FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 36961/97 by Kadir SATIK against Turkey

The European Court of Human Rights, sitting on 25 April 2002 as a Chamber composed of

Mr C.L. Rozakis , President , Mrs F. Tulkens , Mr P. Lorenzen , Mr E. Levits , Mr A. Kovler , Mr V. Zagrebelsky , judges , Mr F. Gölcüklü , ad hoc judge , and Mr S. Nielsen , Deputy Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 18 June 1997,

Having regard to the Commission’s decision of 9 September 1998,

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

Having deliberated, decides as follows:

THE FACTS

The applicant, Kadir Satık , is a Turkish national, who was born in 1966 and lives in Istanbul. He is represented before the Court by Mr İrfan Güler , a lawyer practising in Istanbul.

A. The circumstances of the case

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

On 21 January 1997 the prison warders found three issues of a magazine titled “The Imperialist Capitalist System and the YPD” ( Emperyalist Kapitalist Sistem ve YPD Üzerine ) on Y.Ö. and S.Ö. who were paying a visit to N.Ö. and S.S. in the Gebze Prison. The magazines were published by the PKK (Worker’s Party of Kurdistan ) and the TRK/RIZGARİ.

In their statements Y.Ö. and S.Ö. stated that they obtained the magazines from the applicant at the Komal Publication House in Istanbul.

On 23 January 1997 police officers from the Istanbul Security Directorate conducted a search at the premises of the Komal Publication House and subsequently arrested the applicant along with eight others.

On 24 January 1997 the Istanbul Security Directorate requested the public prosecutor attached to the Istanbul State Security Court to authorise an extension of the applicant’s detention period. On the same day the public prosecutor authorised the Security Directorate to extend the detention period until 31 January 1997.

On 27 January 1997 the applicant’s lawyer petitioned the public prosecutor attached to the Istanbul State Security Court and requested to see the applicant. The public prosecutor rejected this request without giving any reasons.

On 31 January 1997 the applicant was questioned by the public prosecutor and refused the accusations against him. The applicant was released on the same day.

On 3 February 1997 the public prosecutor decided not to commit the applicant for trial ( takipsizlik kararı ) on the grounds that there existed no evidence to substantiate his involvement in the activities of terrorist organisations.

B. Relevant domestic law and practice

Pursuant to Article 128 of the Code of Criminal Procedure, a person arrested and detained shall be brought before a Justice of the Peace within twenty-four hours. This period may be extended to four days when the individual is detained in connection with a collective offence.

At the material time Article 30 of Law no. 3842 of 18 November 1992, amending the legislation on criminal procedure, provided that, with regard to offences within the jurisdiction of the state security courts, any arrested person had to be brought before a judge within forty-eight hours at the latest, or, in the case of offences committed by more than one person, within fifteen days.

Furthermore, the fourth paragraph of Article 128 of the Code of Criminal Procedure (as amended by Law no. 3842/9 of 18 November 1992) provides that any person arrested and/or whose police custody has been extended on the orders of a prosecutor may challenge the measure in question before the appropriate district judge and, if successful, be released. In proceedings in State Security Courts (governed by Law no. 2845 of 16 June 1983) Article 128 of the Code Criminal Procedure applies only as it was worded before the amendments of 18 November 1982, when it did not provide for any appeal by persons arrested and/or kept in police custody on the orders of a prosecutor.

Article 19 of the Turkish Constitution gives a detained person the right to have the lawfulness of his detention reviewed, on application to the court with jurisdiction over his case.

Article 1 of Law no. 466 on the payment of compensation to persons arrested or detained provides:

“Compensation shall be paid by the State in respect of all damage sustained by persons

(1) who have been arrested, or detained under conditions or in circumstances incompatible with the Constitution or statute law;

(2) who have not been immediately informed of the reasons for their arrest or detention;

(3) who have not been brought before a judicial officer after being arrested or detained within the time-limit laid down by statute for that purpose;

(4) who have been deprived of their liberty without a court order after the statutory time-limit for being brought before a judicial officer has expired;

(5) whose close family have not been immediately informed of their arrest or detention;

(6) who, after being arrested or detained in accordance with the law, are not subsequently committed for trial ..., or are acquitted or discharged after standing trial; or

(7) who have been sentenced to a period of imprisonment shorter than the period spent in detention or ordered to pay a pecuniary penalty only...”

COMPLAINTS

The applicant complains under Article 5 § 3 of the Convention that he was kept in police custody for eight days without being brought before a judge.

