AS TO THE ADMISSIBILITY OF

                      Applications Nos. 16311/90, 16312/90 and 16313/90

                      by N.H., G.H., R.A.

                      against Turkey

        The European Commission of Human Rights sitting in private

on 11 October 1991, the following members being present:

              MM. C.A. NØRGAARD, President

                  J.A. FROWEIN

                  S. TRECHSEL

                  F. ERMACORA

                  G. SPERDUTI

                  A.S. GÖZÜBÜYÜK

                  A. WEITZEL

                  J.-C. SOYER

                  H.G. SCHERMERS

                  H. DANELIUS

             Mrs.  G. H. THUNE

             Sir  Basil HALL

              Mr.  C.L. ROZAKIS

             Mrs.  J. LIDDY

             MM.  L. LOUCAIDES

                  A.V. ALMEIDA RIBEIRO

                  M.P. PELLONPÄÄ

             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 9 November 1989

by N.H., G.H. and R.A. against Turkey and registered on 16 March 1990

under file No. 16311/90, file No. 16312/90 and file No. 16313/90

respectively;

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

Rules of Procedure of the Commission;

        Having regard to the written observations submitted by the

respondent Government on 26 October 1990 and the observations in reply

submitted by the applicants on 18 January 1991;

        Having regard to the oral observations of the parties

presented at the hearing of 11 October 1991;

        Having deliberated;

        Decides as follows:

THE FACTS

        The facts, as submitted by the parties, may be summarised as

follows:

        The first applicant, N.H., a Turkish national born in

1953, is resident in Izmir.  She is a doctor.

        The second applicant, G.H., a Turkish national, born in

1954, is the first applicant's husband and resident in Izmir.  He is a

journalist.

        The third applicant, R. A., a Turkish national born in

1947, lives in Izmir.  He is an accountant.

        In the proceedings before the Commission the applicants are

represented by Mrs.  Sibel Bilge Uslu and Mr.  H. Ibrahim Uslu, lawyers

practising in Izmir.

        On 7 September 1987 the applicants were taken into custody at

the Izmir Security Department by the Izmir police.  They were accused

of being members of the Communist Party of Turkey.  The first applicant

was also accused of being a member of the Communist Party's regional

executive.  The applicants' membership of the Communist Party had

allegedly been revealed during the interrogation of other detainees

who were accused of the same offence.

        The applicants were questioned by the police.  They were held

incommunicado without access to their lawyers or families until 20

September 1987.  On that day they were brought before the Public

Prosecutor and taken back during the evening to the Security

Department.

        On 21 September 1987 they were taken before a judge for the

first time, charged and remanded in custody.

        In an indictment dated 28 September 1987, the Public

Prosecutor at the Izmir Security Court charged the applicants with

being members of an association aiming at the domination of a

particular social class.  He requested a sentence of between five and

eight years' imprisonment under Article 141 para. 5 of the Turkish

Criminal Code.  According to the indictment:

-       the first applicant had denied the charges against her.

However, having been caught redhanded while carrying a suitcase

containing the party's working papers, two co-accused, A.U. and S.K.,

had declared that she was a member of the Communist Party.

Moreover, an organisational chart of the party, prepared by the

applicant, had been found in the house of another accused person who

had stated that he had received from the applicant a suitcase

containing the party's working papers;

-       the second applicant had admitted the charges against him to

the police while he had denied them before the Public Prosecutor.

Moreover, two co-accused had stated that the second applicant was

collaborating with the Communist Party.  He was a member of the Turkish

Workers' Party, working for the "Union of the Left" and had

transmitted to his wife, the first applicant, two reports entitled

"The relationship between the working class and intellectuals" and

"The Proceedings of the Party Conference";

-       the third applicant had admitted the charges against him to

the police and the Public Prosecutor.  Two other accused who had been

arrested, A.U. and H.Ö, had also admitted that he was a member

of the Communist Party.  According to a handwriting expert one of the

handwritten reports found in the suitcase carried by A.U. and S.K.

belonged to this applicant.

