THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application s no s . 29918/96 , 29919/96 and 30169/96 by Sinan TANRIKULU , Servet AYHAN and Fırat ANLI against Turkey

The European Court of Human Rights (Third Section), sitting on 24 February 2005 as a Chamber composed of:

Mr B.M. Zupančič , President , Mr J. Hedigan , Mrs M. Tsatsa-Nikolovska , Mr V. Zagrebelsky , Mr E. Myjer , Mr David Thór Björgvinsson , judges , Mr F. Gölcüklü, ad hoc judge , and Mr V . Berger , Section Registrar ,

Having regard to the above application s lodged with the European Commission of Human Rights on 25 August 1995 , 25 August 1995 and 4 September 1995 respectively,

Having regard to the Commission ' s partial decision s of 14 October 1996 and 24 June 1996 respectively ,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant ,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having deliberated, decides as follows:

THE FACTS

The applicants, Mr Sinan Tanrı kulu, Mr Servet Ayhan and Mr Fırat Anlı, are Turkish national s, who were born in 1966, 1973 and 1971 respectively, and live in Diyarbakır . The first and the third applicant are lawyers. The first and the second applicants were members of the Human Rights Association and the third applicant was the president of the HADEP Diyarbakır provincial headquar ters at the time of the events.

The first applicant is represented before the Court by Mr Tim Otty, a lawyer practising in London , the second applicant is represented before the Court by Mr Mark Muller, a lawyer practising in London , and the third applicant is represented before the Court by Mr Ahmet Kalpak, a lawyer practising in Diyarbakır .

A. The circumstances of the case

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

On 27 February 1995 the public prosecutor at the Diyarbakır State Security Court (“ the State Security Court”) issued a warrant authorising the search of the provincial headquarters of the HADEP ( Halkın Demokrasi Partisi-People ' s Democracy Party ) and the Diyarbakır branch of the Human Rights Association, following information received by the gendarmes that there was a meeting related to the PKK.

The search was carried out on the same day and the app licants were taken into custody together with eleven other persons by the police officers. According to the report drafted by the gendarmerie on 28 February 1995, at the HADEP headquarters, the police seized eight ERNK ( National Liberation Front of Kurdistan ) and PKK flags, a PKK emblem, sixty-five books and nine VHS videotapes about the PKK, seven audio tapes and documents addressed to the General Secretary of the European Parliament. They also found a pistol on one of the suspects.

The applicants were then brought before a doctor for a medical examination. According to the medical report of 27 February 1995 , the applicants did not bear any physical signs of ill-treatment. They were then handed over to the gendarmes at the Diyarbakır Provincial Gendarmerie Command.

The applicants allege that they were subjected to various forms of ill ‑ tr eatment during their detention.

The first applicant alleges that he was blindfolded, kept in cold, deprived of adequate food and drink and made to listen to loud music. He claims of having his genitals squeezed, being regularly beaten, prohibited to go to the toilette more then once a day , hosed with pressurized water.

The second applicant alleges , in addition to the aforementioned treatments, that he had been hung upside down in such a way that his head would hit the floor and that his nose would bleed. He further claims that his jaw was seriously injured.

The third applicant alleges that he was blindfolded, beaten, insulted and deprived of adequate food and drink. He claims that he suffered from his kidn eys and lungs during this time.

On 9 March 1995 the applicants were brought before a doctor for a medical examination. According to the medical reports, the applicants did not bear any p hysical signs of ill-treatment.

On the same day, the applicants were brought before the public prosecutor and the State Security Court .

Before the court, the first applican t denied his statements given in custody and acknowledged his statements given before the public prosecutor. He contended that his statements in custody contained words which he did not say.

Before the court, the second applicant denied his statements given in custody and acknowledged his statements given before the public prosecutor. He stated that he was working in the canteen of the Oryıl Tabibler housing complex where the Human Rights Association was and that he would bring tea to those who were working there. He claimed that he was not a member of the association and had no idea why he was also taken into custody toget her with the other co-suspects.

