedy by complaining of

torture or ill-treatment during the judicial proceedings, considers

that, in view of the failure of the judicial authorities to take any

action, it can be assumed that any other legal remedies would also have

been without any prospect of success. In the circumstances, the

applicants were therefore not obliged to pursue any of these remedies

(cf. Nos. 16311/90, 16312/90 and 16313/90, N.H., G.H. and R.A. v.

Turkey, Dec. 11.10.91, unpublished; No. 21987/93 Aksoy v. Turkey, Dec.

19.10.94, D.R. 79 p. 60; No. 17126/90, S.Ö. v. Turkey, Dec. 30.08.94,

unpublished and mutatis mutandis No. 19092/91, Yagiz v. Turkey, Dec.

11.10.93, D.R. 75 p. 207).

      The six months' rule

      The Commission recalls that under Article 26 (Art. 26) of the

Convention it may only deal with a matter within a period of six months

from the date on which the final decision was taken in domestic law.

      The Commission considers that in a case where an applicant avails

himself of a domestic remedy and it becomes clear, at a later stage,

that this remedy was not effective, the six months period should in

principle be calculated from the time when the applicant became aware

of the ineffectiveness of the remedy.

      The Commission finds it established that most of the applicants,

i.e. Tahir Elçi, Arzu Sahin, imam Sahin, Kaya, Tur, Acar, Cem,

Kurbanoglu, Meral Danis Bestas, Mesut Bestas, Demirhan, Abbasioglu,

Demir and Ölmez, complained of torture, ill-treatment or undue pressure

before the State Security Court on 17 February 1994. Other applicants,

including Erten and Altinkalem, made similar complaints before the

examining judge on 10 December 1993. Altinkalem also referred to ill-

treatment before the State Security Court on 28 April 1994. After the

hearings on 17 February and 28 April 1994, the Court took certain

procedural decisions in which no mention was made of the allegations

of torture, ill-treatment or undue pressure.

      The Commission considers that the failure of the judicial

authorities to act must have become gradually apparent in the period

up to 28 April 1994 and that the six months period provided for in

Article 26 (Art. 26) of the Convention should therefore be considered

to have started running not later than 28 April 1994.

      The Commission notes that the applicants Tahir Elçi, Tur, Acar,

Cem, Kurbanoglu, Meral Danis Bestas, Mesut Bestas, Erten and Ölmez

lodged their complaints concerning Article 3 (Art. 3) of the Convention

with the Commission by submitting supplementary observations on 28

April 1994, that is well within the six months time-limit. These

applicants have therefore complied with the conditions of Article 26

(Art. 26) of the Convention.

      However, the other applicants, Arzu Sahin, imam Sahin, Kaya,

Demirhan, Altinkalem, Abbasioglu and Demir, cannot be considered to

have introduced their complaints in this regard before the Commission

until after the expiry of the six months time-limit. These complaints

were in fact only referred to in the final submissions which were

received on 4 November 1996.

      The Commission finds, therefore, that the applicants Arzu Sahin,

imam Sahin, Kaya, Demirhan, Altinkalem, Abbasioglu and Demir 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.

      The substance of the complaints

      The Government maintain that there is no evidence to substantiate

the applicants' allegations against the gendarmes under Article 3

(Art. 3) of the Convention. They contend that the statements presented

on behalf of the applicants are inadmissible as they were not taken by

a judicial officer. The Government also submit that the quotations

taken from the reports of international and non-governmental bodies are

either misleading or of no significance in this case. They add that two

medical reports concerning the applicants Ölmez and Meral Danis Bestas

effectively rebut any suggestion of ill-treatment of the applicants

during their custody.

      The applicants maintain that the alleged ill-treatment is not of

a kind which would necessarily leave marks to be observed by an

examining doctor. They contend that there is medical evidence to

support allegations of ill-treatment concerning the applicants Ölmez

and Meral Danis Bestas. The applicants submit that given the concerns

raised about the independence of examining doctors, their certificates

should not be treated as decisive.

      The Commission considers, in the light of the parties'

submissions, that this part of the case - insofar as it relates to

applicants whose complaints are not inadmissible under Article 26

(Art. 26) of the Convention - raises complex issues of law and fact

under the Convention, the determination of which should depend on an

examination of its merits. 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.

      As to Article 5 (Art. 5)

      The applicants allege that their detention was arbitrary and

lacked justification. They also complain of the length of their

detention in police custody.

      Exhaustion of domestic remedies

      The Government submit that the applicants, before lodging an

application with the Commission, failed to comply with the requirement

under Article 26 (Art. 26) of the Convention in that they did not

exhaust domestic remedies with regard to their complaints under Article

5 (Art. 5) of the Convention. They 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 to persons unlawfully arrested or

detained. They add that, since there is not yet any final decision in

the proceedings against the applicants, it is too early for the

applicants to submit such a request.

