SECOND SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 34688/97 by Abdullah AKIN 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 21 August 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 Commission’s partial decision of 11 September 1997,

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 1967 and living in Diyarbakır (Turkey). He is represented before the Court by Mr Mahmut Vefa , 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.

The applicant is the provincial president of a pro-Kurdish political party, the Hadep , in Diyarbakır .

On 23 June 1996 the applicant participated in the annual congress of the Hadep in Ankara. During that congress, certain persons wearing masks took down a Turkish flag in the hall and substituted a PKK flag and a poster of Abdullah Öcalan . Slogans in favour of the PKK and Abdullah Öcalan were shouted by persons alleged to be militants of the PKK. Following this incident the Chief Public Prosecutor at the Ankara State Security Court instructed police officers from the anti-terrorist department of the Ankara Security Department to arrest the executive board members of the Hadep , the board president and members of the assembly, as well as those responsible for the impugned acts.

On 24 June 1996, at around 4 a.m., the police officers arrested the applicant and the above-mentioned party members on the orders of the Public Prosecutor when they were about to leave the congress hall. An arrest protocol drawn up by the police officers and signed by all the detainees stated that they had been arrested on account of the removal of the Turkish flag, substituted by the PKK flag, and the display of the poster of Abdullah Öcalan .

On 4 July 1996 the Ankara State Security Court ordered the applicant’s detention on remand.

On 23 August 1996 the Chief Public Prosecutor filed an indictment with the Ankara State Security Court charging the applicant with membership of the PKK, contrary to Article 168 of the Turkish Criminal Code.

The parties did not submit any information concerning the outcome of the criminal proceedings against the applicant.

B. Relevant domestic law

At the material time, section 30 of Law no. 3842 of 18 November 1992 provided that, with regard to offences within the jurisdiction of the State Security Courts – including Article 168 of the Criminal Code – 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.

COMPLAINTS

The applicant complains under Article 5 §§ 1 and 3 of the Convention that he was held in police custody for 11 days without being brought before a judge or other officer authorised by law to exercise judicial power.

He maintains under Article 5 § 2 of the Convention that the police officers did not inform him promptly of the reasons for his arrest.

The applicant alleges under Article 14 of the Convention, in conjunction with the above-mentioned Articles, that the reasons for his arrest were his Kurdish identity and his affiliation to the Hadep , since this is seen as the main Kurdish political party.

THE LAW

A. Complaints under Article 5 §§ 1 and 3

The applicant complains under Article 5 §§ 1 and 3 of the Convention that he was held in police custody for 11 days without being brought before a judge or other officer authorised by law to exercise judicial power.

The Court observes that the applicant has not complained that he was unlawfully deprived of his liberty, in breach of Article 5 § 1 of the Convention, in particular Article 5 § 1 (c). It considers therefore that this complaint should be considered from the standpoint of Article 5 § 3 alone, which provides, so far as relevant, as follows:

“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...”

1. 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, this complaint should be rejected for non-exhaustion of domestic remedies within the meaning of Article 35 § 1 of the Convention.

The applicant submits 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.

2. Merits

The Government submit that the length of the applicant’s detention in police custody was lawful in accordance with the domestic law then in force. The Government point out that the custody periods were shortened by Law no. 4229 of 12 March 1997, which amended Law no. 3842. In this respect, they state that persons arrested for collective offences must be brought before a judge within 48 hours. This period can be prolonged by up for to four days by a written order of the public prosecutor owing to the difficulties in collecting evidence or to the number of perpetrators, or for similar causes. If the investigation is not concluded within this period, it can be prolonged for up to seven days upon the request of the public prosecutor and the decision of the judge.

The applicant contends in reply that the length of his detention in police custody was excessive. He maintains that despite the amendments made to Law no. 3842 he can still claim to be a victim of a violation of Article 5 § 3.

The Court considers, in the light of the parties’ submissions, that this part of the case raises complex issues of law and of 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 of the Convention. No other grounds for declaring it inadmissible have been established.

B. Complaints under Article 5 § 2

The applicant submits that the police officers did not inform him promptly of the reasons for his arrest. He invokes Article 5 § 2, which provides, so far as relevant, as follows:

“Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.”

The Government refute the applicant’s submission. With reference to the arrest protocol of 24 June 1996 signed by the applicant, they claim that the applicant was informed promptly of the reasons for his arrest.

The Court notes that the arrest protocol drawn up by the police officers clearly stated that the applicant had been arrested, as one of the leaders of the Hadep , accountable for its acts, for the taking down of the Turkish flag, substituted by the PKK flag, and the display of a poster Mr Öcalan , as well as the shouting of slogans in favour of the PKK. In these circumstances, the Court considers that the applicant must be deemed to have been aware of the reasons for his arrest since he signed this protocol immediately after his arrest.

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

C. Complaints under Article 14

The applicant complains that the reasons for his arrest were his Kurdish identity and his affiliation to the Hadep , since this is seen as the main Kurdish political party. He invokes Article 14 of the Convention, which provides as follows:

“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

The applicant maintains that those who do not agree with the official view of the State on the Kurdish question are subjected to intimidation.

The Government deny the applicant’s allegations. They argue that had there been a causal link between the applicant’s arrest and his Kurdish origin, as well as his affiliation to the Hadep , then all the participants at the congress would have been arrested. The police officers arrested the applicant and others on the orders of the public prosecutor since they were considered responsible for the impugned events.

The Court has examined the applicant’s allegations in the light of the evidence submitted to it, but considers them unsubstantiated.

It follows that this part of the application 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,

Declares admissible, without prejudging the merits, the applicant ’s complaint concerning the length of his pre-trial detention;

Declares inadmissible the remainder of the application.

Erik Fribergh Christos Rozakis Registrar President