Before the court, the third applicant denied his statements taken in police custody and reiterated his statements made before the public prosecutor. He contended that his statements in police custody contained words which he did not say.

The Diyarbakır State Security Court ordered their detention on remand.

2. Criminal proceedings against the applicants

On 22 March 1995 the public prosecutor at the State Security Court filed an indictment with the latter accusing the applicants and the other suspects of having done propaganda on behalf of the PKK. He requested that the applicants and other detainees be convicted and sentenced for membership of an illegal organisation under Articl e 168 § 2 of the Criminal Code.

On 1 May 1995 the applicants appeared before the State Security Court .

Before the court, the first applicant denied the charges against him. He was read his statements given in custody. The applicant stated that these statements were not his.

Before the court, the second applicant denied the charges against him. He reiterated that he was working in the canteen of the building where the Human Rights Association was situated and had been taken int o custody only because of this reason. He denied his statements given in custody and stated that he had given them under duress.

Before the court, the third applicant denied the charges against him and stated that his statements in custody had been taken under duress.

The State Security Court , taking into account the charges and the evidence against the applicants, ordered their release pending trial.

From 1 May 1995 until 8 April 1996 the State Security Court held six hearings.

The third applicant attended the hearing held on 25 March 1996 and requested his acquittal.

On 8 April 1996 the State Security Court acquitted the applicants of all charges. It held that the materials found in the search could have been placed there by anyone and that apart from their statements in custody, which the applicants claimed to have given under duress, there was no evi dence to convict them.

On 16 April 1997 the Court of Cassation uphe ld the aforementioned judgment.

3. Civil proceedings brought by the first applicant

On 26 November 1997 the first applicant filed a petition with the Diyarbakır Assize Court under Law no. 466 pertaining to the payment of compensation to persons unlawfully arrested or detained. The applicant requested compensation in respect of non-pecuniary damage to compensate t he periods he spent in custody.

On 30 December 1997 the Diyarbakır Assize Court awarded the applicant an amount of compensation in respect of non-pecuniary damage to compensate the periods he spent in custody and detention on remand.

On 29 September 1998 the Court of Cassation upheld the judgment of the first-instance court.

4. Criminal proceedings against the policemen

On an unspecified date the authorities commenced an investigation into the first and the third applicants ' allegations on ill-treatment following their complaint before the Europ ean Commission of Human Rights.

On 11 March 1999 the Diyarbakır Provincial Administrative Council decided that no criminal proceedings should be instituted against the nine police officers due to lack of evidence and the subsequent death of one of them.

On 31 May 2001 the Supreme Administrative Court decided to strike off the case since the st atutory time-limit had elapsed.

B. Rele vant domestic law and practice

A full description of the relevant domestic law and practice, at the time of the events, can be found in Elçi and Others v. Turkey ( nos. 3145/93 and 25091/94, §§ 568-595, judgment of 13 November 2003 ) .

According to domestic law, the gendarmerie and the police force have the same competence in respect of their ju dicial duties. Pursuant to Law no. 2803 concerning the organisation, duties and powers of the gendarmerie , the y do not have competence in areas where there is an ordinary police force. Article 10 §§ 2 and 3 of the above-cited law stipulates that the gendarmerie can cooperate and coordinate their actions with the other security forces and in cases where the gendarmerie and the police force consider that they will be or might be insufficient, they can be temporarily replaced, by the high administrative author ity, in each others duty zones.

COMPLAINTS

The applicants complain under Article 3 of the Convention that they were subjected to ill-treatment by the gendarmes while in custody.

The applicants contend under Article 5 § 1 (c) of the Convention that their arrest and detention was unlawful. In this connection, the first and the third applicant s submit that criminal investigations against lawyers must be carried out by a public prosecutor according to Articles 58 and 59 of the Advocacy Law, whereas they were interrogated by the gendarmes. The third applicant maintains that criminal investigations against political party administrators must be carried out by a public prosecutor pursuant to domestic law. The first and the second applicant s assert that t he y had been detained and interrogated by the gendarmes despite the presence of ordinary police force in Diyarbakır .