The applicant complains under Article 6 of the Convention that he was deprived of his right to legal assistance while in custody. He further submits that there exists no right under Turkish law which provides a right to legal assistance during police custody.

Lastly, the applicant complains under Article 13 of the Convention that he had no effective domestic remedy under Turkish law in order to challenge the length of his custody period.

THE LAW

A. Alleged violation of Article 5 § 3 of the Convention

The applicant complains that he was kept in police custody for an excessive period of time. He relies on Article 5 § 3 of the Convention, which provides:

“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”

1. Exhaustion of domestic remedies

The Government submit that the applicant has failed to exhaust domestic remedies. According to them, it would have been possible for the applicant to apply for compensation using the procedure laid down in Law no. 466 for those who had been unlawfully deprived of their liberty or, having been detained in accordance with a procedure prescribed by law, had been acquitted, among other possible outcomes. The Government further submit that the applicant could have brought his complaints before a Justice of the Peace pursuant to Article 19 of the Constitution in conjunction with Article 128 of the Code of Criminal Procedure.

The applicant refutes the Government’s argument. He claims that the remedy suggested by the Government is ineffective in his case. He submits that Law no. 466 provides that compensation shall be awarded to persons who were unlawfully detained and to persons detained pending trial who are subsequently acquitted. As his length of custody would appear to be in conformity with domestic law any claim for compensation lodged under Law no. 466 or an application under Article 128 of the Code of Criminal Procedure would have been futile.

The Court reiterates that the only remedies, which Article 35 of the Convention requires to be exhausted, are those that relate to the breaches alleged and at the same time are available and sufficient. The existence of a remedy must be sufficiently certain, failing which it will lack the accessibility and effectiveness required for the purposes of Article 5. It falls to the respondent State to establish that these various conditions are satisfied (see, mutatis mutandis , the Van Droogenbroeck v. Belgium judgment of 24 June 1982, Series A no. 50, p. 30, § 54, the Don Jong , Baljet and Van den Brink v. the Netherlands judgment of 22 May 1984, Series A no. 77, p. 19, § 39 and the Yağcı and Sargın v. Turkey judgment of 8 June 1995, Series A no. 319-A, p. 17, § 42).

In the present case the Court observes that the remedies referred by the Government cannot be considered as effective for the purpose of Article 35 § 1 in the applicant’s case since the applicant’s detention period appears to have been in conformity with the provisions of domestic law (see also Neşet Çakmak v. Turkey (dec.), no. 31882/96, 9 January 2001, unpublished).

In the light of the foregoing the Court rejects the Government’s objections under this head.

2. Merits

The applicant maintains that he was not brought “promptly” before a judge. He claims that his length of police custody was in accordance with the domestic law.

The Government make no submissions on the merits of the applicant’s complaints.

The Court considers, in the light of the parties’ submissions’ that this part of the application raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits of the application. The Court concludes, therefore, that this part of the application is not manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention. No other grounds for declaring it inadmissible have been established.

B. Alleged violation of Article 6 and 13 of the Convention

The applicant complains under Article 6 and 13 of the Convention that he was not able to take proceedings by which the lawfulness of his detention in police custody could be decided because he did not have legal assistance. The Court is of the opinion that the applicant’s complaints under this head should be examined under Article 5 § 4 of the Convention, which provides as follows:

“4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

The Government submit that the applicant could have challenged the lawfulness of his detention and the extension of his detention period before a judge pursuant to Article 128 of the Code of Criminal Procedure.

In reply the applicant maintains that he had been practically unable to file an application under Article 128 of the Code of Criminal Procedure because he had been unable to contact his lawyer. Furthermore, he had not been given access to the documents concerning his arrest that would have enabled him to prepare such a challenge.

The Court considers that the issue of non-exhaustion goes to the merits of the issue under Article 5 § 4 whether the applicant had a remedy available by which the lawfulness of his detention could be determined speedily.

Accordingly, the Government’s objections under this head should be joined to the merits.

The Court considers, in the light of the parties’ submissions’ that this part of the application raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits of the application. The Court concludes, therefore, that this part of the application is not manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention. No other grounds for declaring it inadmissible have been established.

For these reasons, the Court unanimously

Joins to the merits the issue of non-exhaustion in relation to Article 5 § 4 of the Convention;

Declares the application admissible, without prejudging the merits of the case.

Søren Nielsen Christos Rozakis              Deputy Registrar President