        In the proceedings before the Izmir Security Court, one of the

co-accused, A.U., stated that he had denounced the first applicant and

the third applicant under torture during the fourteen days of police

custody.  He had maintained his statement before the investigating

judge who had threatened to send him back to the police headquarters.

        Another co-accused, S.K., also stated that she had been

tortured while in police custody and that was why she had confessed to

the offences allegedly committed as the accomplice of the first

applicant.  During the hearing before the Court S.K. retracted the

statements she had made to the police concerning the two applicants.

Another co-accused, H.Ö., also retracted his statements concerning the

third applicant.  He declared that he had made them under police

pressure.

        In the proceedings before the State Security Court the

applicants and the other accused stated that they had been subjected

to torture and ill-treatment during their police custody.  They alleged

that this was why they had confessed and denounced the others.

        The applicants' lawyers complained that the preliminary

investigation had been conducted in the absence of the defence and

that their clients had made their statements to the police under

torture.  They invoked the provisions of the European Convention for

the Prevention of Torture and Inhuman or Degrading Treatment or

Punishment and requested that the Court remove from the file the

applicants' statements to the police.

        The applicants' lawyers also stated that the Public Prosecutor

did not carry out the investigation himself.  The political section of

the Izmir police did not inform the Public Prosecutor about the

applicants' arrest until seven days later.  While the drafting of the

applicants' statements was terminated on the eighth day of the police

custody, the police waited five more days before bringing them before

the Public Prosecutor in order to let the traces of torture disappear

in the meantime.  The delay of seven days before informing the Public

Prosecutor and the delay of five days before bringing the applicants

before the Public Prosecutor after having obtained their statements

made their detention unlawful and constituted an offence under Turkish

law.

        The applicants' lawyers submitted that the offence under

Article 141 of the Turkish Criminal Code had been introduced into

Turkish law in 1936 and was an adaptation of the Italian Code of State

Security which had been drawn up during the time of Mussolini.  After

the amendments to this Article on 16 July 1938, which removed the

expression "by force", this offence was constituted solely by

adherence to a particular opinion.

        In a judgment dated 29 November 1988 the Izmir State Security

Court sentenced the applicants to four years and two months'

imprisonment.  The Court stated that it had taken into account the

statements made to the police only in so far as they had been

confirmed by other material evidence.  It observed that the provisions

of the European Convention for the Prevention of Torture and Inhuman

or Degrading Treatment or Punishment were not directly applicable by

the national courts as the Turkish legislator had not yet amended

domestic law in accordance with the provisions of that Convention.  The

Court further noted that Article 141 of the Turkish Criminal Code was

still in force and that the Constitutional Court had not held this

Article to be unconstitutional or contrary to freedom of thought.  The

Court found that the Communist Party of Turkey was an association of

the type defined in that Article and membership of the Communist Party

of Turkey was sufficient evidence to show that the offence had been

committed, even if the defendant was not guilty of any act of

violence.

        On 10 May 1989 the Court of Cassation upheld this judgment,

ruling that the trial court had rejected the allegations of the

defence for cogent reasons and that examination of the file did not

disclose any error in the contested judgment.

        The applicants were conditionally released on 29 November

(R. Açik) and 7 December 1988 (N. and G. Hazar) respectively.

COMPLAINTS

        The applicants allege violations of Article 3, Article 5

paras. 1 (a), (c), 3 and 4, Article 6 paras. 1, 3 (a), 3 (b) and 3 (d) and

Articles 9, 10, 11 and 14 of the Convention taken alone or in

combination with the other Articles.

1)      Under Article 3 the applicants claim that they were subjected

to torture and ill-treatment by the Izmir police while held

incommunicado in police custody.

        The first applicant complains that she was blindfolded from the

first day of her custody and that for nine days she had to stand up

almost without food or drink and that on the ninth day of her custody

she started having hallucinations.  For the whole of that time she was

held in total isolation without access to her lawyer or her family.

She also complains about police pressure to make her confess to the

charges against her and give information about her activities in the

Communist Party and her contacts with other members.

        The second applicant also alleges that he was blindfolded from

the first day of his custody in isolation.  He complains that he was

beaten, deprived of food and drink, sprayed with cold water and

subjected to electrical shocks.  He claims to have confessed to all the

charges against him and his wife because he could not stand the

torture inflicted on him.