The applicants complain under Article 5 § 3 of the Convention that the length of their detention in custody was excessive.

The first and the second applicants submit under Article 6 of the Convention that they were not tried by an independent and impartial tribunal since the judge sitting on the be nch treated them as terrorists when they were brought before it on 9 March 1995 .

The first and the second applicants contend under Article 10 of the Convention that they were prosecuted for communicating with fo reign persons and institutions.

The third applicant complains under Articles 10 and 11 of the Convention that he was prosecuted because of his political activities.

The first and the second applicants allege under Article 13 of the Convention that they had no effective remedies in respect of their Convention rights.

The first and the second applicants allege under Article 14 of the Convention that they were discriminated against because of their political opinions.

The first and the second applicants submit under Article 18 of the Convention that the restrictions on their rights and freedoms set forth in the Convention were applied for purposes not permitted under the Convention.

The first and the second applicants finally aver under Article 34 of the Convention that the criminal proceedings brought against them were a result of their activities concerning the protection of the interests of individuals who have been the vict ims of human rights violations.

THE LAW

1. The applicants complain under Article 3 of the Convention that they were subjected to ill-treatment w hile they were held in custody.

The Government contend that the applicants failed to exhaust the remedies available to them under constitutional, criminal, civil and administrative law.

The applicants submit that the remedies referred to by the Government were illusory, inadequate and ineffective since both torture and denial of effective remedies were carried out as a matter of administrative practice. Therefore, they were not required to pur sue any remedy in domestic law.

The Court considers it unnecessary to determine whether the applicants have exhausted domestic remedies within the meaning of Article 35 § 1 of the Convention since this part of the applications is inadmissible for the following reasons:

The Court observes that the applicants have not produced any concrete evidence in support of their allegations of ill-treatment. Although the Court recognises the difficulty for detained p eople to obtain evidence of ill ‑ treatment during custody, it, nevertheless, considers that they could have produced some medical evidence which would have contradicted the results of the medical report of 9 March 1995 . In this connection, the Court observes that the applicants did not object to the impugned medical report. Nor was it suggested that they had r equested to see another doctor.

The Court notes that any ill-treatment inflicted in the way as alleged by the applicants would have left marks on the applicants ' bodies, in particular being subjected to pressure hosing and beaten up, which would have been observed by a doctor who examined them at the end of their detention in police custody , some eleven days later, before they were fo rmally remanded in custody (see Tanrıkulu and Others v. Turkey (dec.) , no. 45907/99, 22 October 2002). In this connection, the Court would point out that the second applicant did not provide any medical report to support his claim of having suffered a serious jaw injury. Likewise, the third applicant failed to substantiate his allegations of having suff ered from his kidney and lungs.

The Court observes that during the applicants ' trial no mention was made by the trial court of the allegations of ill-treatment brought to its attention. The case-file reveals that the first applicant never allude d to the fact that he was ill-treated in the hand of the gendarmes and that the second and the third applicant claimed only to have given their statements under duress when they appeared before the court on 1 May 1995 . The Court finds that a mere allegation of duress in itself is not sufficient to be interpreted as an allegation of ill-treatment. Consequently, the national authorities had no evidence to start an investigation into the applicants ' al legations.

Accordingly, the Court concludes that the applicants have not laid the basis of an arguable claim that they were ill-treated at the hands of the gendarmes. For these reasons, the Court finds that their complaints under Article 3 of the Convention are inadmissible as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

2. The applicants contend under Article 5 § 1 (c) of the Convention that their arrest and detention was unlawful. The applicants complain under Article 5 § 3 of the Convention that the length of their dete ntion in custody was excessive.

A. The Government ' s objections

(a) The Government submit that the applicants failed to exhaust domestic remedies in respect of their complaints under Article 5 § 3 . They argue that it would have been possible for the applicants to seek a remedy using the procedure laid down in Law no. 466, which guarantees the possibility of an award of damages to any person who had been unlawfully deprived of his liberty, or who, after being lawfully detained, is not subsequently committed for trial or is acquitted after standing trial. However, since the applicants failed to invoke Law no.466, the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

The applicants maintain that the length of their detention in custody was lawful under domestic law. They allege therefore that they were unable to invoke Law no. 466 since it is applicable to damage suffered as a result of unlawful detention which contravenes A rticle 5 § 3 of the Convention.

