FIRST SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 34481/97 by Melahat FÄ°LÄ°Z and Nadir KALKAN against Turkey

The European Court of Human Rights ( First Section) , sitting on 14 November 2000 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 22 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 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 applicants,

Having deliberated, decides as follows:

THE FACTS

The applicants are Turkish nationals, born in 1976 and 1957 respectively and living in Diyarbakır (Turkey). They are represented before the Court by Mr Mustafa İşeri and Mr Suat Çetinkaya , lawyers practising in Izmir .

A. The circumstances of the case

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

On 28 July 1996 police officers from the anti-terrorist branch of the Izmir Security Directorate arrested the applicants on suspicion of membership of an illegal organisation, the PRK- Rızgari .

On 5 August 1996 the applicants appeared before Izmir State Security Court, which on the same day, ordered their detention on remand.

On 28 August 1996 the Chief Public Prosecutor filed an indictment with the State Security Court charging the applicants with membership of the PRK- Rızgari and undertaking actions aimed at separating a portion of the territories that are under the sovereignty of the state from the administration of the state. The charges were brought under sections 125 and 168 of the Turkish Criminal Code.

In a judgment dated 14 August 1997 the Izmir State Security Court acquitted Ms Melahat Filiz of the charges holding that there was insufficient evidence to convict her. The court found Mr Nadir Kalkan guilty of offences under sections 125 and 168 and sentenced him to capital punishment.

On 19 September 1997 Mr Kalkan lodged an appeal with the Court of Cassation . The applicant did not submit any information concerning the outcome of the criminal proceedings against him.

B. Relevant domestic law

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.”

Section 168 of the Turkish Criminal Code provides:

“Any person who, with the intention of committing the offences defined in Articles ..., forms an armed gang or organisation or takes leadership ... or command of such a gang or organisation or assumes some special responsibility within it shall be sentenced to not less than fifteen years’ imprisonment.

The other members of the gang or organisation shall be sentenced to not less than five and not more than fifteen years’ imprisonment.”

Section 125 of the Turkish Criminal Code provides:

“It shall be an offence, punishable by the death penalty, to commit any act aimed at subjecting the State or any part of the State to domination by a foreign State, diminishing the State’s independence or removing part of the national territory from the State’s control.”

Under section 3 and 4 of the Prevention of Terrorism Act (Law no. 3713 of 12 April 1991), the offences defined in sections 125 and 168 of the Criminal Code are classified as “terrorist” acts.

Pursuant to section 5 of  Law no. 3713, penalties laid down in the Criminal Code as punishment for the offences defined in sections 3 and 4 of the Act are increased by one half.

Under section 9 of Law no. 3842 on procedure in the state security courts, only these courts can try cases involving the offences defined in Articles 125 and 168 of the Criminal Code.

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 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 applicants complain under Article 5 § 3 of the Convention that they were held in police custody for 8 days without being brought before a judge.

They submit further that, under the provisions of the Turkish Code on Criminal Procedure, persons taken into police custody must be brought before a judge within a maximum period of 4 days. This period can be extended up to 15 days in relation to offences falling within the jurisdiction of the State Security Courts. The applicants allege therefore that two types of custody periods between different types of offences constitute a discriminatory treatment contrary to Article 14 of the Convention.

THE LAW

A. Government’s preliminary objection

The Government submit that the applicants failed to exhaust domestic remedies. 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 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 applicants failed to invoke Law no. 466, the application should be rejected on account of non-exhaustion of domestic remedies within the meaning of Article 35 § 1 of the Convention.

The applicants submit that they were unable to invoke Law no. 466 since the length of their pre-trial detention was lawful under domestic law. They argue that Law no. 466 is applicable only to damage suffered as a result of unlawful detention and that it does not afford compensation for an excessive length of detention in police custody which contravenes Article 5 § 3 of the Convention.

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 applicants 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 1997-VII, p. 2626, § 60).

In any event, the Court notes that the applicants complained of the excessive length of their detention in police custody, not that they had no legal remedies whereby they could obtain damages for detention. The applicants’ 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 applicants failed to exhaust domestic remedies cannot be upheld.

B. Merits

1. Complaints under Article 5 § 3

The applicants complain of the excessive length of their detention in police custody. They invoke Article 5 § 3 of the Convention which provides, in so far as relevant:

“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.”

The Government submit that the length of the applicants’ detention in police custody was lawful in accordance with 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 for up 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 applicants contend in reply that the length of their detention in police custody was excessive. They maintain that despite the amendments made to Law no. 3842 they can still claim to be 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.

2. Complaints under Article 14 in conjunction with Article 5 § 3

The applicants complain of a breach of Article 14 of the Convention, which provides:

“The enjoyment of the rights and freedoms set forth in [the] 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 applicants submit that according to the Turkish Code on Criminal Procedure persons taken into police custody must be brought before a judge within a maximum period of four days, whereas in relation to offences which fall within the jurisdiction of the State Security Courts this period may be extended up to 15 days in accordance with Law no. 3842. In this respect, the applicants allege that that difference constitutes unlawful discrimination, contrary to Article 14 of the Convention.

The Government did not comment on this complaint.

The Court considers that this question relates to “a detainee’s right to be promptly brought before a judge or other officer authorised by law to exercise judicial power” and should therefore be examined under Article 14 taken together with Article 5 § 3 of the Convention.

The Court reiterates that Article 14 is not concerned with all differences of treatment but only with differences having as their basis or reason a personal characteristic (“status”) by which persons or group 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 in principle the aim of Law no. 3842 is to penalise people who commit terrorist offences and that anyone arrested and charged with an offence falling within the scope of that law will be treated less favourably with regard to the length of detention in police custody than persons arrested and charged with an offence under the ordinary law.

In this regard, the Court considers that the distinction is made not 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). It therefore concludes that that practice does not amount to a form of “discrimination” that is contrary to the Convention.

It follows that this part of the application must be rejected as being manifestly ill-founded within the meaning of Articles 35 § 3 of the Convention.

For these reasons, the Court, unanimously,

DECLARES ADMISSIBLE, without prejudging the merits, the applicants’ complaint under Article 5 § 3 of the Convention that they were not brought promptly before a judge or other officer authorised by law to exercise judicial power;

DECLARES INADMISSIBLE the remainder of the application.

Michael O’Boyle Elisabeth Palm Registrar President