CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 11 octobre 1991

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                         AS TO THE ADMISSIBILITY OF                         Applications Nos. 16311/90, 16312/90 and 16313/90                       by N.H., G.H., R.A.                       against Turkey           The European Commission of Human Rights sitting in private on 11 October 1991, the following members being present:                 MM. C.A. NØRGAARD, President                   J.A. FROWEIN                   S. TRECHSEL                   F. ERMACORA                   G. SPERDUTI                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER                   H.G. SCHERMERS                   H. DANELIUS              Mrs.   G. H. THUNE              Sir   Basil HALL               Mr.   C.L. ROZAKIS              Mrs.   J. LIDDY              MM.   L. LOUCAIDES                   A.V. ALMEIDA RIBEIRO                   M.P. PELLONPÄÄ                Mr.   H.C. KRÜGER, Secretary to the Commission           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the applications introduced on 9 November 1989 by N.H., G.H. and R.A. against Turkey and registered on 16 March 1990 under file No. 16311/90, file No. 16312/90 and file No. 16313/90 respectively;           Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;           Having regard to the written observations submitted by the respondent Government on 26 October 1990 and the observations in reply submitted by the applicants on 18 January 1991;           Having regard to the oral observations of the parties presented at the hearing of 11 October 1991;           Having deliberated;           Decides as follows:   THE FACTS           The facts, as submitted by the parties, may be summarised as follows:           The first applicant, N.H., a Turkish national born in 1953, is resident in Izmir.   She is a doctor.           The second applicant, G.H., a Turkish national, born in 1954, is the first applicant's husband and resident in Izmir.   He is a journalist.           The third applicant, R. A., a Turkish national born in 1947, lives in Izmir.   He is an accountant.           In the proceedings before the Commission the applicants are represented by Mrs.   Sibel Bilge Uslu and Mr.   H. Ibrahim Uslu, lawyers practising in Izmir.           On 7 September 1987 the applicants were taken into custody at the Izmir Security Department by the Izmir police.   They were accused of being members of the Communist Party of Turkey.   The first applicant was also accused of being a member of the Communist Party's regional executive.   The applicants' membership of the Communist Party had allegedly been revealed during the interrogation of other detainees who were accused of the same offence.           The applicants were questioned by the police.   They were held incommunicado without access to their lawyers or families until 20 September 1987.   On that day they were brought before the Public Prosecutor and taken back during the evening to the Security Department.           On 21 September 1987 they were taken before a judge for the first time, charged and remanded in custody.           In an indictment dated 28 September 1987, the Public Prosecutor at the Izmir Security Court charged the applicants with being members of an association aiming at the domination of a particular social class.   He requested a sentence of between five and eight years' imprisonment under Article 141 para. 5 of the Turkish Criminal Code.   According to the indictment:   -        the first applicant had denied the charges against her. However, having been caught redhanded while carrying a suitcase containing the party's working papers, two co-accused, A.U. and S.K., had declared that she was a member of the Communist Party. Moreover, an organisational chart of the party, prepared by the applicant, had been found in the house of another accused person who had stated that he had received from the applicant a suitcase containing the party's working papers;   -        the second applicant had admitted the charges against him to the police while he had denied them before the Public Prosecutor. Moreover, two co-accused had stated that the second applicant was collaborating with the Communist Party.   He was a member of the Turkish Workers' Party, working for the "Union of the Left" and had transmitted to his wife, the first applicant, two reports entitled "The relationship between the working class and intellectuals" and "The Proceedings of the Party Conference";   -        the third applicant had admitted the charges against him to the police and the Public Prosecutor.   Two other accused who had been arrested, A.U. and H.Ö, had also admitted that he was a member of the Communist Party.   According to a handwriting expert one of the handwritten reports found in the suitcase carried by A.U. and S.K. belonged to this applicant.           In the proceedings before the Izmir Security Court, one of the co-accused, A.U., stated that he had denounced the first applicant and the third applicant under torture during the fourteen days of police custody.   He had maintained his statement before the investigating judge who had threatened to send him back to the police headquarters.           