The Court observes that at the material time in proceedings before the State Security Courts the length of detention in custody could be extended to fifteen days by order of the prosecution. The length of the detention in custody being challenged by the applicants did not therefore exceed the maximum time-limit provided for in domestic law.

In the instant case, the Court notes that the first applicant did apply for compensation in accordance with Law no. 466 and was granted non ‑ pecuniary damage in respect of the time he had spent in custody and in detention on remand. However, the Court observes that the applicant received the compensation not because he was unlawfully detained for a long time but because he was acquitted after standing trial.

In any event, the Court notes that the applicants complained of the length of their detention in custody, not that they had no remedies whereby they could obtain compensation. The remedy mentioned by the Government with reference to Law no. 466 concerns Article 5 § 5 only, which has not been invoked by the applicants (see Demir and Others v. Turkey , judgment of 23 September 1998, Reports of Judgements and Decisions 1998, pp. 2652 ‑ 53, § 37).

Accordingly, the Court dismisses the Government ' s objection.

(b) The Government further submit that the third applicant failed to comply with the six-month rule for his complaints under Article 5 of the Convention.

The Court reiterates that according to its established case-law, where no domestic remedy is available, the six-month period runs from the date of the act alleged to constitute violation of the Convention; however, where it concerns a continuing situation, the period of six-months runs from the end of the situation concerned.

The Court notes that the third applic ant was detained on remand on 9 March 1995 and lodged an application with the Court on 4 September 1995 . Accordingly, the application was lodged within the six-months from the date on which the act complained of ende d.

Accordingly, the Court dismisses the Government ' s objection.

B. Merits

(a) The first and the third applicants contend under Article 5 § 1 (c) of the Convention that their arrest and detention was unlawful. In this connection, they submit that criminal investigations against lawyers must be carried out by a public prosecutor according to Articles 58 and 59 of the Advocacy Law, whereas they were interrogated by the gendarmes. The third applicant maintains that criminal investigations against political party administrators must be carried out by a public prose cutor pursuant to domestic law.

The Government contend that there was no doubt as to the legality of the arrest and the taking into custody of the first and the second applicants. They submit with regard to the third applicant that Law no. 1136 on Advocacy Law provides that the public prosecutor carries out the inquiries against the lawyers, only if the offences were committed as a result of or during their work. In the present case, the Government maintain that the applicant ' s detention in custody did not have a causal link with his work as a lawyer.

The Court considers, in light of the parties ' submissions, that these complaints raise complex issues of law and fact, the determination of which should depend on an examination of the merits of the application as a whole. The Court concludes, therefore, that these parts of the complaints are not manifestly-ill founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring them inadmissible have been established.

(b) The first and the second applicant assert under Article 5 § 1 (c) of the Convention that their arrest and detention was unlawful since t he y had been detained and interrogated by the gendarmes despite the presence of ordinary police force in Diyarbakır .

The Court observes that the applicant s w ere arrested by police officers and taken into custody, following information received by the gendarmes of a gathering concerning an illegal organisation in the premises. It appears , therefore , that their arrest was requested by the gendarmes on account of an investigation which the latter was conducting but which the act of arrest required the ass istance of the police officers. They were later on handed over to the gendarmes for interrogation and detention since the investigation was conducted by them. In view of the above , it cannot be held that their arrest and subsequent detention was unlawful . It follows that this part of the application must be rejected as being manifestly ill-founded with in the meaning of Article 35 §§ 3 and 4 of the Convention.

(c ) The applicants complain under Article 5 § 3 of the Convention that the length of their detention in custody was excessive.

