FIRST SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 37191/97 by Orhan YILDIRIM and Others against Turkey

The European Court of Human Rights (First Section) , sitting on 26 September 2000 as a Chamber composed of

Mrs E. Palm, President , Mr L. Ferrari Bravo, Mr Gaukur Jörundsson, Mr R. Türmen, Mr B. Zupančič, Mr T. Panţîru, Mr R. Maruste, judges ,

and Mr M. O’Boyle, Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 23 June 1997 and registered on 1 August 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 21 October 1998,

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 who are currently held in prison in the Nazilli district of Aydın , Turkey. They are represented before the Court by Mr Mustafa İşeri , a lawyer practising in Izmir .

A. The circumstances of the case

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

Between 17 January and 18 February 1997 police officers from the anti-terrorist branch of the Ä°zmir Security Directorate arrested the applicants on suspicion of membership of the PKK.

On 31 January 1997 the İzmir State Security Court ordered 14 of the applicants’ detention on remand, except Selahattin Güven who was detained on remand on 18 February 1997. The length of the applicants’ pre-trial detention is as follows:

Applicant’s name

Date of arrest

Date of detention on remand

Length of pre-trial detention

1.Orhan Yıldırım

17 January 1997

31 January 1997

15 days

2.ReÅŸit Dayan

18 January1997

31 January 1997

14 days

3.Nasrullah Toraman

18 January 1997

31 January 1997

14 days

4.Osman Aksoy

18 January 1997

31 January 1997

14 days

5.Suphi Tutmaz

17 January 1997

31 January 1997

15 days

6.Binali Gençel

17 January 1997

31 January 1997

15 days

7.Memdullah Demir

19 January 1997

31 January 1997

13 days

8.Süleyman Aksoy

21 January 1997

31 January 1997

11 days

9.Melik Demir

18 January 1997

31 January 1997

14 days

10.Abdullah Turan

17 January 1997

31 January 1997

15 days

11.Abbas Ãœste

18 January 1997

31 January 1997

14 days

12.Abdurrahim Çimen

19 January 1997

31 January 1997

13 days

13.Mirhan Arslan

17 January 1997

31 January 1997

15 days

14.Tahsin Özer

17 January 1997

31 January 1997

15 days

15.Selahattin Güven

14 February 1997

18 February 1997

5 days

On 20 March 1997 the Chief Public Prosecutor filed an indictment with the İzmir State Security Court charging the applicants with membership of the PKK as well as assisting and sheltering its members, contrary to Articles 168 § 2 and 169 of the Turkish Criminal Code.

On an unspecified date the Ä°zmir State Security Court convicted the applicants as charged and sentenced them to different terms of imprisonment. The proceedings are still pending before the Court of Cassation .

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 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 169 of the Turkish Criminal Code provides:

“Any person, who knowing that such an armed gang or organisation is illegal, assists it, harbours its members, provides it with food, weapons and ammunition or clothes or facilitates its operations in any manner whatsoever shall be sentenced to not less than three and not more than five years’ imprisonment...”

Under sections 3 and 4 of the Prevention of Terrorism Act (Law no. 3713 of 12 April 1991), the offences defined in sections 168 and 169 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 168 and 169 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 5 to 15 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 maintain that the length of their pre-trial detention was lawful under domestic law. They allege therefore that they were unable to invoke Law no. 466 since it is applicable 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