Another co-accused, S.K., also stated that she had been tortured while in police custody and that was why she had confessed to the offences allegedly committed as the accomplice of the first applicant.   During the hearing before the Court S.K. retracted the statements she had made to the police concerning the two applicants. Another co-accused, H.Ö., also retracted his statements concerning the third applicant.   He declared that he had made them under police pressure.           In the proceedings before the State Security Court the applicants and the other accused stated that they had been subjected to torture and ill-treatment during their police custody.   They alleged that this was why they had confessed and denounced the others.           The applicants' lawyers complained that the preliminary investigation had been conducted in the absence of the defence and that their clients had made their statements to the police under torture.   They invoked the provisions of the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment and requested that the Court remove from the file the applicants' statements to the police.           The applicants' lawyers also stated that the Public Prosecutor did not carry out the investigation himself.   The political section of the Izmir police did not inform the Public Prosecutor about the applicants' arrest until seven days later.   While the drafting of the applicants' statements was terminated on the eighth day of the police custody, the police waited five more days before bringing them before the Public Prosecutor in order to let the traces of torture disappear in the meantime.   The delay of seven days before informing the Public Prosecutor and the delay of five days before bringing the applicants before the Public Prosecutor after having obtained their statements made their detention unlawful and constituted an offence under Turkish law.           The applicants' lawyers submitted that the offence under Article 141 of the Turkish Criminal Code had been introduced into Turkish law in 1936 and was an adaptation of the Italian Code of State Security which had been drawn up during the time of Mussolini.   After the amendments to this Article on 16 July 1938, which removed the expression "by force", this offence was constituted solely by adherence to a particular opinion.           In a judgment dated 29 November 1988 the Izmir State Security Court sentenced the applicants to four years and two months' imprisonment.   The Court stated that it had taken into account the statements made to the police only in so far as they had been confirmed by other material evidence.   It observed that the provisions of the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment were not directly applicable by the national courts as the Turkish legislator had not yet amended domestic law in accordance with the provisions of that Convention.   The Court further noted that Article 141 of the Turkish Criminal Code was still in force and that the Constitutional Court had not held this Article to be unconstitutional or contrary to freedom of thought.   The Court found that the Communist Party of Turkey was an association of the type defined in that Article and membership of the Communist Party of Turkey was sufficient evidence to show that the offence had been committed, even if the defendant was not guilty of any act of violence.           On 10 May 1989 the Court of Cassation upheld this judgment, ruling that the trial court had rejected the allegations of the defence for cogent reasons and that examination of the file did not disclose any error in the contested judgment.           The applicants were conditionally released on 29 November (R. Açik) and 7 December 1988 (N. and G. Hazar) respectively.   COMPLAINTS           The applicants allege violations of Article 3, Article 5 paras. 1 (a), (c), 3 and 4, Article 6 paras. 1, 3 (a), 3 (b) and 3 (d) and Articles 9, 10, 11 and 14 of the Convention taken alone or in combination with the other Articles.   1)       Under Article 3 the applicants claim that they were subjected to torture and ill-treatment by the Izmir police while held incommunicado in police custody.           The first applicant complains that she was blindfolded from the first day of her custody and that for nine days she had to stand up almost without food or drink and that on the ninth day of her custody she started having hallucinations.   For the whole of that time she was held in total isolation without access to her lawyer or her family. She also complains about police pressure to make her confess to the charges against her and give information about her activities in the Communist Party and her contacts with other members.           The second applicant also alleges that he was blindfolded from the first day of his custody in isolation.   He complains that he was beaten, deprived of food and drink, sprayed with cold water and subjected to electrical shocks.   He claims to have confessed to all the charges against him and his wife because he could not stand the torture inflicted on him.           The third applicant also alleges that he was blindfolded from the first day of his custody in isolation.   