SECOND SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 3921/02 by Fahriye ÇETİ NKAYA and Akın ÇAĞLAYAN against Turkey

Application no. 35003/02 Application no. 17261/03 by Akı n ÇAÄžLAYAN by Fahriye ÇETÄ°NKAYA against Turkey      against Turkey

The European Court of Human Rights (Second Section), sitting on 5 J anuary 200 6 as a Chamber composed of:

Mr J.-P. Costa , President , Mr A.B. Baka , Mr R. Türmen , Mr K. Jungwiert , Mr M. Ugrekhelidze , Mrs A. Mularoni , Mrs E. Fura-Sandström , judges , and Mrs S. Dollé , Section Registrar .

Having regard to the above application s respectively lodged on 23 October 2001, 13 July 2002 and 6 May 2003 ,

Having deliberated, decides as follows:

THE FACTS

The applicants, Ms Fahriye Çetinkaya and Mr Akın Çağlayan , are Turkish nationals who were born in 1978 and 1980 respectively , and live in Istanbul . They are represented before the Court by Mrs F. Karakaş , a lawyer practising in Istanbul .

The facts of the case, as submitted by the applicants, may be summarised as follows.

On 29 July 2001 the applicants were arrested on suspicion of having participated in an illegal demonstration which took place in Ãœmraniye . They were subsequently taken to the Ãœmraniye Security Directorate.

According to the arrest reports drafted by the police officers, on the day of the incident, in Ümraniye , a group of fifteen people closed the main street to traffic by blocking the side streets with dustbins, and they initiated a protest rally. They were carrying torches and shouting slogans in support of the PKK [1] . When they noticed that policemen were approaching, they started to run away. The first applicant, who was identified by the police as one of the protesters, was arrested while trying to do so. The second applicant was arrested following a chase. The police prevented him from being lynched. It was further noted in the arrest report that the second applicant ’ s lip was injured.

The first applicant signed the arrest report, while the second applicant abstained from doing so. The second applicant alleged that, when the police caught him, people on the street, who heard the accusations against him, began to attack and curse him. However, the police did not protect him.

The applicants were taken to their homes for a search. According to body and house search protocols, signed by the applicants, nothing incriminating was seized.

Following his examination by a doctor at the HaydarpaÅŸa Numune Hospital , the medical report dated 29 July 2001 concluded that the second applicant had an abrasion on his upper lip and a 5-15 centimetre hyperaemia on the right side of his chest. It was noted that it was necessary to consult chest and ear, nose and throat s pecialists.

Thereafter the applicants were handed over to the Anti-Terrorism Department of the Istanbul Security Directorate.

On 31 July 2001 , upon the request of the Anti-Terrorism Department, the public prosecutor at the Istanbul State Security Court prolonged the applicants ’ detention in police custody until 2 August 2001 .

In their statements dated 31 July 2001 , both applicants admitted having organized and participated in illegal demonstrations in support of the PKK.

On 1 August 2001 , the public prosecutor extended the applicants detention for three more days.

On 2 August 2001 the applicants were confronted with other suspects and were forced to sign confessions without knowing their contents . Moreover , they were taken to several other locations where similar demonstrations ha d taken place and were forced to sign on-site reports which were drafted after these inspections.

The applicants were taken to the Forensic Medicine Institute for medical examinations both in the evening of 3 August 2001 and in the morning of 4 August 2001 . They were unable to complain of ill-treatment as the police officers who were allegedly responsible for their ill-treatment were on the premises. In the medical reports, it was noted that there were no signs of blows on the applicants ’ bodies.

On 4 August 2001 the applicants were taken before the public prosecutor, where they denied all the allegations made against them. They contended that they were forced to sign police statements without reading their contents. Later on, the applicants were taken before a judge at the Istanbul State Security Court . The first applicant contended that, although there were no marks on her body, she had been tortured in police custody. The second applicant maintained that police officers had hit him, pulled his hair, yelled at and insulted him. The court ordered their detention on remand.

On 6 August 2001 another doctor at the Forensic Medicine Institute drafted a report concerning the second applicant. The doctor noted that, in view of the findings in the report of 29 July 2001 , she could only draft a final report after the applicant had been examined by chest and ear, nose and throat s pecialists.

