FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 32446/96 by Abdülsamet YAMAN against Turkey

The European Court of Human Rights ( First Section ) sitting on 14 December 1999 as a Chamber composed of

Mr J. Casadevall, President , Mr Gaukur Jörundsson, Mr C. Bîrsan, Mrs W. Thomassen, Mr R. Maruste, Mr B. Zupančič , judges , Mr F. Gölcüklü, ad hoc judge

and Mr M. O’Boyle, Section Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 3 January 1996 by Abdülsamet Yaman against Turkey and registered on 30 July 1996 under file no. 32446/96;

Having regard to the reports provided for in Rule 49 of the Rules of Court;

Having regard to the observations submitted by the respondent Government on 28 July 1997 and the observations in reply submitted by the applicant on 22 September 1997;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, who was born in 1964, is a Turkish national and he is currently detained in the Konya Prison. He was the former provincial leader of the pro-Kurdish political party HADEP (People’s Democracy Party) in Adana .

He is represented before the Court by Mr Jon Rud , a lawyer practising in Oslo (Norway).

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

A. Particular circumstances of the case

The applicant states as follows.

On 3 July 1995 in the city of Adana , the applicant was put into a car and blindfolded by persons apparently working for the Security Directorate. In the car he was subjected to beating and threats such as "if you do not reply to our questions correctly, we will kill you...".  He was driven around for quite some time and, still blindfolded, taken into a building, which he later understood to be the building of the Security Directorate.

In this building, the applicant was stripped naked and put under cold water. He was suspended by the arms onto pipes hanging from the ceiling and made to stand on a chair. Electric cables were attached onto his body, principally to his sexual organs. The chair was then pulled away and he was left in suspension while electric shocks were administered. From time to time the shocks were stopped and his testicles were squeezed. The applicant was interrogated about his work and his connections with the PKK. He was further questioned as to why he had assisted torture victims in appealing to the European Commission of Human Rights.

The applicant was detained in the Security Directorate building for a period of nine days and his family was not informed of his detention. The interrogation under torture continued during this period.

On 11 July 1995 the applicant was examined by the Forensic Medicine Institute's medical expert. The applicant states that, as a result of the torture, his left arm was not functioning, one of his ribs was broken and there were wounds on various parts of his body as a result of the hanging. The forensic medical expert’s report stated the following: “On the right knee of the person and inside both wrists, 4 by 3 cm superficial crust wounds (scabs) were identified and the person described numbness in his left arm and a feeling of pain in the right of his chest.”

The same day the applicant was brought before the public prosecutor and the Adana Magistrate’s Court in Criminal Matters. Before the court, the applicant denied his statements that had been taken at the Security Directorate. The same day he was placed in detention on remand. On the way from the court to the prison he was beaten up by the policemen using rifle butts, boots and truncheons.

On 12 July 1995 the applicant was brought to the sick bay of the prison and examined by Dr. H.Ö., who advised him to obtain permission from the prison authorities to be transferred to a hospital for treatment.

On 12, 13 and 14 July 1995 the applicant requested permission for treatment at the hospital. He further requested the prison administration and the Public Prosecutor to provide a report from the Forensic Medicine Institute. However, no action was taken.

Furthermore, the prison administration did not permit the applicant to see a doctor from the Turkish Human Rights Foundation, who had come to the prison to determine the applicant's situation.

The Government submit as follows.

The Government maintain that the applicant was arrested on 3 July 1995 in connection with an operation conducted by the Adana Security Directorate against the PKK. The applicant’s name had been given by the PKK’s political supervisor for the Adana region. Among the documents seized during that operation, two were established by the forensic laboratory to have been hand-written by the applicant. The Government submit that the applicant was brought before the public prosecutor and the investigating judge on 11 July 1995. On the same day he was placed in detention on remand. According to the Government, it was established during the evaluation of the evidence that the applicant had personally participated in the preparation of the documents seized during the operation.

Following the Adana Public Prosecutor’s decision of non-jurisdiction, the case-file was transferred to the Konya State Security Court Public Prosecutor, who commenced criminal proceedings against the applicant along with 27 defendants.

On 19 September 1995, in the first hearing before the Konya State Security Court, the applicant denied all the charges against him. He further refused his statement taken by the police alleging that it had been taken under torture. The applicant referred to the medical report prepared on 11 July 1995 by the Forensic Institute Adana Branch and claimed that these findings proved that he had been tortured.