        The third applicant also alleges that he was blindfolded from

the first day of his custody in isolation.  He complains that he was

left standing for long periods with little food or drink and that he

was beaten on the soles of his feet, suspended from the ceiling,

subjected to electrical shocks and sprayed with cold water.  He alleges

that he was under police pressure to confess to the charges against

him and to give information about his activities and relations within

the organisation.

2)      Under Article 5 of the Convention, the applicants allege

violations of:

-       paras. 1 (a) and 1 (c) in that they were not kept in police

custody so that they could be brought before the judicial authorities

or because there were reasonable suspicions against them but with the

purpose of extracting information and confessions from them by force.

During their first seven days in custody the police interrogated the

applicants without informing the Public Prosecutor of their arrest.

Moreover, in spite of the fact that their statements had already been

taken down, the police officers kept them unlawfully in custody five

more days before bringing them before the legal authorities in order

to let the traces of torture disappear in the meantime.  After

appearing before the Public Prosecutor and making new statements, they

were taken back to the police headquarters where they spent the night

in police custody;

-       para. 3 in that they were kept in police custody for fourteen

days without being brought before a judge and in that they were

interrogated under pressure;

-       paras. 1 and 3 in that the length of their detention on remand

(one year, 2 months and 22 days) exceeded a reasonable time.  They

observe that the State Security Court, a special court, was set up to

speed up the procedure;

-       para. 4 in 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 claim that they were deprived of any

possibility of contact with their lawyers.

3)      Under Article 6 para. 1 of the Convention the applicants

submit that their case was not heard by an independent and impartial

tribunal.  The members of the State Security Court are appointed by the

High Council of Judges and Prosecutors.  The President of this Council

is the Minister of Justice and two other members also hold office in

the Ministry of Justice.  One of the three members of the State

Security Court is a military judge responsible to his military

superiors.  The State Security Courts are extraordinary jurisdictions

dealing with political offences.

4)      Furthermore, the applicants submit under Article 6 para. 1 of

the Convention that their trial was unfair in that the State Security

Court mainly took into account in its judgment the statements made by

them and their co-accused to the police under torture.

5)      The applicants further allege violations of:

-       Article 6 para. 3 (a) of the Convention in that, while in

police custody, they were not informed of the precise nature and cause

of the charges against them.  They were kept in police custody with the

sole purpose of having confessions and information extracted from them

about their co-accused;

-       their right under Article 6 para. 3 (b) of the Convention to

have adequate time and facilities for the preparation of their defence

while in police custody.  They were blindfolded for the whole of this

period and were deprived of any possibility of contact with their

lawyers;

-       Article 6 para. 3 (c) of the Convention in that during their

interrogation by the police they were refused the assistance of their

lawyers.  However, the evidence on which the indictment was based and

especially the applicants' confessions were obtained during their

police custody;

-       Article 6 para. 3 (d) of the Convention in that they could not

obtain the examination of the police officers as witnesses before the

Court.  The hearing of these witnesses who had carried out the

enquiries about the documents found in a suitcase could have proved

that they were not involved in this case.

6)      Finally, the applicants allege violations of Articles 9, 10

and 11 taken alone or in conjunction with Article 14 of the Convention

in that they were sentenced to four years and two months'

imprisonment merely for being members of the Communist Party of

Turkey.

PROCEEDINGS

        The applications were introduced on 9 November 1989 and

registered on 16 March 1990.

        On 13 July 1990 the Commission examined the applications.

Pursuant to Rule 42 para. 2 (b), which has since become Rule 48 para.

2 (b) of its Rules of Procedure, it decided to give notice of the

applications to the respondent Government and to invite them to

present their written observations on the admissibility and merits of

the complaints under Articles 3, 6, 9, 10, 11 and 14 of the

Convention.

        The Government submitted their observations on the

admissibility of the applications on 26 October 1990.  The applicants'

observations in reply were received on 18 January 1991 after an

extension of the time-limit.

        On 28 May 1991 the Commission decided to invite the parties

to a hearing on the admissibility and merits of the applications.

