CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 30 juin 1997

.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                           Application No. 25091/94                       by Arzu and imam SAHiN                       against Turkey          The European Commission of Human Rights sitting in private on 30 June 1997, the following members being present:                M.     S. TRECHSEL, President            Mme    G.H. THUNE            Mme    J. LIDDY            MM.    G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  H. DANELIUS                  L. LOUCAIDES                  M.P. PELLONPÄÄ                  B. CONFORTI                  I. BÉKÉS                  J. MUCHA                  D. SVÁBY                  A. PERENIC                  C. BÎRSAN                  P. LORENZEN                  E. BIELIUNAS                  E.A. ALKEMA                  M. VILA AMIGÓ              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 application No. 25091/94 introduced on 28 April 1994 by Arzu and imam Sahin against Turkey and joined on 9 September 1994 with application No. 23145/93 lodged by Tahir Elçi (originally in the name of Ömer Elçi) and others against Turkey;        Having regard to :   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the observations submitted by the respondent Government on 18      November 1994 and the observations in reply submitted by the      applicants on 18 January 1995;   -     the parties' oral submissions at the hearing on 2 December 1996;   -     the Commission's decision of 2 December 1996 on the admissibility      of the application;   -     the complementary observations submitted by the applicants on      4 February 1997 and the observations in reply submitted by the      Government on 17 April 1997.        Having deliberated;        Decides as follows:   THE FACTS        The present application has been joined with application No. 23145/93, and the two applications have been brought on behalf of the applicants, lawyers arrested and detained under emergency law in November and December 1993 in Diyarbakir in South East Turkey. They are represented before the Commission by Professor Kevin Boyle and Ms. Françoise Hampson, both of the University of Essex, England.        The facts of the present case, which are in dispute between the parties, may be summarised as follows.   I.    The applicants state that the following occurred.        On 7 December 1993, imam Sahin was taken into custody by policemen from the Anti-Terror Department in istanbul, when he was to attend a hearing before the State Security Court. He was taken to the Anti-Terror Department, and after being held there for a certain period, he was taken to his house where a search was carried out, but no offensive object was found. His wife Arzu Sahin, who was at home, was also taken into custody, and they were both blindfolded and put into a cell at the Security Directorate. On 11 December 1993 they were taken to Diyarbakir by plane and, upon their arrival there, to the Diyarbakir Intelligence and Interrogation Centre.        At the Interrogation Centre, imam Sahin was forced to strip completely naked. He was blindfolded and subjected to ill-treatment such as "falaka", cold water torture, squeezing of genitals, suspension, electric shocks, foul language, and threats against his wife were also made to him during the 14 days he was held for interrogation. During the period he was held in custody, he was only given a quarter of a loaf (about 200 g) of bread a day. He did not see his wife during this time, nor did he know anything about her fate.        On the day he was to be brought before the court, he was taken again for interrogation in the middle of the night. They took hold of his hand and made him scribble blindfolded on some papers. He does not know what these papers were.        Arzu Sahin was also detained at the Intelligence Interrogation Centre and interrogated under duress. She was detained in bad conditions with meagre rationing of bread once a day and minimal access to toilet facilities.        On 21 December 1993, Arzu and imam Sahin were brought before the examining judge and remanded in custody by the examining judge on the claim that a person by the name of Abdülhakim Güven, who wished to benefit from the Remorse Law, had incriminated them. However, they do not know the person in question and have had no relations with him.        In the indictment issued on 22 December 1993 Arzu Sahin was charged, inter alia, with "drawing up documents belittling the Turkish State and faxing them to human rights organisations in European countries".        Arzu and imam Sahin were released on bail on 17 February 1994.       II.   The respondent Government state as follows.        Following the statements given by Abdülhakim Güven who was on trial for being an active member of the terror organisation PKK, an investigation had been instigated against various persons, including Arzu and imam Sahin.        