      The applicants recall that their complaint relates to the length

of their police custody and its unjustified nature. They submit that

a long period of custody by order of the public prosecutor is

authorised under national law and accordingly there could be no claim

for compensation in this respect.

      The Commission points out that a claim for compensation as

indicated by the Government would not make it possible to end detention

in custody of an unjustified nature within the meaning of Article 5

para. 1 (Art. 5-1) or of excessive length within the meaning of Article

5 para. 3 (Art. 5-3) of the Convention (see mutatis mutandis No.

16026/90, Mansur v. Turkey, Dec. 10.07.1991, unpublished; No. 14116/88

and 14117/88, Sargin and Yagci v. Turkey, Dec. 11.05.1989, D.R. 61 p.

250).

      Accordingly, the Commission finds that the objection raised by

the Government cannot be accepted.

      The length of the period in police custody

      As regards the applicants' complaint that, contrary to the

requirements of Article 5 para. 3 (Art. 5-3) of the Convention, they

were held in police custody for periods of 7 to 24 days without being

brought before a judge, the Commission is not required to decide

whether or not the facts alleged by the applicants disclose any

appearance of a violation of this provision, 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 months period runs from the date on which the act took place (No.

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

      The Commission observes that in the present case the applicants'

police custody was effected pursuant to the Law on the Procedures of

State Security Courts and that they had no domestic remedy against this

procedure.

      The Commission notes that the situation complained of ended on

10 December 1993 in respect of most of the applicants and on 21

December 1993 in respect of Arzu Sahin and imam Sahin, these being the

dates on which the applicants were either released or detained by order

of an examining judge, whereas the complaint was submitted to the

Commission in the applicants' supplementary submissions of 26 September

1994, 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.

      The lawfulness of the detention

      As regards the remaining complaint of the applicants under

Article 5 (Art. 5) of the Convention concerning the unjustified nature

of their arrest and detention, the Government submit that since 1984

ethnically based terrorism has deeply affected the life of the nation

as a whole. Various terrorist groups have regrouped themselves under

the umbrella of the PKK, which is a secret armed organisation, with

considerable membership recruited from various circles including

foreign countries. The PKK is engaged in unconstitutional activities,

using violence to attain its purpose of establishing an independent

Kurdish state. During 1993 and 1994 the PKK was responsible for the

death of 1777 civilians and 1233 members of the security forces and the

wounding of 2113 civilians and 3196 members of security forces. In this

context 16200 events have occurred since 1984, 2548 of which were armed

confrontations. The Government contend that the economic and social

life of the nation has been paralysed. The Government has had

considerable difficulty in ensuring the functioning of public

institutions. This is why the Government have filed a notice of

derogation under Article 15 (Art. 15) of the Convention, which relates

to Article 5 (Art. 5) and is relevant to the present case.

      The Government submit that the applicants took up cases of the

PKK militants and that an important witness stated that the applicants

had contact with PKK inmates. The statement of this witness was

consistent with other information according to which some applicants

had acted as couriers between PKK members. Incriminating documents were

also found in their residences or offices. The Government conclude that

the authorities had reasonable suspicion for taking the applicants into

custody.

      The Government also observe that the applicants learned about the

reasons for their arrest at the time of the interrogation at the

latest.

      The applicants contend that they were not arrested for the

purpose of being brought before a judge on suspicion of having

committed criminal offences but rather because they had defended before

the State Security Court persons who were accused of membership of the

PKK. They submit that their allegations under Article 5 (Art. 5) are

not defeated by the derogation notice of the Government as their

detention was not "strictly necessary" and also because of the lack of

safeguards against possible abuse in respect of such detention.

      The Commission considers, in the light of the parties'

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

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

on an examination of its merits. 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.

      As to Article 8 (Art. 8) of the Convention and Article 1 of

      Protocol No. 1 (P1-1)

      The applicants Tahir Elçi, Tur, Acar, Kurbanoglu and Cem complain

of the search of their houses and offices and the confiscation of their

private belongings, work files and correspondence.

      Exhaustion of domestic remedies

      The Government submit that the applicants have failed to exhaust

domestic remedies as they did not use several remedies at their

disposal. As to the searching of their houses and offices, the

applicants could have raised before the State Security Court, at the

stage of appeal, any procedural or investigatory irregularities of

unlawful conduct. They could also have brought actions for compensation

on the basis of personal liability against those who carried out such

irregular or unlawful acts.

      As to the seizure of documents, the Government contend that the

professional documents and the court files for professional practising

have been returned upon the decision of the State Security Court. The

other documents which have not been delivered yet are available by

interim decision of the Court to the applicants who can photocopy them.

