FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 34684/97 by Vahdettin YOLCU against Turkey

The European Court of Human Rights ( First Section) , sitting on 3 May 2001 as a Chamber composed of

Mrs E. Palm , President , Mr L. Ferrari Bravo , Mr Gaukur Jörundsson , Mr B. Zupančič , Mr T. Panţîru , Mr R. Maruste , judges , Mr F. Gölcüklü , ad hoc judge , and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 19 December 1996 and registered on 30 January 1997,

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 is a Turkish national, born in 1958 and currently detained in the Sakarya Prison in Turkey. He is represented before the Court by Mr Mehmet Aslanargın , 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 24 July 1996 police officers from the Istanbul Security Directorate arrested the applicant in his house and placed him in custody in the course of an investigation conducted against the members of the PKK.

In a letter dated 25 July 1996 the Istanbul Security Directorate informed the office of the public prosecutor at the Istanbul State Security Court that on account of the applicant’s confessions the police officers had conducted a search in the applicant’s house and found several explosives. In the same letter the Istanbul Security Directorate requested the Istanbul State Security public prosecutor to authorise the extension of the applicant’s detention period. On the same date the Istanbul State Security Court public prosecutor authorised the Istanbul Security Directorate to extend the detention period until 5 August 1996.

On 5 August 1996 the applicant was seen by a doctor at the Istanbul Forensic Medicine Institute who noted in his report that he observed no external pathological finding other than the applicant’s complaint of pain on his left arm. The doctor concluded that the applicant would be fit for work.

On 5 August 1996 the applicant was questioned by the public prosecutor at the Istanbul State Security Court. During his questioning the applicant partly confirmed the veracity of his statement he gave in police custody on account of his involvement in the PKK.

On 5 August 1996 the applicant was questioned by the investigating judge at the Istanbul State Security Court. The applicant rejected his involvement in the PKK and the accusations mentioned in the statement he gave in police custody. On the same date the investigating judge ordered the applicant’s detention on remand.

At a hearing on 18 October 1996 before the Istanbul State Security Court the applicant rejected the allegations against him and stated that he had been forced to sign a statement without having read it. The applicant confirmed the veracity of the statements he gave before the public prosecutor and the investigating judge.

At two hearings on 18 October 1996 and 9 December 1996 the Istanbul State Security Court rejected the applicant’s requests for release pending trial.

On 23 May 1997 the Istanbul State Security Court convicted the applicant of aiding and abetting the PKK pursuant to Article 169 of the Turkish Criminal Code and Article 5 of Law No. 3713. It sentenced the applicant to five years’ imprisonment and debarred him from employment in public service.

On 20 June 1997 the applicant lodged an appeal with the Court of Cassation against the decision of the Istanbul State Security Court. In his appeal, the applicant referred to the medical examination conducted on 5 August 1996 and alleged that he had been kept in police custody for twelve days in order that the results of the torture to which he had been subjected would disappear.

On 12 March 1998 the Court of Cassation upheld the decision of the Istanbul State Security Court. In its judgment the court stated that the applicant’s representative had requested a hearing be held before the Court of Cassation . However, he had failed to attend the hearing.

B. Relevant domestic law and practice

1. Criminal law and procedures

Article 17 of the Turkish Constitution provides:

“...

No one shall be subjected to torture or ill-treatment; no one shall be subjected to penalty or treatment incompatible with human dignity.

...”

Article 243 of the Turkish Criminal Code ( Türk Ceza Kanunu ) provides:

“A President or member of a court or official body or any other public official who, in order to extract a confession of guilt in respect of a criminal offence, tortures or ill-treats any person, or engages in inhuman conduct or violates human dignity, shall be punished by up to five years’ imprisonment and disqualified from holding public office temporarily or for life.

...”

Article 245 provides:

“Civil servants charged with the forcible execution of an order, police officers and any other officials charged with enforcement who, either of their own accord or on the orders of their superiors, enforce the order concerned in an unlawful manner or who, in doing so, ill-treat, strike or cause bodily harm to another shall be punished by between one and three years’ imprison ment and temporarily disqualified from holding public office.”

Article 135/a of the Turkish Code of Criminal Procedure ( Türk Ceza Muhakemeleri Usulü Kanunu ) provides:

“ The statement of the accused should be based on his free will. The accused shall not be subjected to physical or mental interference such as torturing, medication by force, fatigue, deceit, use of physical force and hardness and other use of devices which will result in the obstruction of his free will.

No unlawful benefit shall be promised.

The statements that are extracted from the accused by using the unlawful ways described above cannot be considered as evidence even if the accused does not challenge their lawfulness.”

Article 136 § 1 of the Turkish Code of Criminal Procedure (amended by Law 3842 of 18 November 1992) provides:

“The accused or a person arrested shall have access to legal assistance of one or more lawyers at any stage and level of the investigation.”

Article 31 of Law 3842 provides that the above provision shall not be applicable for charges that fall under the jurisdiction of the State Security Courts.

2. The law relating to detention in police custody

Article 19 of the Constitution provides:

“Everyone has the right to liberty and security of person.