He complains that he was left standing for long periods with little food or drink and that he was beaten on the soles of his feet, suspended from the ceiling, subjected to electrical shocks and sprayed with cold water.   He alleges that he was under police pressure to confess to the charges against him and to give information about his activities and relations within the organisation.   2)       Under Article 5 of the Convention, the applicants allege violations of:   -        paras. 1 (a) and 1 (c) in that they were not kept in police custody so that they could be brought before the judicial authorities or because there were reasonable suspicions against them but with the purpose of extracting information and confessions from them by force. During their first seven days in custody the police interrogated the applicants without informing the Public Prosecutor of their arrest. Moreover, in spite of the fact that their statements had already been taken down, the police officers kept them unlawfully in custody five more days before bringing them before the legal authorities in order to let the traces of torture disappear in the meantime.   After appearing before the Public Prosecutor and making new statements, they were taken back to the police headquarters where they spent the night in police custody;   -        para. 3 in that they were kept in police custody for fourteen days without being brought before a judge and in that they were interrogated under pressure;   -        paras. 1 and 3 in that the length of their detention on remand (one year, 2 months and 22 days) exceeded a reasonable time.   They observe that the State Security Court, a special court, was set up to speed up the procedure;   -        para. 4 in that Turkish law does not afford any effective remedy by which the lawfulness of their police custody could be decided speedily by a Court.   They claim that they were deprived of any possibility of contact with their lawyers.   3)       Under Article 6 para. 1 of the Convention the applicants submit that their case was not heard by an independent and impartial tribunal.   The members of the State Security Court are appointed by the High Council of Judges and Prosecutors.   The President of this Council is the Minister of Justice and two other members also hold office in the Ministry of Justice.   One of the three members of the State Security Court is a military judge responsible to his military superiors.   The State Security Courts are extraordinary jurisdictions dealing with political offences.   4)       Furthermore, the applicants submit under Article 6 para. 1 of the Convention that their trial was unfair in that the State Security Court mainly took into account in its judgment the statements made by them and their co-accused to the police under torture.   5)       The applicants further allege violations of:   -        Article 6 para. 3 (a) of the Convention in that, while in police custody, they were not informed of the precise nature and cause of the charges against them.   They were kept in police custody with the sole purpose of having confessions and information extracted from them about their co-accused;   -        their right under Article 6 para. 3 (b) of the Convention to have adequate time and facilities for the preparation of their defence while in police custody.   They were blindfolded for the whole of this period and were deprived of any possibility of contact with their lawyers;   -        Article 6 para. 3 (c) of the Convention in that during their interrogation by the police they were refused the assistance of their lawyers.   However, the evidence on which the indictment was based and especially the applicants' confessions were obtained during their police custody;   -        Article 6 para. 3 (d) of the Convention in that they could not obtain the examination of the police officers as witnesses before the Court.   The hearing of these witnesses who had carried out the enquiries about the documents found in a suitcase could have proved that they were not involved in this case.   6)       Finally, the applicants allege violations of Articles 9, 10 and 11 taken alone or in conjunction with Article 14 of the Convention in that they were sentenced to four years and two months' imprisonment merely for being members of the Communist Party of Turkey.     PROCEEDINGS           The applications were introduced on 9 November 1989 and registered on 16 March 1990.           On 13 July 1990 the Commission examined the applications. Pursuant to Rule 42 para. 2 (b), which has since become Rule 48 para. 2 (b) of its Rules of Procedure, it decided to give notice of the applications to the respondent Government and to invite them to present their written observations on the admissibility and merits of the complaints under Articles 3, 6, 9, 10, 11 and 14 of the Convention.           The Government submitted their observations on the admissibility of the applications on 26 October 1990.   The applicants' observations in reply were received on 18 January 1991 after an extension of the time-limit.           On 28 May 1991 the Commission decided to invite the parties to a hearing on the admissibility and merits of the applications.           