        The hearing took place on 11 October 1991.  The parties were

represented as follows:

For the Government

-       Mr.  Münci ÖZMEN                Legal Adviser at the Ministry of

                                       Foreign Affairs, acting Agent

-       Professor Heribert GOLSONG     Counsel

-       Mrs.  Deniz AKCAY               Deputy Permanent Representative

-       Mr.  Cenk Alp DURAK             Judge at the Directorate General

                                       of Criminal Affairs at the

                                       Ministry of Justice, Counsel

For the applicants

-       Mrs.  Sibel Bilge USLU          of the Izmir Bar

THE LAW

I.      Article 3 (Art. 3) of the Convention

        The applicants allege violations of Article 3 (Art. 3) of the

Convention in that they were subjected to torture and inhuman and

degrading treatment while held incommunicado in police custody at

the Izmir Security Department.  Article 3 (Art. 3) of the Convention

reads as follows :

        "No one shall be subjected to torture or to inhuman or

        degrading treatment or punishment."

(i)     Exhaustion of domestic remedies

        The Commission will consider these complaints in their two

branches : a) as regards allegations of specific acts of

ill-treatment, and b) as regards detention incommunicado as such.

a)      The respondent Government argue that the applicants failed to

exhaust the domestic remedies available to them under Turkish law, as

required by Article 26 (Art. 26) of the Convention, in that they did

not file a complaint to the competent Public Prosecutor in order to

obtain an investigation of their allegations by the Turkish

authorities.

        The applicants consider that they have satisfied the condition

laid down in Article 26 (Art. 26) in that, in the course of the

proceedings before the State Security Court, they complained of the

ill-treatment to which they had been subjected during the police

custody.  They had informed the Public Prosecutor of this treatment

before the indictment was read out and they subsequently submitted a

detailed report on their conditions of detention while in police

custody.  Moreover, they requested that the statements they made in

the course of the police custody be removed from their files.

        The Government consider that the course of action chosen by

the applicants was not sufficient for the purpose of Article 26 (Art.

26), since it could not lead to redress of the situation complained

of.  Neither the Public Prosecutor at the State Security Court nor the

Court itself could examine such allegations as such.  If the Public

Prosecutor had considered these allegations to be serious or credible,

he could only have referred them to the competent local Public

Prosecutor. Furthermore the Court itself could discard evidence

obtained under these circumstances.

        The Commission observes that the applicants raised in the

proceedings before the State Security Court and then before the Court

of Appeal their detailed complaints concerning their alleged

ill-treatment during their time in police custody.  The Commission

notes that, under Turkish law, the applicants were entitled to

complain at the trial if their statements to the police had been made

under torture and that ill-treatment of prisoners by police officers

is to be prosecuted ex officio.  The Commission is therefore satisfied

that the applicants have availed themselves of a proper remedy under

Turkish law in that they raised their complaint of ill-treatment at

their trial, first with the Public Prosecutor and subsequently before

the State Security Court and the Court of Cassation.  It concludes from

the Government's submissions that the Public Prosecutor did not refer

the complaint to the competent local Public Prosecutor, because he did

not consider the allegations to be credible, and that, for the same

reason, the Court did not discard the evidence obtained during the

applicants' detention incommunicado.

        The Commission has next examined whether the applicants were

nevertheless required to avail themselves of the further remedy

indicated by the Government by addressing a criminal complaint to the

competent Public Prosecutor.  The Commission here observes that the

present complaint concerns primarily a question of evidence and that

the reason why the applicants were unsuccessful in raising it at their

trial was that the State Security Court and the Public Prosecutor did

not find that there was sufficient evidence to support their detailed

allegations.  The Commission therefore considers that the applicants,

if they had availed themselves of the remedy indicated by the

Government, would have been faced with the same problem of proving

that they had in fact been ill-treated.  The Commission here notes that

during their interrogation by the police the applicants were held in

isolation without access to their lawyers and their families;

according to the applicants the police subsequently kept them in

custody for five more days before bringing them before the legal

authorities in order to let the traces of torture disappear in the

meantime.  The Commission considers that the applicants' failure to

prove their allegations of torture at their trial creates a

presumption to the effect that the remedy indicated by the Government

would not have had any chance of giving the applicants satisfaction

(cf., mutatis mutandis, No. 2686/65, Kornmann, Dec. 13.12.66, Yearbook 9

p. 495 at p. 510; Nos. 14116/88 and 14117/88, Sargin and Yagci, Dec.