In the meantime, on 20 January [July] 1995, the applicant filed a complaint with the Adana Public Prosecutor and alleged that he had been tortured while he was held in police custody. The Public Prosecutor took oral statements from the applicant and the two police officers H. S. and İ.Y., who had been working in the Anti-terrorism Branch of Adana Security Directorate at the time of the events. The two police officers denied the allegations and stated that the applicant had been interrogated in the light of the evidence before them. The public prosecutor also requested a copy of the prison doctor’s registry concerning the applicant’s medical examination. On 20 December 1995 the public prosecutor gave a decision of non-prosecution, as there was no sufficient evidence to file a criminal complaint against the police officers.

On 5 January 1998 the Government stated that in 1997 the Adana Public Prosecutor  recommenced an investigation into the applicant’s allegations about torture.

The applicant is currently detained in the Konya prison and the criminal proceedings against him are still pending before the Konya State Security Court.

B. Relevant domestic law and practice

Constitutional provisions:

Article 17 of the Turkish Constitution provides:

“...No one shall be subjected to torture or ill-treatment; no one shall be subjected to              any penalty or treatment incompatible with human dignity....”

Article 125 of the Turkish Constitution provides as follows.

“All acts or decisions of the Administration are subject to judicial review...

The Administration shall be liable for damage caused by its own acts and measures.”

Criminal law and procedure:

The Turkish Criminal Code makes it a criminal offence to subject someone to torture or ill-treatment (Article 243 in respect of torture and Article 245 in respect of ill-treatment, inflicted by civil servants).

In general, in respect of criminal offences, complaints may be lodged, pursuant to Articles 151 and 153 of the Code of Criminal Procedure, with the local public prosecutor or the local administrative authorities. The public prosecutor and the police have a duty to investigate crimes reported to them, the former deciding whether a              prosecution should be initiated, pursuant to Article 148 of the Code of Criminal Procedure. A complainant may appeal against the decision not to institute criminal              proceedings.

Under section 128 of the Code of Criminal Procedure, an arrested person must be brought before a judge within twenty four hours or, where the offence has been committed by more than one person, within four days.

Section 30 of Law No. 3842 published on 1 December 1992 provided that, with regard to offences within the jurisdiction of the state security courts - including those mentioned in paragraph 29 above - any arrested person had to 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. In provinces where a state of emergency had been declared, these time-limits could be extended to four days and thirty days respectively (by Act No. 4229, which was promulgated on 6 March 1997 detentions periods have been amended). 

A state of emergency was in force in the following provinces: Batman, Bingöl , Bitlis , Diyarbakır , Hakkari , Mardin , Siirt , Şırnak , Tunceli and Van.

Civil action for damages:

Under the Turkish Code of Obligations, anyone who suffers damage as a result of an illegal act or tort may bring a civil action seeking reparation for pecuniary damage (Articles 41-46) and non-pecuniary damage (Article 47). The civil courts are not bound by either the findings or the verdict of the criminal court of the issue of the defendant’s guilt (Article 53).

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 released 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 of violations of Articles 3, 5, 6, 10, 11, 13, 14, 18 and 25 (now 34) of the Convention.

As to Article 3 , the applicant alleges that during his detention which lasted nine days at the Security Directorate of Adana , he was physically and mentally subjected to torture. He claims that he was stripped naked and put under cold water. He further complains that he was suspended by the arms, given electric shocks and beaten during his interrogation. He states that his request to receive treatment for injury resulting from torture was rejected without any written reply or justification.

As to Article 5 , the applicant alleges that he was unlawfully arrested and detained (para.1). He alleges that he was subjected to arrest and torture, because he had assisted torture victims in filing complaints with the Court. He also states that he was not informed of the reasons for his arrest or of any formal charges against him (para.2) and he was not permitted to take proceedings to determine the lawfulness of his detention (para.4).  He further complains that nine days of police custody was not strictly required by the exigencies of the situation (para. 3). The applicant also maintains that he was not granted the right to compensation (para. 5).

As to Article 6 , the applicant complains that he has been deprived of his right to have his civil rights determined in a fair and public hearing. He also claims that because torture is systematically applied and condoned by the authorities, any claim that he might have for compensation is illusory. The applicant further maintains that the failure to investigate and bring criminal proceedings against those guilty of the torture also indicates that his civil claim will not receive a fair treatment by the courts.

