FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 31896/96 by Mehmet DEÄžERLÄ° against Turkey

The European Court of Human Rights (First Section), sitting on 17 October 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 3 June 1996 and registered on 13 June 1996,

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 1974 and living in Istanbul, Turkey. He is represented before the Court by Mr Niyazi Çem , 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 4 December 1995 police officers from the anti-terrorist branch of the Istanbul Security Directorate arrested the applicant and his friend A.A. They accused the applicant of having obtained money by extortion from S.E. for the PKK.

On 12 December 1995 a single judge of the Istanbul State Security Court ordered the applicant’s detention on remand.

On 13 December 1995 the Chief Public Prosecutor filed an indictment with the Istanbul State Security Court charging the applicant with membership of the PKK and having obtained money by extortion for the said organisation, contrary to Arti cles 168 § 2, 495 and 522 of the Turkish Criminal Code.

On 28 November 1996 the Istanbul State Security acquitted the applicant of membership of the PKK, but convicted him, under Article 498 of the Criminal Code, of hav ing obtained money by extortion from S.E. by using the name of the PKK. The court sentenced the applicant to 12 years and 3 months’ imprisonment. The applicant appealed.

On 28 April 1998 the Court of Cassation upheld the applicant’s conviction.

B. Relevant domestic law and practice

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

Article 168 of the Criminal Code reads as follows:

“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”

Article 498 of the Criminal Code provides:

“Whoever, by threatening in any way with great harm to life, chastity or property or by showing a false government order, compels a person to send or put in a certain place or secure to the possession of the offender money or property or legally valid notes shall be punished by heavy imprisonment for eight to fifteen years.”

Under section 3 of the Prevention of Terrorism Act (Law no. 3713 of 12 April 1991), the offence defined in Article 168 of the Criminal Code is classified as a “terrorist act”.

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.

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 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 LAW

The applicant complains of the excessive length of his pre-trial detention. He invokes 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.”

A. Government’s preliminary objection

The Government raised a preliminary objection in three limbs pleading non ‑ exhaustion of domestic remedies. The applicant should have challenged the length of his pre ‑ trial detention and alleged a violation of his rights guaranteed under Article 5 § 3 of the Convention during the proceedings before the Istanbul State Security Court. He should have also awaited the outcome of the criminal proceedings against him before lodging his application with the European Commission of Human Rights. Furthermore, it would have been possible for the applicant to seek a remedy using the procedure laid down in Law no. 466, which guarantees the possibility of an award of damages to any person who has been unlawfully deprived of his liberty, or who, after being lawfully deta ined, is not subsequently committed for trial or is acquitted after standing trial.

The applicant maintained that he could not challenge the length of his pre-trial detention since it was in accordance with domestic law. He pointed out that 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 any person arrested 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 fifteen days. The applicant submitted therefore that his pre-trial detention for eight days conformed to the legislation then in force. He argued also that his complaints did not concern the award of damages, but the excessive length of time he had spent in police custody. In this respect, the applicant contended that remedies afforded by Law no. 466 could not redress his Article 5 § 3 grievances. He alleged that any claim for damages lodged under Law no. 466 would be doomed to failure since the length of his pre ‑ trial detention conformed to the domestic law.

As regards the first limb of the Government’s objection, the Court notes that in the present case the length of the applicant’s pre-trial detention did not exceed the limit prescribed by law, so that the applicant could not successfully challenge it and therefore did not have any remedy within the meaning of Article 35 § 1 of the Convention available to him.

As to the second limb of the objection, the Court points out that when an act of an authority is not open to a remedy individuals are required to bring their applications within six months of the act complained of (see application no. 10389/83, Dec. 17.6.86, DR 47, p. 72). As noted above, the applicant did not have any remedy to challenge the length of his pre-trial detention since it was in conformity with domestic law. On that account, the applicant was required to bring his application within six months of his appearance before the judge who ordered his detention on remand and not to await the outcome of the trial, as asserted by the Government.

As to the last limb, the Court notes that section 1 of Law no. 466 provides for the possibility of damages either for unlawful deprivation of liberty or for 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). In the instant case, the length of the applicant’s pre-trial detention was in accordance with Turkish law, as the Government conceded. Furthermore, the latter condition is not relevant either, since the applicant’s conviction was upheld at last instance by the Court of Cassation on 28 April 1998. The Court considers therefore that any claim for damages lodged under Law no. 466 had no prospect of success. Moreover, the Government did not supply any example of damages having been awarded by Turkish courts in respect of allegations concerning excessive length of pre-trial detention, which was in contravention of the requirements of Article 5 § 3 of the Convention.

In any event, the Court notes that the applicant complained of the excessive length of his pre-trial detention, 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 accordingly dismisses the preliminary objection.

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.

Michael O’Boyle Elisabeth Palm Registrar President