FIRST SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Applications nos 29883/96, 29884/96, 29885/96

by Hikmet FİDAN, Ferhan TÜRK, Şeyhmus ÇAĞRO, Şahabettin ÖZARSLANER

against Turkey

The European Court of Human Rights ( First Section) sitting on 18 May 1999 as a Chamber composed of

Present: Formation A

Mr J. Casadevall , President ,

Mr C. Bîrsan ,

Mr Gaukur Jörundsson ,

Mr B. Zupančič ,

Mr T. Pantiru ,

Mr R. Maruste , Judges ,

Mr F. Gölcüklü , ad hoc Judge ,

with 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 1 November 1995 by Hikmet FİDAN, Ferhan TÜRK, Şeyhmus ÇAĞRO, Şahabettin ÖZARSLANER against Turkey and registered on 22 January 1999 under file nos 29883/96, 29884/96, and 29885/96;

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 26 December 1997 and the observations in reply submitted by the applicants on 26 February 1998;

Having deliberated;

Decides as follows:

THE FACTS

The applicant Hikmet Fidan , born in 1956, is resident in İzmir . The applicants Ferhan Türk , born in 1951, Şehmus Çağro , born in 1955, and Şahabettin Özarslaner , born in 1953, are residents in Ankara. All applicants are Turkish citizens. They are represented before the Court by Mr Yusuf Alataş , a lawyer practising in Ankara.

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

A. The particular circumstances of the case

The applicants Hikmet Fidan and Åžahabettin Özarslaner have been the Vice ‑ Presidents and Åžehmus ÇaÄŸro the Deputy Secretary General of the political party, HADEP, since 29 June 1994. The applicant Ferhan Türk , has been the provincial board member of the same political party in Ankara since 31 May 1995.

In 1994 policemen from the Ankara Security Directorate carried out operations against the PKK. They arrested Orhan Çobanöz , Mehmet Ata Zeren , Mehmet Yürümez , Sevtap Veznedaroğlu , Ahmet Başboğa , Ali Akbaş and Feyat Akbaş on suspicion of having been involved in the activities of the PKK. During their interrogations the arrestees gave the names of the applicants. They stated that the applicants had been involved in the illegal activities of the PKK within the political party, HADEP. According to their statements which led to the applicants’ arrest, the applicants, inter alia ,

(a) disseminated separatist propaganda and provided contacts between the PKK and HADEP;

(b) participated in prohibited meetings organised abroad by the PKK;

(c) assisted the PKK in finding new members to fight against the State;

(d) worked as couriers for the PKK;

(e) visited the camps of the PKK, “ Zeli ” in Northern Iraq and “ Urumiye ” and “ Zagros ” in Iran;

(f) participated as delegates in the meetings of the so-called Kürdistan National Assembly.

On 26 April 1995 the applicants Hikmet Fidan , Şehmus Çağro , Şahabettin Özarslaner , and on 27 April 1995 Ferhan Türk , were taken into custody by order of the public prosecutor at the Ankara State Security Court. They were accused of being members of the PKK.

On 28 April 1995 the public prosecutor extended the applicants’ detention in police custody until 4 May 1995 on the ground that further investigations were needed.

On 29 May 1995 the public prosecutor filed a bill of indictment with the Ankara State Security Court accusing the applicants of being members of the PKK. The charges were brought under  section 168 § 2 of the Turkish Criminal Code and section 5 of the Prevention of Terrorism Act (Law no. 3713 of 12 April 1991).

On 4 May 1995, after being held in police custody, the applicants were brought before the Ankara Forensic Medical Doctor to be examined. The forensic doctor drew up a report recording that the applicants bore no trace of ill-treatment.

On the same day the Ankara State Security Court ordered the applicants to be detained on remand.

On 1 August 1995 the applicants appeared before the court, which ordered their release on the same day.

On 19 December 1995 the Ankara State Security Court acquitted the applicants on account of the insufficient evidence against them.

B. Relevant domestic law and practice

i ) 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.”

ii) The Prevention of Terrorism Act (Law no. 3713 of 12 April 1991) :

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.

COMPLAINTS

The applicants complain under Article 5 § 1 of the Convention that there were no grounds for reasonable suspicion that they had committed a criminal offence. In particular, they allege that they were arrested on account of the statements made under duress by Sevtap Veznedaroglu and Orhan Çobanöz at the Security Directorate on 15 July 1994 and 8 December 1994 respectively.

They maintain that there were no grounds for believing that they would abscond since they were the administrators of a legal political party.

The applicants also complain under Article 5 § 3 of the Convention that their detention in police custody without being brought before a judge or other officer authorised by law to exercise judicial power lasted eight days in the case of Ferhan Türk , and nine days in the case of Şahabettin Özarslaner , Hikmet Fidan and Şehmus Çağro .