11.5.89, to be published in D.R., see also Revue universelle des

droits de l'homme 1989 p. 516).  For this reason the applicants were

not obliged to exhaust the said remedy in order to comply with Article

26 (Art. 26) of the Convention.

b)      The Government have not mentioned any domestic remedy

available to the applicants with regard to their detention

incommunicado, by the police, as such.  Apparently this particular

form of detention was an administrative practice.  The Commission

notes, however, that the applicants referred to their detention

incommunicado before the State Security Court and the Court of

Cassation in support of their complaints that their confessions had

been obtained by torture, in violation of Article 3 (Art. 3) of the

Convention, and that their rights of defence under Article 6 (Art. 6)

of the Convention had been restricted - complaints which were finally

determined at the domestic level by the Court of Cassation.

        The applicants have thus also complied with the six months'

time-limit laid down in Article 26 (Art. 26) of the Convention.

        The Commission concludes in respect of the applicants'

complaints under Article 3 (Art. 3) of the Convention that the

Government's objection of non-exhaustion of domestic remedies must be

rejected and that the applicants have complied with the six months'

rule.

(ii)    Merits

        The Government submit that the applicants have failed to

substantiate their allegations or introduce any evidence

whatsoever to support their claims that they were subjected to

treatment contrary to Article 3 (Art. 3) of the Convention.  They

were examined on two occasions, at the beginning and at the

end of police custody.  The forensic reports showed that there were no

bruises or marks consistent with ill-treatment.  As to the fourteen

days of custody spent incommunicado, the applicants did not

mention any psychological torture.

        The applicants submit that they were subjected to torture and

ill-treatment as explained in their complaints.  The contents of their

statements to the police clearly show that they were forced to give

information about themselves and their contacts.  The Public Prosecutor

tried to cover up the ill-treatment inflicted by the police by saying

that he had himself ordered the investigations, in spite of the fact

that he had not been informed of the applicants' arrest until seven days

after the event.

        The Commission has conducted a preliminary examination of the

parties' submissions.  It notes that the applicants were for fourteen

days held in detention incommunicado and that they have provided

detailed descriptions of their alleged ill-treatment during this

period.  The Commission considers that the complaints under Article 3

(Art. 3) of the Convention raise complex issues of law and fact, the

resolution of which requires an examination of the merits.  It follows

that these complaints are not manifestly ill-founded within the

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

II.     Article 5 (Art. 5) of the Convention

        The applicants allege violations of Article 5 paras. 1 (a), 1

(c), 3 and 4 (Art. 5-1-a, 5-1-c, 5-3, 5-4) of the Convention in that:

-       they were not arrested for the purpose of being brought before

a judge but rather with the intention of extracting information and

confessions from them;

-       they were kept in police custody for fourteen days;

-       while in police custody, they had no remedy to challenge its

lawfulness;

-       the length of their detention on remand was not reasonable.

        However, the Commission is not required to decide whether or

not the facts alleged by the applicants disclose any appearance of a

violation of Article 5, as Article 26 (Art. 5, 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 notes that the applicants were deprived of

their liberty until 29 November and 7 December 1988 respectively,

whereas the applications were introduced on 9 November 1989, i.e. more

than six months later.  It follows that the complaints under Article 5

(Art. 5) of the Convention have been introduced out of time and must

therefore be rejected under Article 27 para. 3 (Art. 27-3) of the

Convention.

III.    Article 6 (Art. 6) of the Convention

(i)     Independence and impartiality of the Courts

        The applicants complain that their case was not heard by an

independent and impartial tribunal as required by Article 6 para. 1

(Art. 6-1) of the Convention, which reads as follows:

        "In the determination ... of any criminal charge against him,

        everyone is entitled to a ... hearing ... by an independent

        and impartial tribunal established by law."