As to Article 10 , the applicant complains that he was arrested and detained in order to dissuade him from continuing his political activities, which included the oral and written dissemination of his party’s (HADEP) political objectives.

As to Article 11 , the applicant submits that another purpose of the treatment he was subjected to was to make him refrain from further activities of HADEP. He complains further that he has been deprived of his right to freedom of association, in this case the right to be an official of HADEP, without fear of persecution by public authorities.

As to Article 13 , the applicant alleges that he has no effective remedies in respect of the matters complained of.

As to Article 14 , he maintains that he was detained and tortured because of his ethnic origin and his affiliation to HADEP, since HADEP is perceived as the main political party for the Kurds and as a tool of the PKK.

As to Article 18 , the applicant submits that the Respondent State is seeking to restrict him in the exercise of his rights and freedoms, beyond the purpose for which the restrictions in the Convention have been prescribed.

As to Article 25 (now 34) , the applicant alleges that the torture to which he was subjected to was inflicted because he had assisted clients in bringing cases before the Commission.

PROCEDURE

The application was introduced on 3 January 1996 and registered on 30 July 1996.

On 6 March 1997 the European Commission of Human Rights decided to communicate the application to the respondent Government.

The Government’s written observations were submitted on 28 July 1997, after an extension of the time-limit fixed for that purpose. The applicant replied on 22 September 1997.

On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol.

THE LAW

The applicant complains of ill-treatment in police custody. He invokes Article 3 (prohibition of inhuman and degrading treatment), Article 5 (the right to liberty and security), Article 6 (the right of access to court), Article 10 (freedom of expression), Article 11 (the freedom of association), Article 13 (the right to an effective remedy), Article 14 (prohibition on discrimination) and Article 18 (the limitation on use of restrictions on rights) of the Convention.

Exhaustion of domestic remedies:

The Government maintain that the application is inadmissible as the applicant has failed to exhaust domestic remedies, within the meaning of Article 35 of the Convention. In this regard, they rely on the applicant’s failure to avail himself of the various civil and administrative remedies in Turkish law.

As to Article 3 of the Convention

The Government assert that the applicant could have sought reparation for the harm he allegedly suffered by instituting a civil law action in the civil law or administrative courts. In order to demonstrate the effectiveness of the compensation proceedings before the civil courts, the Government refer to a decision of the Court of Cassation that they supplied to the Court.

The applicant replied that he should be considered as absolved from invoking any of the remedies referred to by the Government since these remedies cannot be regarded as effective in his situation.

As regards the civil and administrative remedies referred to by the Government, the Court points out that in the OÄŸur v. Turkey judgment of 20 May 1999, (Reports 1999-  , no. .. , p. ..., § 66) , it held that the applicant was not required to bring the civil and the administrative proceedings as those relied on by the Government in the instant case. It noted first of all that, a plaintiff in a civil action for redress, concerning damage sustained through illegal acts or patently unlawful conduct on the part of State agents had, in addition to establishing a casual link between the tort and the damage he had sustained, to identify the person believed to have committed the tort. In the instant case, however, those responsible for acts complained of by the applicant remained unknown.   

Secondly, as regards the administrative-law action provided in Article 125 of the Constitution, the Court noted that this was a remedy based on the strict liability of the State, in particular for the illegal acts of its agents, whose identification was not, by definition, a prerequisite to bringing such an action. However, where an individual raises an arguable claim that he has been seriously ill-treated by the police or other such agents of the state unlawfully and in breach of Article 3, that provision, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms in the Convention”, requires by implication that there should be an effective official investigation. This obligation, as with that under Article 2, should be capable of leading to the identification and punishment of those responsible. If this were not the case, the general legal prohibition of torture and inhuman and degrading treatment and punishment, despite its fundamental importance would be ineffective in practice and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity (see Assenov v. Bulgaria, judgment of 28 October 1998, Reports, 1998-VIII, No. 96, p. 3290, § 102). The Court sees no reason to depart from those conclusions in the instant case and consequently it concludes that the applicant was not required to bring the civil and administrative proceedings suggested by the Government.

The Court considers, in the light of the foregoing, that the Government’s preliminary objections in this respect cannot be upheld.