The hearing took place on 11 October 1991.   The parties were represented as follows:   For the Government   -        Mr.   Münci ÖZMEN                 Legal Adviser at the Ministry of                                        Foreign Affairs, acting Agent -        Professor Heribert GOLSONG      Counsel   -        Mrs.   Deniz AKCAY                Deputy Permanent Representative   -        Mr.   Cenk Alp DURAK              Judge at the Directorate General                                        of Criminal Affairs at the                                        Ministry of Justice, Counsel   For the applicants   -        Mrs.   Sibel Bilge USLU           of the Izmir Bar     THE LAW   I.       Article 3 (Art. 3) of the Convention           The applicants allege violations of Article 3 (Art. 3) of the Convention in that they were subjected to torture and inhuman and degrading treatment while held incommunicado in police custody at the Izmir Security Department.   Article 3 (Art. 3) of the Convention reads as follows :           "No one shall be subjected to torture or to inhuman or         degrading treatment or punishment."   (i)      Exhaustion of domestic remedies           The Commission will consider these complaints in their two branches : a) as regards allegations of specific acts of ill-treatment, and b) as regards detention incommunicado as such.   a)       The respondent Government argue that the applicants failed to exhaust the domestic remedies available to them under Turkish law, as required by Article 26 (Art. 26) of the Convention, in that they did not file a complaint to the competent Public Prosecutor in order to obtain an investigation of their allegations by the Turkish authorities.           The applicants consider that they have satisfied the condition laid down in Article 26 (Art. 26) in that, in the course of the proceedings before the State Security Court, they complained of the ill-treatment to which they had been subjected during the police custody.   They had informed the Public Prosecutor of this treatment before the indictment was read out and they subsequently submitted a detailed report on their conditions of detention while in police custody.   Moreover, they requested that the statements they made in the course of the police custody be removed from their files.           The Government consider that the course of action chosen by the applicants was not sufficient for the purpose of Article 26 (Art. 26), since it could not lead to redress of the situation complained of.   Neither the Public Prosecutor at the State Security Court nor the Court itself could examine such allegations as such.   If the Public Prosecutor had considered these allegations to be serious or credible, he could only have referred them to the competent local Public Prosecutor. Furthermore the Court itself could discard evidence obtained under these circumstances.           The Commission observes that the applicants raised in the proceedings before the State Security Court and then before the Court of Appeal their detailed complaints concerning their alleged ill-treatment during their time in police custody.   The Commission notes that, under Turkish law, the applicants were entitled to complain at the trial if their statements to the police had been made under torture and that ill-treatment of prisoners by police officers is to be prosecuted ex officio.   The Commission is therefore satisfied that the applicants have availed themselves of a proper remedy under Turkish law in that they raised their complaint of ill-treatment at their trial, first with the Public Prosecutor and subsequently before the State Security Court and the Court of Cassation.   It concludes from the Government's submissions that the Public Prosecutor did not refer the complaint to the competent local Public Prosecutor, because he did not consider the allegations to be credible, and that, for the same reason, the Court did not discard the evidence obtained during the applicants' detention incommunicado.           The Commission has next examined whether the applicants were nevertheless required to avail themselves of the further remedy indicated by the Government by addressing a criminal complaint to the competent Public Prosecutor.   The Commission here observes that the present complaint concerns primarily a question of evidence and that the reason why the applicants were unsuccessful in raising it at their trial was that the State Security Court and the Public Prosecutor did not find that there was sufficient evidence to support their detailed allegations.   The Commission therefore considers that the applicants, if they had availed themselves of the remedy indicated by the Government, would have been faced with the same problem of proving that they had in fact been ill-treated.   The Commission here notes that during their interrogation by the police the applicants were held in isolation without access to their lawyers and their families; according to the applicants the police subsequently kept them in custody for five more days before bringing them before the legal authorities in order to let the traces of torture disappear in the meantime.   