        The Government maintain that the State Security Courts, which

are special courts set up to deal with offences against the existence

and continuity of the State, are ordinary courts, given that they were

established in accordance with the provisions of Article 143 of the

Constitution.  As they are independent judicial organs, no public

authority or agent could give instructions to such courts.  State

Security Courts are composed of three members one of whom is a

military judge.  A civil judge acts as president and all judges have

attained the first grade in the career scale.  The presence of a

military judge in the Court does not prejudice its independence, this

judge being a judge by career and not belonging to the military.  The

judges of State Security Courts evaluate the evidence and take their

decisions in accordance with the law and on their own conscientious

conviction as required by Article 138 of the Turkish Constitution.  The

verdicts of such courts are subject to review by the High Court of

Appeal.

        The applicants argue that the State Security Courts were

established in 1984 to replace extraordinary military courts for the

hearing of cases regarding certain offences, especially political

offences.  The State Security Court established after 1984 should not

have tried the applicants, who had been accused of crimes which had

occurred in 1981-1982.  The High Council of Judges and Prosecutors

which appoints the judges of the State Security Courts and which may

influence their careers is under pressure from the executive given the

fact that its President is the Minister of Justice and the two other

members are from the Ministry of Justice.  The judges and prosecutors

are supervised by inspectors of justice from the Ministry.  The

presence of a military judge and a number of military prosecutors at

the State Security Court causes a problem concerning the independence

of that court, the military judges being responsible to their

commander as military officers.

        The Commission has conducted a preliminary examination of the

parties' submissions.  It considers that in this respect the

applications raise issues of fact and law, the resolution of which

requires an examination of the merits.  It follows that this part of

the applications is not manifestly ill-founded.

(ii)    "Fair trial"

        The applicants complain that their trial was not fair as

required by Article 6 para. 1 (Art. 6-1) of the Convention in that their

statements to the police were taken into account by the trial court.

They also claim that they were not promptly informed of the charges

against them (Article 6 para. 3 (a) (Art. 6-3-a)), that they did not

have adequate time and facilities during their time in police custody

for the preparation of their defence (Article 6 para. 3 (b) (Art.

6-3-b)), that they did not have access to their lawyers during their

police custody (Article 6 para. 3 (c) (Art. 6-3-c)) and that their

request to have the police officers brought as witnesses before the

Court was refused (Article 6 para. 3 (d) (Art. 6-3-d)).

        The Government submit that the applicants and the other

accused were in possession of all the information required for their

defence.  They became aware of the accusations brought against them

when being interrogated by the police, given the fact that the alleged

offences appeared at the top of the statements they signed.  The

applicants had been notified by the arrest warrant about the basis and

the reasons for their arrest on the day following their arrest.  They were

charged in an indictment dated 28 September 1987, indicating the

nature and the elements of the offences they had committed, the

applicable provisions of law, the supporting evidence, the acts of the

accused etc.  The applicants were defended by their lawyers from the

beginning of the trial.  Both the applicants and their lawyers had

every facility for the preparation of a full and free defence.  Under

Article 136 of the Code of Criminal Procedure and a circular from the

Ministry of Justice, the applicants could have asked for lawyers while

in custody but they did not avail themselves of that opportunity.  The

verdict was not based on statements made to the police.  The right to

keep silent and the right to defend oneself are recognised by the

Constitution.  The first applicant did not answer the questions put

by the police.  The criminal charges within the meaning of Article 6

para. 1 (Art. 6-1) of the Convention were laid in the indictment dated 28

September 1987.  The evidence on which the verdict was based was

discussed after this date and during the trial stage.  The Court's

refusal to hear the police officers who arrested the applicants did

not influence the verdict.