As to Article 5 of the Convention:

The Government point out to the pending criminal proceedings against the applicant before the Konya State Security Court. They maintain that if at the end of these proceedings the applicant is acquitted of the charges against him, he may request compensation using the procedure laid down in Law no. 466 for those who had been unlawfully deprived of their liberty.

The applicant contends that this remedy is ineffective and inadequate in his case because damages under the said law are only awarded in respect of detention where the case has been determined.              The applicant maintains under Article 5 § 5 of the Convention that he has no right to compensation for the excessive length of his police custody as his detention was lawful according to domestic law.

The Court recalls that, in earlier cases based on similar facts, the Convention organs, as part of their consideration of the question whether the domestic remedies had been exhausted, noted that there was no adequate and effective means of testing the lawfulness of detention in police custody against Article 5 of the Convention in the proceedings before a State Security Court ( Sakık and Others v. Turkey, judgment of 26 November 1997, Reports 1997-VII, p. 2626, § 60; Commission’s Report of 23 May 1996, p. 2637, § 73).

The Court considers that this finding can be applied to the present case as at the material time the length of detention in police custody could be extended to 15 days by order of the prosecution in the proceedings before the State Security Courts. The length of detention in police custody being challenged by the applicant did not therefore exceed the maximum time-limit provided for in the domestic law. The Court notes that according to Law No. 466, cited by the Government, an action against the authorities can only be brought for damage suffered as a result of unlawful deprivation of liberty. Consequently, since the applicant’s detention was neither unlawful nor unjustified under Turkish law, he has no right to compensation under the provisions of Law No. 466.

The Court considers, in the light of the foregoing, that the Government's submission that the applicant has failed to exhaust domestic remedies cannot be upheld.

As to the substance of the complaints:

1. The applicant alleges that during his police custody that lasted nine days at the Security Directorate of Adana , he was physically and mentally subjected to torture. He claims that he was stripped naked and put under cold water. He further complains that he was suspended by the arms, given electric shocks and beaten during his interrogation. He states that his request to receive treatment for injury resulting from torture was rejected without any written reply or justification.

The Government state that the injuries that were observed on the applicant’s body does not suffice to prove that the applicant had been tortured whilst he was in custody. They further submit that these allegations are insincere and is part of a scenario applied by the terrorist organisation to dishonour the active forces struggling against terrorism. Accordingly, the Government conclude that there exists no violation of Article 3 of the Convention.

The applicant maintains his account of events.

In the light of the Court’s established case-law and the parties’ submissions, the Court considers that this part of the application 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. Consequently, this complaint cannot be declared manifestly ill-founded within the meaning of Article 35 of the Convention. No other grounds for declaring it inadmissible have been established.

2. The applicant firstly alleges under Article 5 of the Convention that he was unlawfully arrested. He further invokes that he was subjected to arrest because he had assisted torture victims in filing complaints with the Court.

The Government note that the applicant was arrested in connection with an operation, which was conducted by the Adana Security Directorate against the activities of the PKK.  The applicant’s name was given by the PKK.’s political supervisor for the Adana region. Among the documents seized during that operation, two were established by the forensic laboratory to have been hand-written by the applicant. Accordingly, the Government claim that they had reasonable suspicion to arrest the applicant. 

The applicant does not reply to this point.

The Court recalls that reasonable suspicion as provided for in this provision of the Convention does not mean that the suspect’s guilt must be established and proved at the time of the arrest (see, for example, Eur. Court H.R., Brogan and Others v. the United Kingdom judgment of 29 November 1988, Series A no. 145-B, p. 29, § 51).

The object of questioning during detention under sub-paragraph (c) of Article 5 § 1 is to further the criminal investigation by way of confirming or dispelling the concrete suspicion grounding the arrest. Thus facts which raise a suspicion need not be of the same level as those necessary to justify a conviction or even the bringing of a charge, which comes at the next stage of the process of criminal investigation (see, inter alia , Eur. Court H.R., Murray v. the United Kingdom judgment of 28 October 1994, Series A no. 300-A, p. 27, § 55).

However, for there to be reasonable suspicion there must be facts or information which would satisfy an objective observer that the person concerned may have committed an offence (see Eur. Court H.R., Fox, Campbell and Hartley v. the United Kingdom judgment of 30 August 1990, Series A no. 182, p. 16, § 32).