They finally allege under Article 14 of the Convention that the reasons for their arrest were their Kurdish identity and their affiliation to HADEP, since this party is perceived as the main political party of the Kurds and a tool of the PKK.

PROCEEDINGS BEFORE THE COURT

The applications were introduced on 1 November 1995 and registered on 22 January 1996.

On 2 July 1997, the Commission decided to communicate the applications to the respondent Government.

The Government’s written observations were submitted on 26 December 1997, after an extension of the time-limit fixed for that purpose. The applicants replied on 26 February 1998.

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

1. The applicants complain that at the time of their arrest there were no grounds for reasonable suspicion that they had committed a criminal offence or that they would abscond. They invoke Article 5 § 1 (c) of the Convention, which provides as follows:

“1. 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 a procedure prescribed by law:

...

c. the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so...”

The applicants allege that they were arrested on account of the statements made under duress by Orhan Çobanöz , Mehmet Ata Zeren , Mehmet Yürümez , Sevtap Veznedaroğlu , Ahmet Başboğa , Ali Akbaş and Feyat Akbaş at the Security Directorate.

In reply, the Government maintain that the deprivation of liberty was ordered and carried out by a competent authority in accordance with the requirements of the law. They contend that the statements of the above-mentioned persons incriminating the applicants gave rise to reasonable suspicion of their involvement in the activities of the PKK. They add that, in view of the fact that the applicants were accused of serious crimes, the risk of their absconding required their detention in police custody.

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 applicants were placed in police custody on the orders of the public prosecutor at the Ankara State Security Court, who suspected them of involvement in the illegal activities of the PKK. Following their arrest, the applicants were brought before a judge within between seven and eight 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 public prosecutor, in his indictment filed with the court on 29 May 1995, accused the applicants of membership of the PKK. They were subsequently acquitted of the charges following a trial in court.

Accordingly, the Court considers that the applicants 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.

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

2. The applicants complain that the reasons for their arrest were their Kurdish identity and their affiliation to HADEP, since this is seen as the main Kurdish political party. They invoke Article 14 of the Convention, which provides as follows:

“The enjoyment of the rights and freedoms set forth in this 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 applicants maintain that those who do not agree with the official view of the State on the Kurdish question were subjected to intimidation.

The Government have not addressed these allegations beyond denying the factual basis of the substantive complaints.

The Court has examined the applicants’ allegations in the light of the evidence submitted to it, but considers them unsubstantiated.

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.

3. The applicants complain that their detention in police custody without being brought before a judge or other officer authorised by law to exercise judicial power lasted eight days in the case of Ferhan Türk , and nine days in the case of Şahabettin Özarslaner , Hikmet Fidan and Şehmus Çağro , contrary to Article 5 § 3 of the Convention, which provides as follows:

“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 respondent Government base their first objection on the length of the applicants’ detention in police custody. They submit that the applicants were held in police custody for seven days in the case of Ferhan Türk and eight days in the case of Şahabettin Özarslaner , Hikmet Fidan and Şehmus Çağro between 27 April and 4 May 1995.

The Government maintain that the applicants have 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 applicants have failed to invoke Law No. 466, the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

The applicants contest the Government’s arguments. They state that they could not invoke Law No. 466 as it is applicable only to damage suffered as a result of unlawful detention. They submit that a long period of custody by order of the public prosecutor is authorised under domestic law and accordingly they 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 detention in police custody 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 recalls that, in earlier cases based on similar facts, the Convention organs have 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, therefore, that the Government’s submission that the applicants have failed to exhaust domestic remedies cannot be upheld.

The respondent Government further 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 applicants require that they be detained for a longer period. 

The Government argue that the applicants were arrested by the policemen and held in detention, respectively, for seven and eight days with the authorisation of the public prosecutor and that on the last day of their detention they were 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. 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 applicants dispute these arguments. They argue that the length of their detention in custody was excessive and unreasonable, and contrary to the Convention and to the established case-law of the Convention organs. They refer in this regard to the judgment of the Court in the case of Sakık and Others v. Turkey (judgment of 26 November 1997, Reports of Judgments and Decisions 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.

The applicants maintain that, despite the amendments made to Law No. 2845,  they could still claim to be victims of a violation of Article 5 § 3 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.

For these reasons, the Court, unanimously,

DECLARES ADMISSIBLE , without prejudging the merits, the applicants’ complaints that they were held in police custody for an excessive length of time without being brought before a judge or other officer authorised by law to exercise judicial power;

DECLARES INADMISSIBLE the remainder of the application.

Michael O'Boyle Josep Casadevall Registrar President