        The applicants maintain that the statements made by co-accused

with regard to themselves and their own statements had been extracted

under torture.  Nevertheless, the Public Prosecutor drew up the

indictment on the basis of these documents and submitted them to the

registry of the Court.  Moreover, during the hearings, the State

Security Court read the statements made by the applicants to the

police during their custody, in spite of the lawyers' objections and

in spite of all the complaints of ill-treatment.  The applicants had

been forced, while in police custody, to give information about the

members of the Communist Party and about their relationship with the

Party.  They were not informed about the charges against them.  During

their detention in police custody, they were denied facilities for

preparing their defence.  They did not have access to their lawyers,

the political section of the police being closed to everybody,

including lawyers.  They were held incommunicado during this time

in violation of Article 136 of the Code of Criminal Procedure, which

stipulates that the client must be able to meet his lawyer at every

stage of the proceedings.  The Court refused to hear the policemen and

two other detainees (not accused but held in custody with the

applicants) as witnesses in order to determine the relationship

between the applicants and the Turkish Communist Party.

        The Commission has conducted a preliminary examination of the

parties' submissions.  It considers that also in this respect the

applications raise complex issues of law and fact, the resolution of

which requires an examination of the merits.  It follows that also this

part of the applications is not manifestly ill-founded.

IV.     Articles 9, 10 and 11 in conjunction

        with Article 14 (Art. 9+14, 10+14, 11+14) of the Convention

        The applicants complain of violations of Article 9 (Art. 9)

(freedom of thought), Article 10 (Art. 10) (freedom of expression) and

Article 11 (Art. 11) (freedom of association), taken alone or in

conjunction with the prohibition of discrimination in Article 14 (Art.

14) of the Convention, in that they were sentenced to four years and

two months' imprisonment for being members of the Turkish Communist

Party.

(i)     Exhaustion of domestic remedies

        The Government argue that the applicants failed to exhaust a

domestic remedy in that in the course of the proceedings they neither

invoked Articles 9, 10, 11 and 14 (Art. 9, 10, 13, 14) of the

Convention nor asked the Court to refer the case to the Constitutional

Court.

        The applicants reply that they did not challenge Article 141

and 142 of the Criminal Code because they were trying to prove that

they were innocent and not members of the Turkish Communist Party.

        The Commission notes that the trial court, in its judgment of

29 November 1988, refused to refer the case to the Constitutional

Court, given the fact that the latter had already stated that the

provisions of Article 141 of the Criminal Code were not inconsistent

with freedom of thought and thus not unconstitutional.

        The Commission concludes that the remedy indicated by the

Government cannot be considered as an effective remedy which the

applicants were required to exhaust under Article 26 (Art. 26) of the

Convention (cf., mutatis mutandis, as regards a complaint to the

German Federal Constitutional Court, No. 8544/79, Öztürk, Dec.

19.12.81, D.R. 26 p. 55).

        It follows that the Government's objection of non-exhaustion

of domestic remedies must be rejected.

(ii)    Merits

        The Government state that the applicants were accused of

participating in the activities of an organisation aiming at the

dictatorship of the proletariat.  This accusation was considered proved

and the applicants were sentenced by the Court to four years and two

months' imprisonment.  The applicants were conditionally released in

November/December 1988, one year and three months after their arrest.

On 12 April 1991, Article 141 of the Turkish Penal Code, under which

they had been convicted, was abrogated.

        The applicants submit that Article 141 of the Criminal Code

was an adaptation of the "Code of State Security" promulgated by the

Mussolini Government in Italy.  After the amendments to this Article on

16 July 1938, which removed the expression "by force", this offence

was committed by the mere adherence to a particular opinion.  The

applicants maintain that the Communist Party has been held to be an

association of the type defined in that article, i.e. an association

having the aim of imposing the authority of one social class.

Therefore the freedom to manifest one's beliefs, the freedom of

expression and of association could not be exercised by persons

holding communist views.

        The Commission has carried out a preliminary examination of

the parties' submissions.  It considers that also in this respect the

applications raise complex issues of fact and law that cannot be

resolved without an examination of the merits.  It follows that also

this part of the application is not manifestly ill-founded.

        For these reasons, the Commission, by a majority,

        DECLARES INADMISSIBLE the applicants' complaints under

                              Article 5 (Art. 5) of the Convention concerning

                              their deprivation of liberty;

        DECLARES ADMISSIBLE, without prejudging the merits of the

                             case, the remainder of the applications.

        Secretary to the Commission          President of the Commission

             (H.C. KRÜGER)                       (C.A. NORGAARD)