FIRST SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 30453/96 by Güven ÖZATA and Others 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 February 1996 and registered on 14 March 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 Commission’s partial decision of 22 October 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 national s , born in 1945, 1952, 1968, 1958, 1963 and 1959 respectively and living in Antalya . They are represented before the Court by Mr Mehmet Nur Terzi and Mr Kemal Bilgiç , lawyers practising in İzmir , Turkey.

A. The circumstances of the case

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

On 16 November 1995 the first applicant, Mr Güven Özata , and on 21 November 1995 the other applicants were arrested by police officers from the anti-terrorist branch of the Antalya Security Department on suspicion of membership of the PKK.

On 29 November 1995 the Antalya Magistrates’ Court ordered the applicants’ detention on remand.

On 27 December 1995 the Chief Public Prosecutor at the Ä°zmir State Security Court charged the applicants with membership of the PKK, aiding and sheltering militants of the PKK and having been involved in separatist activities against the State.

On 26 June 1997 the İzmir State Security Court acquitted Mr Güven Özata of the charges, but convicted others as charged under Articles 125 and 168 of the Turkish Criminal Code.

B. Relevant domestic law and practice

1. 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.”

Under section 3 of the Prevention of Terrorism Act (Law no. 3713 of 12 April 1991), the offence defined in section 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 ... of the Act are increased by one half.

2. 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.”

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 ... 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 9 and 14 days respectively without being brought before a judge or other officer authorised by law to exercise judicial power.

THE LAW

The applicants complain of the excessive length of their pre-trial detention. 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.”

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 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. However, since the applicants failed to invoke Law no. 466, the application is manifestly ill ‑ founded within the meaning of Article 35 § 3 of the Convention.

The applicants contend in reply 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 pre-trial detention 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 prosecution. The length of pre-trial detention being 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 had already 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 pre-trial detention, 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, ther efore, that the Government’s submission that the applicants failed to exhaust domestic remedies cannot be upheld.

B. Merits

As regards the substance of the applicants’ 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