In the instant case, the applicant was placed in police custody on suspicion of involvement in the illegal activities of the PKK. Following his arrest, the applicant was brought before a judge within nine days, that is, within the time-limit laid down in Turkish legislation on the procedure to be followed in criminal proceedings before State Security Courts for offences carried out by persons acting in concert. The same day the applicant was placed in detention on remand and subsequently the Konya Public Prosecutor instituted criminal proceedings against the applicant for being involved in the activities of the PKK.

Accordingly, the Court considers that the applicant can be considered as having been arrested and detained on the basis of “reasonable suspicion” of having committed a criminal offence within the meaning of Article 5 § 1 (c) of the Convention. The Court further observes that the length of the applicant’s detention in police custody did not exceed the maximum time-limit provided for in the domestic law.

In the light of the foregoing, this part of the application must be rejected for being manifestly ill-founded within the meaning of Article 35 of the Convention.

3 . The applicant also maintains under Article 5 § 2 of the Convention that he was not informed of the reasons for his arrest or of any formal charges against him.

The Court notes that when the policemen arrested the applicant, he was questioned mainly about his link and suspected activities with the PKK. Therefore, the applicant was aware of the matter at least in broad terms. Bearing all this in mind, the Court finds that the facts of the case do not disclose any appearance of a violation of Article 5 § 2 of the Convention ( mutandis mutandis No.8828/79, Dec. 5.10. 1982, D.R. 30 p. 93).

It follows that this part of the application must also be dismissed as being manifestly ill-founded within the meaning of Article 35 of the Convention.

4. The applicant also complains under Article 5 § 3 of the Convention that he was kept in police custody for nine days without being brought before a judge.

The respondent Government base their first objection on Article 15 of the Convention. They recall their derogation of 5 May 1992, with regard to the matters complained of under Article 5 of the Convention. They argue that it is absolutely essential that they derogate from the procedural guarantees governing the detention of persons belonging to terrorist armed groups and that, on the facts, it is impossible to provide court supervision in accordance with Article 5 of the Convention owing to the difficulties inherent in investigating and suppressing terrorist criminal activities.

             The Government consider that the measures taken against the applicant are, in keeping with the national authorities' concern to fight terrorism, under the legislation pertaining to states of emergency. They observe in this respect that the applicant's arrest was based on the existence of reasonable grounds for suspecting him of having committed an offence.

             As regards the length of the applicant’s police custody, the Government observe 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 time.

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. 2845. 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 the 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 disputes these arguments. He argues that the length of his detention in custody was excessive and unreasonable and contrary to the Convention and to the established case-law of the Convention organs. He refers in this regard to the judgment of the Court in the case of Sakık and Others v. Turkey (judgment of 26 November 1997, Reports 1997-VII) according to which detention in police custody which lasts more than four days without judicial control falls outside the strict time constraints as laid down by Article 5 § 3 of the Convention.

In the light of the Court’s established case-law and the parties’ submissions, the Court considers that this part of the application 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. Consequently, this complaint cannot be declared manifestly ill-founded within the meaning of Article 35 of the Convention. No other grounds for declaring it inadmissible have been established.

5.              The applicant maintains under Article 5 § 4 of the Convention that there are no remedies in domestic law to challenge the lawfulness of his detention in police custody. He affirms that the domestic law itself is contrary to the Convention.

             The applicant further submits under Article 5 § 5 of the Convention that he has no right to compensation for the excessive length of his police custody as his detention was lawful according to domestic law.

             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.

They add that, since the applicant has failed to invoke Law No. 466, the application is manifestly ill-founded.

             The applicant disputes the Government's arguments. He recalls that his complaint relates to the length of his police custody and its unlawful nature. He submits that a long period of custody by order of the Public Prosecutor is authorised under domestic law and accordingly there could be no claim for compensation in this respect.

In the light of the Court’s established case-law and the parties’ submissions, the Court considers that this part of the application 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. Consequently, this complaint cannot be declared manifestly ill-founded within the meaning of Article 35 of the Convention. No other grounds for declaring it inadmissible have been established.

6. The applicant further alleges under Article 6 of the Convention that he has been deprived of his right to have his civil rights determined in a fair and public hearing. He also claims that because torture is systematically applied and condoned by the authorities, any claim that he might have for compensation is illusory. The applicant further maintains that the failure to investigate and bring criminal proceedings against those guilty of the torture also indicates that his civil claim will not receive a fair treatment by the courts. The applicant also complains under Article 13 that he has no effective remedies in respect of the matters complained of.