The Commission considers that the applicants' failure to prove their allegations of torture at their trial creates a presumption to the effect that the remedy indicated by the Government would not have had any chance of giving the applicants satisfaction (cf., mutatis mutandis, No. 2686/65, Kornmann, Dec. 13.12.66, Yearbook 9 p. 495 at p. 510; Nos. 14116/88 and 14117/88, Sargin and Yagci, Dec. 11.5.89, to be published in D.R., see also Revue universelle des droits de l'homme 1989 p. 516).   For this reason the applicants were not obliged to exhaust the said remedy in order to comply with Article 26 (Art. 26) of the Convention.   b)       The Government have not mentioned any domestic remedy available to the applicants with regard to their detention incommunicado, by the police, as such.   Apparently this particular form of detention was an administrative practice.   The Commission notes, however, that the applicants referred to their detention incommunicado before the State Security Court and the Court of Cassation in support of their complaints that their confessions had been obtained by torture, in violation of Article 3 (Art. 3) of the Convention, and that their rights of defence under Article 6 (Art. 6) of the Convention had been restricted - complaints which were finally determined at the domestic level by the Court of Cassation.           The applicants have thus also complied with the six months' time-limit laid down in Article 26 (Art. 26) of the Convention.           The Commission concludes in respect of the applicants' complaints under Article 3 (Art. 3) of the Convention that the Government's objection of non-exhaustion of domestic remedies must be rejected and that the applicants have complied with the six months' rule.   (ii)     Merits           The Government submit that the applicants have failed to substantiate their allegations or introduce any evidence whatsoever to support their claims that they were subjected to treatment contrary to Article 3 (Art. 3) of the Convention.   They were examined on two occasions, at the beginning and at the end of police custody.   The forensic reports showed that there were no bruises or marks consistent with ill-treatment.   As to the fourteen days of custody spent incommunicado, the applicants did not mention any psychological torture.           The applicants submit that they were subjected to torture and ill-treatment as explained in their complaints.   The contents of their statements to the police clearly show that they were forced to give information about themselves and their contacts.   The Public Prosecutor tried to cover up the ill-treatment inflicted by the police by saying that he had himself ordered the investigations, in spite of the fact that he had not been informed of the applicants' arrest until seven days after the event.           The Commission has conducted a preliminary examination of the parties' submissions.   It notes that the applicants were for fourteen days held in detention incommunicado and that they have provided detailed descriptions of their alleged ill-treatment during this period.   The Commission considers that the complaints under Article 3 (Art. 3) of the Convention raise complex issues of law and fact, the resolution of which requires an examination of the merits.   It follows that these complaints are not manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   II.      Article 5 (Art. 5) of the Convention           The applicants allege violations of Article 5 paras. 1 (a), 1 (c), 3 and 4 (Art. 5-1-a, 5-1-c, 5-3, 5-4) of the Convention in that: -        they were not arrested for the purpose of being brought before a judge but rather with the intention of extracting information and confessions from them; -        they were kept in police custody for fourteen days; -        while in police custody, they had no remedy to challenge its lawfulness; -        the length of their detention on remand was not reasonable.           However, the Commission is not required to decide whether or not the facts alleged by the applicants disclose any appearance of a violation of Article 5, as Article 26 (Art. 5, 26) of the Convention provides that the Commission "may only deal with the matter ... within a period of six months from the date on which the final decision was taken".           The Commission notes that the applicants were deprived of their liberty until 29 November and 7 December 1988 respectively, whereas the applications were introduced on 9 November 1989, i.e. more than six months later.   It follows that the complaints under Article 5 (Art. 5) of the Convention have been introduced out of time and must therefore be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.   III.     Article 6 (Art. 6) of the Convention   (i)      Independence and impartiality of the Courts           The applicants complain that their case was not heard by an independent and impartial tribunal as required by Article 6 para. 1 (Art. 6-1) of the Convention, which reads as follows:           "In the determination ... of any criminal charge against him,         everyone is entitled to a ... hearing ... by an independent         and impartial tribunal established by law."           