      The applicants submit that there were no effective remedies at

their disposal in order to challenge the searching of their houses or

offices and the seizure of their documents.

      The Commission recalls that in order to comply with the

requirements of Article 26 (Art. 26) an applicant is obliged to make

"normal use" of remedies "likely to be effective and adequate" to

remedy the matters of which he complains. An appeal limited to

questions of lawfulness is not effective where complaint is made

concerning facts or the law itself (see, for example, No 10741/84, Dec.

13.12.84, D.R. 41 p. 226).

      In the present case, the complaints of the five applicants amount

to a challenge of the searching of their houses and offices and seizure

of their documents by the police without a judicial decision according

to the legislation applicable in the Emergency State Area. The

Commission accepts that the available remedies based on the

unlawfulness of such measures are not effective and adequate remedies

for such complaints and that the applicants were not required to

exhaust these remedies in order to comply with Article 26 (Art. 26).

      The substance of the complaints

      The Government submit that the search of the offices and houses

of suspects and the seizure of their documents have been carried out

by order of the public prosecutor according to Article 11 of the Law

on the State of Emergency. These acts have been conducted as a part of

the preliminary investigation made against the applicants, merely to

obtain material evidence about their connections with the separatist

terror organisation PKK. As a result of this investigation some

documents seized from some of the applicants have led the public

prosecutor to bring a criminal action before the State Security Court

of Diyarbakir for terrorist offences. These measures have been taken

in order to protect national security and public safety as well as the

rights and freedoms of others which are subject to terrorist assaults.

The Government conclude that searching the houses and the offices of

the applicants constitutes a legitimate interest within the meaning of

Article 8 para. 2 (Art. 8-2) of the Convention. They also contend that

the seizure of the documents of the five applicants was effected in the

public interest, in conformity with the Article 1 of Protocol No 1

(P1-1).

      The applicants contend that, while the files relating to domestic

cases have been returned, a number of additional files relating to

applications to the Commission have not been returned. They point out

that it is not necessary to be permanently deprived of correspondence

or property before there can be a violation under either Article.

      The Commission considers, in the light of the parties'

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

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

on an examination of its merits. 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.

      As to Article 25 (Art. 25)

      The applicant Tahir Elçi alleges a violation of Article 25

(Art. 25) of the Convention in that the treatment to which he was

subjected was connected with the fact that he had assisted clients in

bringing cases before the Commission.  The applicants further refer to

the fact that four of them - Acar, Arzu Sahin, imam Sahin and Demirhan

- have been charged with criminal conduct simply on the basis of making

applications to the Commission and that the detention of all the

applicants and the treatment to which they were subjected can have a

"chilling effect" on their preparedness to assist in bringing cases

before the Commission.

      The Government point out that all the applicants have succeeded

in bringing their applications before the Commission. According to the

Government, in so far as the complaints relate to alleged interferences

in respect of applications lodged by the lawyers on behalf of third

parties, these cannot have any relevance as the lawyers themselves

cannot be considered to be victims of such interference.

      The Government also submit that in the indictment against the

applicants, there is no reference to the Commission at all. There are

vague references to human rights associations in European countries.

In the indictment the emphasis is put on the fact that the applicants

blame the State for criminal acts probably perpetrated by PKK members.

The Government add that the public prosecutors are aware that the

Convention with its mechanism and organs forms part of the Turkish

legal system and that, by virtue of Article 90 of the Constitution, it

is a constitutional right to apply to the Commission.

      The applicants submit that the seizure of files relating to

applications to the Commission and held by Tahir Elçi represents a

clear interference with the right of petition. Moreover, the applicants

are each in a class of people who may well have recourse to the

Commission both on their own behalf and on behalf of third parties.

      The Commission considers, in the light of the parties'

submissions, that the allegations regarding interference with the right

of individual petition cannot be dismissed at the present stage of the

proceedings. Consequently, there is reason to pursue the examination

of this issue.

      For these reasons, the Commission, by a majority,

      DECLARES THE APPLICATIONS INADMISSIBLE in respect of the

      complaints raised by the applicants Arzu Sahin, imam Sahin, Kaya,

      Demirhan, Altinkalem, Abbasioglu and Demir in regard to torture,

      ill-treatment or undue pressure and the complaints concerning the

      length of police custody raised by all applicants,

      DECLARES ADMISSIBLE the remainder of the applications, without

      prejudging the merits of the case,

      DECIDES to pursue the issue of an alleged interference with the

      right of individual petition under Article 25 (Art. 25) of the

Convention.

        H.C. KRÜGER                         S. TRECHSEL

         Secretary                           President

     to the Commission                    of the Commission