No one shall be deprived of his liberty save in the following cases and in accordance with the formalities and conditions prescribed by law:

...

The arrested or detained person must 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 ... These time-limits may be extended during a state of emergency.

A person deprived of his liberty for whatever reason shall have the right to take proceedings before a judicial authority which shall give a speedy ruling on his case and order his immediate release if it finds that the deprivation of liberty was unlawful.

Compensation must be paid by the State for damage sustained by persons who have been victims of treatment contrary to the above provisions, as the law shall provide.”

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 section 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.

Section 1 of Law no. 466 on the payment of compensation to persons unlawfully 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 3 of the Convention that he was tortured in police custody. He alleges that he was beaten, insulted, hung by his arms, given electric shocks and not allowed to sleep.

The applicant complains under Article 5 § 1 (a) of the Convention that his detention was unlawful. He submits that the provisions of the Law on the Procedure of State Security Courts permit up to fifteen days’ detention in police custody which can be extended up to thirty days.

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

The applicant complains under Article 6 § 3 (c) of the Convention that he was not permitted the assistance of a lawyer during questioning by the police, the public prosecutor and the investigating judge.

The applicant finally complains that he is the victim of discrimination in breach of Article 14 of the Convention taken in conjunction with Article 6 in that under the Code of Criminal Procedure individuals have the right to the assistance of a lawyer during questioning by the police and when they appeared before the public prosecutor and the investigating judge, whereas those suspected of offences which fall within the jurisdiction of the State Security Courts are prevented from enjoying this right.

THE LAW

A. Alleged violation of Article 3 of the Convention

The applicant complains that he was subjected to treatment prohibited under Article 3 of the Convention.

The Government’s preliminary objection

The Government raised preliminary objections in two limbs. They observe that the application to the Commission was lodged on 19 December 1996, which is before the final decision taken by the Court of Cassation . The Government infer from this that the application was lodged prematurely and that, consequently, the Court should declare the application inadmissible.

The Government further submit that the applicant has failed to raise his allegation of torture before the national authorities. They state that the applicant did not make any submissions about his allegation of torture when he appeared before the public prosecutor or the investigating judge. They maintain that the applicant could have lodged applications before the national authorities in relation to his allegation. However, he failed to do so. In this regard the Government conclude that the applicant did not exhaust domestic remedies within the meaning of Article 35 § 1 of the Convention.

In reply the applicant points out that the domestic remedies are ineffective in cases concerning allegations of torture. The applicant further submits that it is extremely difficult for victims of torture to prove their allegations or to have the perpetrators brought to justice.

As regards the first limb of the Government’s objection the Court recalls its Ringeisen v. Austria judgment , where it held that “it must be left open to the Commission to accept the fact that the last the stage of remedies may be reached shortly after the lodging of the application but before the Commission is called upon to pronounce itself on admissibility” (the Ringeisen v. Austria judgment of 16 July 1971, § 91).

The Court points out that, in the present case, the Court of Cassation rendered its judgment on 12 March 1998, which is before the Court has delivered its decision on admissibility.

In these circumstances, the Court rejects the Government’s argument that the application was lodged prematurely and concludes that the application was introduced within six months as required by the Convention.

As to the second limb of the Government’s objection, the Court considers that it does not have to determine whether the applicant has exhausted domestic remedies within the meaning of Article 35 § 1 of the Convention since the application is inadmissible for the following grounds.

In the instant case the applicant alleged that he was beaten, insulted, hung by his arms, given electric shocks and not allowed to sleep.

The Court observes in the first place that the applicant has failed to produce any concrete evidence in support of his allegations of ill-treatment. While the Court recognises the difficulty for detained people to obtain evidence of ill-treatment during police custody, in the instant case, the applicant failed to submit to the Court a detailed explanation about the treatment he had suffered while in custody. The Court further observes that in the medical examination conducted on 5 August 1996 at the Istanbul Forensic Medicine Institute it was observed that there had been no external pathological finding other than the applicant’s complaint of pain on his left arm. In this regard the Court notes that any ill-treatment inflicted as alleged by the applicant, particularly electric shocks and hanging by the arms, can be expected to leave visible signs of injury (see Kaplan v. Turkey ( dec ), no. 24932/94, 19.9.2000). Furthermore, the applicant did not produce any medical evidence to contradict the results of the medical examination carried out on 5 August 1996.

Even assuming that the applicant’s circumstances could have caused him to feel vulnerable, powerless and apprehensive of the representatives of the State during his custody (see Labita v. Italy [GC], no. 26772/95-(6.4.00) and Ilhan v. Turkey [GC], no. 22227/93, § 63), the Court can see no reason why the applicant or his lawyer had made no reference to the complaints of ill-treatment during the procedures before the national authorities.

It follows the applicant has not laid the basis of an arguable claim that he was ill-treated at the hands of the police. Furthermore, the authorities had no evidence whatsoever to start an investigation about the applicant’s allegations. In the particular circumstances of the case, the Court considers that the procedural obligation of the authorities of the respondent State cannot be said to have been breached (see the above-cited Kaplan v. Turkey decision and Ş. T. v. Turkey ( dec ), No. 28310/95, 9.11.1999, unpublished).