On 7 August 2001 the Public Prosecutor at the Istanbul State Security Court filed an indictment, charging the applicants with aiding and abetting the PKK under Article 169 of the Criminal Code. Furthermore, the Public Prosecutor ordered the second applicant ’ s transfer to the Cerrahpaşa Hospital for a medical check up.

On 8 August 2001 the second applicant was taken to the ear, nose and throat clinic of the Sağlamcılar State Hospital . According to the medical report which was drafted on 16 August 2001 , the applicant had not suffered any hearing loss.

On 22 August 2001 the applicants filed two separate petitions with the Fatih Public Prosecutor, complaining about their ill-treatment during their arrest and detention in police custody. The first applicant contended that she had been beaten, cursed and threatened with rape. The second applicant complained that, during his arrest, the police had intentionally remained passive when people had tried to lynch him. Moreover, he complained that he had been blindfolded, insulted and beaten up. His testicles were squeezed and his nose and mouth were covered in order to create a fear of suffocation. He was forced to clean the floors of the Security Directorate. Additionally, both applicants complained that the doctors did not properly examine them, and that they were unable to complain of their injuries as the police officers were present in the room.

On 1 November 2001 the first hearing was held before the Istanbul State Security Court . The court gave a decision of non-jurisdiction and transferred the case file to the Ãœmraniye Criminal Court of First Instance. Moreover, considering that the applicants had permanent residences, it ordered their release pending trial.

On 5 March 2002 the Fatih Public Prosecutor gave a decision of non-prosecution, holding that the first applicant ’ s injuries, noted in the medical report dated 29 July 2001, were caused by the people who had attempted to lynch him prior to his rescue and arrest by the police. On 25 March 2002 the second applicant filed an objection against the decision of non-prosecution. On 6 May 2002 the Beyoğlu Assize Court dismissed his objection.

On 9 August 2002 the Public Prosecutor gave a decision of non-prosecution in respect of the police officers who were allegedly responsible for the first applicant ’ s ill-treatment. On 3 September 2002 she filed an objection against this decision. On 17 December 2002 Beyoğlu Assize Court dismissed her objection.

The criminal case against the applicants is still pending before the Ãœmraniye Criminal Court of First Instance.

COMPLAINTS

The applicants complain that they were subjected to various forms of ill-treatment in police c ustody, in violation of Article 3 of the Convention. Moreover , the second applicant complains about the treatment to which he was subjected during his arrest.

Invoking Article s 6 and 13 of the Convent ion in conjunction with Article 3, they contend that they were denied access to a court for their complaints, and that there was no effective investigation into the treatment to which they were subjected while in police custody.

The applicants complain, under Article 5 § 1 (c) of the Convention, that there were no reasonable suspicions on which to arrest them. They argue, under Article 5 § 2 of the Convention, that they were not informed promptly of the reasons for their arrest or of the charges against them. Moreover, they contend that the length of their detention in police c ustody was in breach of Article 5 § 3 of the Convention. They also allege , under Article 5 § 4 of the Convention , that they were unable to challenge the lawfulness of their detention in police custody. T he applicants then allege, under Article 5 § 5 , in conjunction with Article 13 of the Convention , that it was not possible for them to claim compensation for a violation of Article 5 in the domestic courts.

The applicants next complain, under Article 6 § 3 (a) and (b) of the Convention, that they were not informed promptly of the nature and cause of the accusations against them, and they were not given adequate time and facilities for the preparation of their defence. They allege that they were deprived of their right s of defence as they were not allowed to consult a lawyer during their questioning by the police , in violation of Article 6 § 3 (c) of the Convention. Furthermore, they allege that the fact that they were confronted with other suspects was in breach of Article 6 § 3 (d) of the Convention.

Finally, the applicant s complain, under Article s 13 and 14 of the Convention , about the difference in the procedure applicable to offences determined by the State Security Court .

THE LAW

1. The applicant s complain under Article 3 of the Convention that they have been ill-treated in police custody. Moreover, they contend under Articles 6 and 13, in conjunction with Article 3 , that they were denied access to court because the authorities failed to investigate their allegations of ill-treatment.