The Government maintain that the State Security Courts, which are special courts set up to deal with offences against the existence and continuity of the State, are ordinary courts, given that they were established in accordance with the provisions of Article 143 of the Constitution.   As they are independent judicial organs, no public authority or agent could give instructions to such courts.   State Security Courts are composed of three members one of whom is a military judge.   A civil judge acts as president and all judges have attained the first grade in the career scale.   The presence of a military judge in the Court does not prejudice its independence, this judge being a judge by career and not belonging to the military.   The judges of State Security Courts evaluate the evidence and take their decisions in accordance with the law and on their own conscientious conviction as required by Article 138 of the Turkish Constitution.   The verdicts of such courts are subject to review by the High Court of Appeal.           The applicants argue that the State Security Courts were established in 1984 to replace extraordinary military courts for the hearing of cases regarding certain offences, especially political offences.   The State Security Court established after 1984 should not   have tried the applicants, who had been accused of crimes which had occurred in 1981-1982.   The High Council of Judges and Prosecutors which appoints the judges of the State Security Courts and which may influence their careers is under pressure from the executive given the fact that its President is the Minister of Justice and the two other members are from the Ministry of Justice.   The judges and prosecutors are supervised by inspectors of justice from the Ministry.   The presence of a military judge and a number of military prosecutors at the State Security Court causes a problem concerning the independence of that court, the military judges being responsible to their commander as military officers.           The Commission has conducted a preliminary examination of the parties' submissions.   It considers that in this respect the applications raise issues of fact and law, the resolution of which requires an examination of the merits.   It follows that this part of the applications is not manifestly ill-founded.   (ii)     "Fair trial"           The applicants complain that their trial was not fair as required by Article 6 para. 1 (Art. 6-1) of the Convention in that their statements to the police were taken into account by the trial court. They also claim that they were not promptly informed of the charges against them (Article 6 para. 3 (a) (Art. 6-3-a)), that they did not have adequate time and facilities during their time in police custody for the preparation of their defence (Article 6 para. 3 (b) (Art. 6-3-b)), that they did not have access to their lawyers during their police custody (Article 6 para. 3 (c) (Art. 6-3-c)) and that their request to have the police officers brought as witnesses before the Court was refused (Article 6 para. 3 (d) (Art. 6-3-d)).           The Government submit that the applicants and the other accused were in possession of all the information required for their defence.   They became aware of the accusations brought against them when being interrogated by the police, given the fact that the alleged offences appeared at the top of the statements they signed.   The applicants had been notified by the arrest warrant about the basis and the reasons for their arrest on the day following their arrest.   They were charged in an indictment dated 28 September 1987, indicating the nature and the elements of the offences they had committed, the applicable provisions of law, the supporting evidence, the acts of the accused etc.   The applicants were defended by their lawyers from the beginning of the trial.   Both the applicants and their lawyers had every facility for the preparation of a full and free defence.   Under Article 136 of the Code of Criminal Procedure and a circular from the Ministry of Justice, the applicants could have asked for lawyers while in custody but they did not avail themselves of that opportunity.   The verdict was not based on statements made to the police.   The right to keep silent and the right to defend oneself are recognised by the Constitution.   The first applicant did not answer the questions put by the police.   The criminal charges within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention were laid in the indictment dated 28 September 1987.   The evidence on which the verdict was based was discussed after this date and during the trial stage.   The Court's refusal to hear the police officers who arrested the applicants did not influence the verdict.           The applicants maintain that the statements made by co-accused with regard to themselves and their own statements had been extracted under torture.   Nevertheless, the Public Prosecutor drew up the indictment on the basis of these documents and submitted them to the registry of the Court.   Moreover, during the hearings, the State Security Court read the statements made by the applicants to the police during their custody, in spite of the lawyers' objections and in spite of all the complaints of ill-treatment.   