For these reasons the Court finds that the applicant’s complaint that he was tortured in police custody is inadmissible as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

B. Alleged violation of Article 5 § 1 (a) of the Convention

The applicant complains that his detention was unlawful. He submits that the provisions of the Law on the Procedure of State Security Courts permit up to fifteen days’ detention in police custody which can be extended up to thirty days. He invokes Article 5 § 1 (a) of the Convention.

The Government make no submissions on this complaint.

The Court observes that the applicant had not been detained after he was convicted by a competent court at the time he lodged his application with the Commission.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

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

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

1. The Government’s preliminary objection

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 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 unlawfully detained and to persons detained pending trial who are subsequently acquitted. As his length of detention would appear to be in conformity with domestic law any claim for compensation lodged under Law no. 466 would have been futile.

The Court would stress the importance of Article 5 in the Convention system: it enshrines a fundamental human right, namely the protection of the individual against arbitrary interference by the State with his or her right to liberty. Judicial control of interferences by the executive with the individual’s right to liberty is an essential feature of the guarantee embodied in Article 5 § 3, which is intended to minimise the risk of arbitrariness and to ensure the rule of law (see the Brogan and Others v. the United Kingdom judgment of 29 November 1988, Series A. no. 145-B, p. 32, § 58).

The Court reiterates that 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 (see, mutatis mutandis , the Van Droogenbroeck v. Belgium judgment of 24 June 1982, p. 30, § 54, the De 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).

The Court notes that that the provisions of Law no. 466 contemplate compensation for unlawful deprivation of liberty - a situation which did not obtain in the present case - and compensation paid to persons who have been lawfully detained but who are subsequently not committed for trial, or are acquitted or discharged after standing trial (see the Sakık and Others v. Turkey judgment of 26 November 1997, Reports of Judgments and Decisions 1997-VII, p. 2626, § 60). The Court observes that the latter case is not relevant either, since the applicant’s conviction was upheld at last instance by the Court of Cassation on 12 March 1998.

The Court accordingly dismisses the Government’s preliminary objection.

2. Merits

The Government draw attention to the extremely serious nature of the terrorist offences in question and highlight that the applicant’s custody period was lawful under Article 30 of Law no. 3842.

The applicant maintains his account of events.

As regards the substance of the applicant’s complaint concerning Article 5 § 3 of the Convention, the Court considers, in the light of the parties’ submissions, that the case 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 as a whole. The Court concludes, therefore, that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

D. Alleged violation of Article 6 § 3 (c) of the Convention

The applicant complains that he was not permitted the assistance of a lawyer during questioning by the police, the public prosecutor and the investigating judge. He invokes Article 6 § 3 (c) of the Convention.

The Government maintain that at no stage of the proceedings did the applicant request legal assistance even though Article 136 of the Code of the Criminal Procedure provided for such. In the Government’s submission that provision continues to remain valid in the context of offences falling within the jurisdiction of the State Security Courts. Furthermore, the applicant’s lawyer failed to appear at the hearing before the Court of Cassation . For the above reason, the Government request the Court to declare the complaint inadmissible as being manifestly ill-founded.

The applicant disputes the Government’s reliance on Article 136 of the Code of Criminal Procedure. He claims that offences falling within the jurisdiction of the State Security Courts are governed by Law no. 3842 which restricts an accused’s right to legal assistance at the pre-trial stage.

As regards the substance of the applicant’s complaint concerning Article 6 § 3 of the Convention, the Court considers, in the light of the parties’ submissions, that the case 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 as a whole. The Court concludes, therefore, that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

E. Alleged violation of Article 14 of the Convention

The applicant submits that under the Code of Criminal Procedure individuals have the right to assistance of a lawyer during questioning by the police and when brought before the public prosecutor and the investigating judge. However, persons suspected of offences which fall within the jurisdiction of the State Security Courts are prevented from enjoying this right. He invokes Article 14 of the Convention read in conjunction with Article 6.

The Government maintain that Turkish law is applied to all individuals without discrimination.

The Court recalls that Article 14 is not concerned with all differences in treatment but only with differences having as their basis or reason a personal characteristic (“status”) by which persons or groups of persons are distinguishable from each other (see the Kjeldsen , Busk , Madsen and Pedersen v. Denmark judgment of 7 December 1976, Series A no. 23, p. 29, § 56).

The Court notes that the distinction impugned by the applicant is not a distinction which is made between different groups of people, but between different types of offences, according to the legislature’s view of their gravity (see mutatis mutandis the Gerger v. Turkey judgment of 8 July 1999, to be published in Reports 1999, § 69). The Court sees no ground for concluding that that approach amounts to a form of “discrimination” that is contrary to the Convention. In consequence it finds that the applicant’s complaint that he is the victim of a breach of Article 14 taken together with Article 6 of the Convention is inadmissible ratione materiae .

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant’s complaints that he was kept in police custody for twelve days and that he was denied the assistance of a lawyer during his pre-trial detention;

Declares inadmissible the remainder of the application.

Michael O’Boyle Elisabeth Palm Registrar President