SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 34499/97 by Mehmet Ali KORTAK against Turkey

The European Court of Human Rights ( Second Section) , sitting on 23 November 2000 as a Chamber composed of

Mr C.L. Rozakis , President , Mr A.B. Baka , Mr P. Lorenzen , Mrs M. Tsatsa - Nikolovska , Mr E. Levits ,

Mr A. Kovler , judges , Mr F. Gölcüklü , ad hoc judge ,

and Mr E. Fribergh , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 9 November 1996 and registered on 14 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 1956 and living in Ä°zmir (Turkey). He is represented before the Court by Mr Ä°smail Kavak , a lawyer practising in Ä°zmir .

A. The circumstances of the case

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

On 17 June 1996 police officers from the anti-terrorist branch of the Ä°zmir Security Directorate arrested the applicant on suspicion of membership of the PKK.

On 27 June 1996 the İzmir State Security ordered the applicant’s detention on remand.

On 15 July 1996 the Chief Public Prosecutor filed an indictment with the Ä°zmir State Security Court charging the applicant with aiding and sheltering members of the PKK. The charges were brought under section 169 of the Turkish Criminal Code and section 5 of Law no. 3713.

On 15 July 1996 the İzmir State Security Court convicted the applicant as charged and sentenced him to 3 years and 6 months’ imprisonment, pursuant to section 169 of the Turkish Criminal Code. The applicant appealed. However, he did not submit any information concerning the outcome of the criminal proceedings against him before the Court of Cassation .

B. Relevant domestic law

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 48 hours at the latest, or, in the case of offences committed by more than one person, within 15 days.

Section 1 of Law no. 466 gives a right to financial compensation for unlawful arrest or detention.

COMPLAINT

The applicant complains under Article 5 § 3 of the Convention that that he was held in police custody for 10 days without being brought before a judge.

THE LAW

A. Government’s preliminary objection

The Government submit that the applicant failed to exhaust domestic remedies. They argue that it would have been possible for the applicant to seek a remedy using the procedure laid down in Law no. 466, which provides for an award of damages to any person who has 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 applicant failed to invoke Law no. 466, the application should be rejected for non-exhaustion of domestic remedies within the meaning of Article 35 § 1 of the Convention.

The applicant submits that he was unable to invoke Law no. 466 since it is applicable only to damage suffered as a result of unlawful detention. He alleges that any claim for damages lodged under Law no. 466 would have been doomed to failure since the length of his detention in police custody was lawful under domestic law.

The Court notes that at the material time in proceedings before the State Security Courts the length of detention in police custody could be extended to 15 days by order of the public prosecutor. The length of detention in police custody challenged by the applicant did not therefore exceed the maximum time-limit provided for in domestic law. According to Law no. 466, cited by the Government, an action against the authorities can only be brought for compensation for damage suffered as a result of unlawful deprivation of liberty.

The Court reiterates that, in earlier cases based on similar facts, the Convention organs found that this remedy was ineffective on the grounds, inter alia , that the Turkish judicial authorities to which applicants complained had already concluded that the detention in question was lawful (see, for example, the Sakık and Others v. Turkey judgment of 26 November 1997, Reports of Judgments and Decisions 1997-VII, p. 2626, § 60).

In any event, the Court notes that the applicant complained of the excessive length of his detention in police custody, not that he had no legal remedies whereby he could obtain damages for detention. The applicant’s complaint therefore goes to Article 5 § 3 of the Convention, whereas the remedy mentioned by the Government concerns only Article 5 § 5 (see, the Demir and Others v. Turkey judgment of 23 September 1998, Reports 1998 ‑ VI, pp. 2652 and 2653, § 37).

The Court considers, therefore, that the Government’s submission that the applicant failed to exhaust domestic remedies cannot be upheld.

B. Merits

As regards the substance of the applicant’s complaints, 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 application 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.

For these reasons, the Court, unanimously,

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

Erik Fribergh Christos Rozakis Registrar President