The Government maintain that there are several effective domestic remedies at the applicant’s disposal. They argue that domestic criminal, civil and administrative laws provide the applicant with adequate means of redress in respect of his complaints.

The Court recalls that Article 6 § 1 embodies the “right to a court”, of which the right of access, that is, the right to institute proceedings before a court in civil matters, constitutes one aspect (see, for example, the Aydın v. Turkey judgment of 25 September 1997, Reports 1997 - VI, p. 1894, § 99). Furthermore, Article 6 § 1 applies to a civil claim for compensation in respect of ill-treatment allegedly committed by State officials (see, for example, the Aksoy judgment of 18 December 1996, Reports 1996-VI, no. 26, p. 2285, § 92).

In the instant case, the Court observes that the applicant has never instituted proceedings before either the civil or administrative courts to seek compensation in respect of the suffering to which he was subjected in custody.

It appears to the Court that the essence of the applicant’s complaint under Article 6 § 1 of the Convention is the failure of the public prosecutor to conduct an effective investigation, which, if not giving rise to a prosecution, at the very least would prove that he had suffered harm while in custody, thus enhancing the prospects of success of his claim for compensation.

The Court recalls that in the case of Aksoy v. Turkey, cited above, it considered that since the applicant had not actually brought a civil claim for damage, it was more appropriate to examine this complaint in relation to the more general obligations on States under Article 13 to provide an effective remedy in respect of violations of the Convention. The Court, noting that the nature of the complaint under Article 6 § 1 of the Convention in the present case is comparable to the complaint in the Aksoy case, finds that there are no reasons to reach a different conclusion.

The Court considers therefore that it is appropriate to examine this complaint in relation to the general obligation on States under Article 13 to provide an effective remedy in respect of violations of the Convention.

In the light of the Court’s established case-law and the parties’ submissions, the Court considers that this part of the application 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. Consequently, this complaint cannot be declared manifestly ill-founded within the meaning of Article 35 of the Convention. No other grounds for declaring it inadmissible have been established.

7. The applicant also submits that he was arrested and detained in order to dissuade him from continuing his political activities, which included the oral and written dissemination of the political objectives of his party (HADEP). He also maintains that another purpose of the treatment he was subjected to was to make him refrain from further activities of HADEP. He complains further that he has been deprived of his right to freedom of association, in this case the right to be an official of HADEP, without fear of persecution by public authorities. In this respect he invokes Articles 10 and 11 of the Convention.

The Court first notes that the applicant was arrested for collaborating with the PKK. It follows that he cannot be considered to have been ill-treated or detained merely for his opinions. In this respect, his complaint is therefore unsupported by the facts of the case.

Consequently, this part of the application is manifestly ill-founded within the meaning of Article 35 of the Convention.

8. As to Article 14, the applicant maintains that he was detained and tortured because of his ethnic origin and his affiliation to HADEP, since HADEP is perceived as the main political party for the Kurds and as a tool of the PKK. As to Article 18, he further submits that the Respondent State is seeking to restrict him in the exercise of his rights and freedoms, beyond the purpose for which the restrictions in the Convention have been prescribed.

In the light of the Court’s established case-law and the parties’ submissions, the Court considers that this part of the application 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. Consequently, this complaint cannot be declared manifestly ill-founded within the meaning of Article 35 of the Convention. No other grounds for declaring it inadmissible have been established.

9. T he applicant alleges that the torture to which he was subjected to was inflicted because he had assisted clients in bringing cases before the Commission. In this respect, he invokes Article 34 (former Article 25) of the Convention.

The Court notes that the applicant has not substantiated his complaint as regards an interference with his right of individual petition. Therefore, the Court considers that the applicant’s complaints do not disclose any appearance of a violation of this provision.

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

For these reasons, the Court, unanimously,

DECLARES INADMISSIBLE the applicant’s complaints as to the lawfulness of his arrest; the failure of authorities to inform him about the reasons of his arrest and his right to freedom of expression and association, and alleged interference with the effective exercise of his individual application.

DECLARES ADMISSIBLE , the remainder of the application.

             Michael O’Boyle Josep Casadevall Registrar President