The Government recall their derogation of 5 May 1992 , with regard to the matters complained of under Article 5 of the Convention. They argue that it is absolutely essential that they derogate from the procedural guarantees governing the detention of persons belonging to terrorist armed groups and that, on the facts, it is impossible to provide court supervision in accordance with Article 5 of the Convention owing to the difficulties inherent in investigating and suppressing terrorist criminal activities. The Government further submit that the Parliament was examining a proposition of a law for the purposes of shortening the length of police custody and the procedural guarantees concerning the conditions of detention.

The Court considers, in light of the parties ' submissions, that these complaints raise complex issues of law and fact, the determination of which should depend on an examination of the merits of the application as a whole. The Court concludes, therefore, that these parts of the complaints are not manifestly-ill founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring them inadmissible have been established.

3 . The first and the second applicants submit under Article 6 of the Convention that they were not tried by an independent and impartial tribunal since the judge sitting on the bench treated them as terrorists when they were brought before it on 9 March 1995 .

The Court observes that the applicants were acquitted of all the charges against them. They, therefore, cannot claim to be a victim within the meaning of Article 34 of the Convention. Consequently, the Court considers that this part of the application should be rejected as manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

4 . The first and the second applicants assert under Article 10 of the Convention that they were prosecuted for communicating with foreign persons and institutions. The third applicant complains under Articles 10 and 11 of the Convention that he was prosecuted because of his political activities.

The Court considers that the third applicant ' s complaint s should be examined from the standpoint of Article 10 alone.

The Court observes that the applicants were charged with membership of an illegal organisation and were, subsequently, acquitte d of all the charges by the Diyarbakır State Security Court . The Court considers, therefore, that the criminal proceedings against the applicants cannot be viewed in terms of an interference with their rights under Article 10. It follows that this part of the application must be rejected as being manifestly ill-founded with the meaning of Article 35 §§ 3 and 4 of the Convention.

5 . The first and the second applicants allege under Article 13 of the Convention that they had no effective domestic remedies in respect of their Convention rights.

According to the Court ' s case-law, Article 13 applies only where an individual has an “arguable claim” to be the victim of a violation of a Conventio n right (see Boyle and Rice v. the United Kingdom , judgment of 27 April 1988 , Series A no. 131, § 52).

The Court observes that the applicants ' complaint under Article 13 of the Convention as laid out in the application form and their submissions before the Court relate rather to the absence of an effective domestic remedy in respect of their complaint pertaining to the alleged ill-tr eatment they were inflicted on.

In view of its conclusions above, the Court considers that the applicants have no arguable claim of a violation of their rights in conjunction with their complaints pertaining to Article 3 of the Convention, which would have required a remedy within the meaning of Article 13.

It follows that this complaint is also manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

6 . The first and the second applicants claim under Article 14 of the Convention that they were discriminated against becau se of their political opinions.

The Court notes that the applicants failed to submit any evidence in support of their allegations under this Article. It follows that their allegations are unsubstantiated. Consequently, the Court considers that this part of the application should be rejected as manifestly ill-founded within the meaning of Article 35 § § 3 and 4 of the Convention.

7 . The first and the second applicants contend under Article 18 of the Convention that the restrictions on their rights and freedoms set forth in the Convention were applied for purposes not permitted under the Convention.

The Court considers that an examination of this part of the application does not disclose any appearance of a violation of this Article. It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejec ted pursuant to Article 35 § 4.

8 . The first and the second applicants aver under Article 34 of the Convention that the criminal proceedings brought against them were a result of their activities concerning the protection of the interests of individuals claiming to have been the victims of human rights violations.

The Court observes that the applicants ' complaint under Article 34 is not related to the hindrance of their right to an individual petition by the respondent Government. Consequently, the Court considers that this part of the application is also inadmissible as being manifestly ill-founded withi n the meaning of Article 35 § 3

For these reasons, the Court unanimously

Decides to join the applications;

Declares admissible, without prejudging the merits, the applicants ' complaints concerning the length of their detention in custody and the first and the third applicants ' complaints concerning the unlawfulness of their arrest and detention in custody;

Declares the remainder of the application s inadmissible.

Vincent B erger Bo š tjan M. Z upančič Registrar President