FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 29296/95 by Yüksel İĞDELİ against Turkey

The European Court of Human Rights (First Section) , sitting on 30 May 2000 as a Chamber composed of

Mrs W. Thomassen, President ,

Mr L. Ferrari Bravo, Mr Gaukur Jörundsson, Mr C. Bîrsan, Mr J. Casadevall,

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 26 October 1995 and registered on 16 November 1995,

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 1968 and living in Istanbul. He is represented before the Court by Mrs Naciye Kaplan, Mrs Bedia Buran and Mrs Filiz Köstak, lawyers practising in Istanbul.

A. The circumstances of the case

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

On 5 June 1995 police officers from the anti-terrorist branch of the Istanbul Security Directorate arrested the applicant subsequent to the receipt of information that the applicant was an active member of the PKK. The police officers bodily searched the applicant and found, among other things, an explanatory note for the preparation of a kind of explosive called “molotov cocktail”.

On 6 June 1995 the head of the anti-terrorist branch wrote a letter to the Chief Public Prosecutor at the Istanbul State Security Court requesting permission for an extension of the applicant's pre-trial detention until 12 June 1995. He informed the Public Prosecutor that the applicant would be questioned with a view to obtaining the necessary documentation and apprehending the PKK militants with whom the applicant had relations.

On the same day the Public Prosecutor no. 23783 at the State Security Court granted the extension requested.

On 7 June 1995 the police officers questioned the applicant in relation to his involvement in the PKK. The applicant told the police officers in detail about his activities within the organisation.

On 12 June 1995 the Public Prosecutor no. 16429 at the State Security Court questioned the applicant in relation to his actions within the PKK. The applicant denied the allegation that he was a member of the PKK and claimed that he unwillingly had contacts with some militants of the PKK since he was afraid of them. The Public Prosecutor then submitted a petition to the Istanbul State Security Court requesting an order for the applicant's detention on remand.

On the same day, the applicant was brought before the Istanbul State Security Court. Following his questioning, a single judge of the court ordered the applicant's detention on remand, giving as the reasons the “character and nature” of the offence concerned and the “evidence obtained”.

On 23 August 1995 the Chief Public Prosecutor filed an indictment with the Istanbul State Security Court charging the applicant with membership of the PKK. The charges were brought under Article 168 § 2 of the Turkish Criminal Code and Article 5 of Law no. 3713 as well as Article 19 § 2 of Law no. 2918 (Traffic Act).

The criminal proceedings against the applicant are still pending.

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 applicant complains under Article 5 § 3 of the Convention that his pre-trial detention without being brought before a judge or other officer authorised by law to exercise judicial power lasted seven days.

He maintains under Article 5 § 4 of the Convention that Turkish law does not afford any effective remedy by which the lawfulness of his pre-trial detention could be decided speedily.

The applicant submits 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 four days. This period can be extended up to fifteen days in relation to offences falling within the jurisd iction of the State Security Courts. The applicant alleges therefore that two types of custody periods between different types of offences constitute a discriminatory treatment contrary to Article14 of the Convention.

THE LAW

The applicant complains of the length of his pre-trial detention and lack of any effective remedy to challenge the lawfulness of his detention. He invokes Article 5 §§ 3 and 4 as well as Article 14 of the Convention.

A. Government's preliminary objection

The Government submit that the applicant failed to exhaust domestic remedies. They argue that a request for compensation based on Law no. 466 on the compensation of persons unlawfully arrested or detained provides that the applicant has a right to compensation, which he can exercise once his trial is over.

The Government state that, in cases of illegal detention, a request for compensation can be submitted within three months following the final decision of the trial court under the terms of Law no. 466 on compensation payable to persons unlawfully arrested or detained.

Accordingly, they add that, since the applicant failed to invoke Law no. 466, the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

The applicant contests the Government's arguments. He alleges that he could not invoke Law no. 466 since it is applicable only to damage suffered as a result of unlawful detention. He submits that a long period of custody by order of the public prosecutor is authorised under domestic law and accordingly he could not claim compensation.

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 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 had already found that this remedy was ineffective on the grounds, inter alia , that the Turkish judicial authorities to which applicants had 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).

The Court considers, ther efore, that the Government's submission that the applicant failed to exhaust domestic remedies cannot be upheld.

B. Merits

1. Complaints under Article 5 §§ 3 and 4

The applicant complains of breaches of Article 5 §§ 3 and 4 of the Convention, the relevant parts of which provide:

“3. 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.

4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful...”

The Government submit that that under Article 30 of Law no. 3842, persons arrested for an offence triable by the State Security Courts must be brought before a judge within 48 hours at the latest, but that this period was increased to 15 days for collective offences, as was the case here, where the nature of the charges laid against the applicant require that he be detained for a longer period. In this regard, they point out the nature and scale of the terrorist threat in Turkey and particular difficulties in taking action to ward off that threat, which is incomparably more serious and more imminent that the threat posed by other examples of terrorism in member States of the Council of Europe.

The Government also argue that the applicant was arrested by the police officers and held in detention in police custody for seven days with the authorisation of the public prosecutor and that on the last day of his detention he was brought before the judge to be questioned. The Government thus consider that the custodial measure was ordered by a competent authority and was enforced by that authority in accordance with the requirements laid down by law. They conclude that, under domestic law, the national authorities did not in any way exceed the margin of appreciation accorded to governments under the Convention and that the measures in question were not in any way disproportionate.

The respondent Government finally 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 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 applicant alleges that he was kept in police custody for an excessive length of time. He maintains that seven days' pre-trial detention is incompatible with the requirements of Article 5 § 3 of the Convention, bearing in mind the considerations of the Court in the case of Brogan and Others v. the United Kingdom (judgment of 29 November 1988, Series A no. 145-B, pp. 30-35, §§ 55-62). He further submits that his inability to challenge the lawfulness of his pre-trial detention on account of the domestic law is also in breach of Article 5 § 4 of the Convention.

The applicant finally contends that, despite the amendments made to Law no. 3842 he can still claim to be a victim of a violation of Article 5 §§ 3 and 4 of the Convention.

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 applicant complains 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 applicant submits 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 fifteen days in accordance with Law no. 3842. In this respect, the applicant contends that that difference constitutes unlawful discrimination, contrary to Article 14 of the Convention.

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 latter provision provides:

“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 argue that the difficulties to cope with terrorism require a different length of pre-trial detention in comparison with other types of offences. In their opinion, the provisions which provide for the detention periods are foreseeable and are strictly limited to the specific requirements of investigations into terrorist type offences. They, however, submit that the relevant legal framework does not deprive those charged with terrorist type offences of the guarantees under 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 pre-trial detention 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 applicant 's complaints under Article 5 § 3 of the Convention that he was not promptly brought before a judge and under Article 5 § 4 his inability to challenge the lawfulness of his detention;

DECLARES INADMISSIBLE the remainder of the application.

Michael O'Boyle Wilhelmina Thomassen Registrar President