The applicants had been forced, while in police custody, to give information about the members of the Communist Party and about their relationship with the Party.   They were not informed about the charges against them.   During their detention in police custody, they were denied facilities for preparing their defence.   They did not have access to their lawyers, the political section of the police being closed to everybody, including lawyers.   They were held incommunicado during this time in violation of Article 136 of the Code of Criminal Procedure, which stipulates that the client must be able to meet his lawyer at every stage of the proceedings.   The Court refused to hear the policemen and two other detainees (not accused but held in custody with the applicants) as witnesses in order to determine the relationship between the applicants and the Turkish Communist Party.           The Commission has conducted a preliminary examination of the parties' submissions.   It considers that also in this respect the applications raise complex issues of law and fact, the resolution of which requires an examination of the merits.   It follows that also this part of the applications is not manifestly ill-founded.   IV.      Articles 9, 10 and 11 in conjunction         with Article 14 (Art. 9+14, 10+14, 11+14) of the Convention           The applicants complain of violations of Article 9 (Art. 9) (freedom of thought), Article 10 (Art. 10) (freedom of expression) and Article 11 (Art. 11) (freedom of association), taken alone or in conjunction with the prohibition of discrimination in Article 14 (Art. 14) of the Convention, in that they were sentenced to four years and two months' imprisonment for being members of the Turkish Communist Party.   (i)      Exhaustion of domestic remedies           The Government argue that the applicants failed to exhaust a domestic remedy in that in the course of the proceedings they neither invoked Articles 9, 10, 11 and 14 (Art. 9, 10, 13, 14) of the Convention nor asked the Court to refer the case to the Constitutional Court.           The applicants reply that they did not challenge Article 141 and 142 of the Criminal Code because they were trying to prove that they were innocent and not members of the Turkish Communist Party.           The Commission notes that the trial court, in its judgment of 29 November 1988, refused to refer the case to the Constitutional Court, given the fact that the latter had already stated that the provisions of Article 141 of the Criminal Code were not inconsistent with freedom of thought and thus not unconstitutional.           The Commission concludes that the remedy indicated by the Government cannot be considered as an effective remedy which the applicants were required to exhaust under Article 26 (Art. 26) of the Convention (cf., mutatis mutandis, as regards a complaint to the German Federal Constitutional Court, No. 8544/79, Öztürk, Dec. 19.12.81, D.R. 26 p. 55).           It follows that the Government's objection of non-exhaustion of domestic remedies must be rejected.   (ii)     Merits           The Government state that the applicants were accused of participating in the activities of an organisation aiming at the dictatorship of the proletariat.   This accusation was considered proved and the applicants were sentenced by the Court to four years and two months' imprisonment.   The applicants were conditionally released in November/December 1988, one year and three months after their arrest. On 12 April 1991, Article 141 of the Turkish Penal Code, under which they had been convicted, was abrogated.           The applicants submit that Article 141 of the Criminal Code was an adaptation of the "Code of State Security" promulgated by the Mussolini Government in Italy.   After the amendments to this Article on 16 July 1938, which removed the expression "by force", this offence was committed by the mere adherence to a particular opinion.   The applicants maintain that the Communist Party has been held to be an association of the type defined in that article, i.e. an association having the aim of imposing the authority of one social class. Therefore the freedom to manifest one's beliefs, the freedom of expression and of association could not be exercised by persons holding communist views.           The Commission has carried out a preliminary examination of the parties' submissions.   It considers that also in this respect the applications raise complex issues of fact and law that cannot be resolved without an examination of the merits.   It follows that also this part of the application is not manifestly ill-founded.           For these reasons, the Commission, by a majority,           DECLARES INADMISSIBLE the applicants' complaints under                               Article 5 (Art. 5) of the Convention concerning                               their deprivation of liberty;           DECLARES ADMISSIBLE, without prejudging the merits of the                              case, the remainder of the applications.                   Secretary to the Commission           President of the Commission                    (H.C. KRÜGER)                        (C.A. NORGAARD)