The Court observes th at the essence of the applicant s ’ complaint under Article 6 of the Convention concerns the domestic authorities ’ alleged failure to mount an effective criminal investigation into the alleged ill-treatment by the police officers . In the Court ’ s view, it is therefore more appropriate to examine the applicant ’ s Article 6 complaint in relation to the more general obligation on Contracting States under Article 13 of the Convention to provide an effective remedy in respect of violations of the Convention (see , amongst other authorities, Kaya v. Turkey , judgment of 19 February 1998, Reports of Judgments and Decisions 1998 I, p. 329, § 105 , and Aksoy v. Turkey , judgment of 18 December 1996, Reports 1996 ‑ VI, p. 2286, § 93).

The Court considers that it cannot, on the basis of the case file, de termine the admissibility of the s e complaint s and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application s to the respondent Government.

2. The applicants next complain, under Article 5 § 1 (c) of the Convention, that they were unlawfully and arbitrarily deprived of their liberty as there was no reasonable suspicion for their arrest. They further argue, under Article 5 § 2 of the Convention, that they were not informed promptly of the reasons for their arrest.

The Court observes that police officers witnessed the unlawful demonstration and arrested the participants who tried to run away. It considers that the applicants ’ arrest and detention may therefore be considered to have been “in accordance with a procedure prescribed by law” on the basis of a “reasonable suspicion” that they had committed an offence, within the meaning of Article 5 § 1 (c) of the Convention.

As regards the second complaint, the Court observes that the arrest reports and the house and body search protocols clearly indicated that the applicants had been taken into custody on suspicion of having participated in an illegal demonstration in support of the PKK. The first applicant signed all relevant documents. A lthough the second applicant abstained from signing the arrest report, he maintained in his application form that the people on the street had attempted to lynch him when they heard the accusations against him. In any event, given the fact that the applicants were arrested immediately after the protest rally, while trying to run away from the police, the Court concludes that the applicants would have known that they were suspected of having participated in this illegal demonstration.

It follows that these complaints must be rejected as being manifestly ill founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

3. The applicant s also complain under Article 5 §§ 3, 4 and 5 of the Convention that they were kept in detention in police custody for a total of six days, that they had no effective domestic remedy to challenge the lawfulness and the length of that detention, and that it was im possible to obtain compensation in respect of these breaches .

The Court considers that it cannot, on the basis of the case file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application s to the respondent Government

4. The applicants then complain under Article 6 § 3 (a), (b), (c) and (d) of the Convention that they did not have a fair trial as they were not informed promptly of the nature and cause of the accusations against them and they were not given adequate time and facilities for the preparation of their defence. They also allege that they were deprived of their right s of defence as they were not allowed to consult a lawyer during their questioning by the police . They further complain about their confrontation with the other accused.

The Court notes that the proceedings are still pending and that this part of the application s is premature . It finds that domestic remedies have not been exhausted, as required by Article 35 § 1 of the Convention. This part of the applications should therefore be rejected under Article 35 § 4 of the Convention.

5. Finally, the applicant s complain, under Article s 13 and 14 of the Convention , about the difference in the procedure applicable to offences determined by the State Security Court .

The Court has examined the applicants ’ allegation under Article 14 and recalls its case-law whereby the distinction made between the type of offences tried by the State Security Courts and the ordinary criminal courts has an objective and reasonable justification based on the gravity of the crimes under consideration (see, for example, İçö z v. Turkey , no. 54919/00, partial admissibility decision of 9 January 2003, and, mutatis mutandis , Gerger v. Turkey [GC], no. 24919/94, § 69, 8 July 1999 ).

It follows that this complaint is be rejected as being manifestly ill founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

Similarly, as the Article 14 complaint is clearly unfounded, the complaint under Article 13 has no arguable basis ( Boyle and Rice v. the United Kingdom , judgment of 27 April 1988 , Series A no. 131, § 52) and must also be rejected as being manifestly ill founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to join the applications;

Decides to adjourn the examination of the applicants ’ complaints concerning their alleged ill-treatment in police custody and their right to an effective remedy in this regard ; the length of their detention in police custody, the alleged deprivation of their right to challenge the lawfulness of their arrest and a lack of available compensation in this respect;

Declares the remainder of the application s inadmissible.

S. Dollé J.-P. Costa Registrar President

[1] . The Kurdistan Workers’ Party