As a consequence of the preliminary investigation, the chief public prosecutor of the State Security Court of Diyarbakir filed a criminal action with the indictment dated 22 December 1993 against 23 defendants, including Arzu and imam Sahin.        In this indictment, 14 lawyers among the 23 defendants were charged with the offence of being members of and acting for the terror organisation PKK. Some of them were suspected of having committed serious crimes such as helping PKK terrorists to get weapons, smuggling in and out of prison proscribed items or instruments for committing crimes within prison such as cyanide or a knife for the PKK inmates, receiving and implementing instructions from the PKK leadership.        On 17 February 1994 there was a first hearing before the State Security Court. Arzu and imam Sahin as well as other defendants were released on the same day.        The criminal action before the State Security Court against the 23 defendants is still going on. According to the latest information, the Court was expected to conclude the case in early 1997.   III. The records submitted in the case show that, at the hearing on 17 February 1994 before the Diyarbakir State Security Court, most of the charged persons, including Arzu and imam Sahin, complained of torture, ill-treatment or undue pressure having been exercised on them during their police custody. At a subsequent hearing on 28 April 1994 before the State Security Court, one of Arzu and imam Sahin's co- accused also referred to such treatment.        After the hearings on 17 February and 28 April 1994, the State Security Court took certain procedural decisions in which, however, no mention was made of the complaints relating to torture, ill-treatment or undue pressure.   PROCEEDINGS BEFORE THE COMMISSION        On 2 December 1996 the Commission declared the present application and application No 23145/93 (they had been joined on 9 September 1994) inadmissible insofar as the complaints raised by Arzu Sahin, imam Sahin and certain other applicants in regard to torture, ill-treatment or undue pressure were concerned. The Commission also declared inadmissible the complaints concerning the length of police custody and declared admissible the remainder of the applications.        By letter of 4 February 1997 the applicants stated that the decision to declare their complaints regarding ill-treatment in police custody inadmissible was based on a mistake as to the time at which they had introduced these complaints before the Commission.        The Government submitted their observations on this matter on 17 April 1997.     THE LAW        The Commission recalls that in its decision on 2 December 1996 on the admissibility of the present application as well as application No 23145/93, it declared inadmissible Arzu and imam Sahin's complaints under Article 3 (Art. 3) of the Convention on the ground that these complaints had not been introduced within the six months time-limit provided for in Article 26 (Art. 26) of the Convention. The Commission based this conclusion on the finding that Arzu and imam Sahin had only raised this complaint in their final submissions which had been received on 4 November 1996.        Arzu and imam Sahin have pointed out that in connection with the introduction of their application on 28 April 1994 a statement by imam Sahin had been submitted which contained allegations of torture and that their separate application form dated 3 September 1994 had contained a specific complaint of violations of Article 3 (Art. 3) of the Convention.        The Commission first notes that, in the applicant's submissions of 22 April 1994, it was indeed alleged that certain applicants in application No. 23145/93 had been subjected to treatment contrary to Article 3 (Art. 3). However, Arzu and imam Sahin were not among the persons alleged to have been exposed to such treatment. The fact that a statement by imam Sahin concerning the treatment to which he claimed to have been subjected was submitted on that occasion is not a sufficient basis for considering that a specific complaint of ill- treatment was made also on his behalf.        It is true, however, that in their separate application of 3 September 1994 Arzu and imam Sahin did submit that they were victims of violations of Article 3 (Art. 3). Consequently, the Commission's decision on admissibility contains an error insofar as it is claimed that these two applicants did not complain of ill-treatment before their final submissions which were received on 4 November 1996. The Commission must therefore annul its decision in this regard and proceed to a new examination of Arzu and imam Sahin's complaints of violations of Article 3 (Art. 3) on the basis that these complaints were first made in their application of 3 September 1994.        When the Commission, in its decision on admissibility, applied the six months rule in regard to the complaints by several applicants regarding ill-treatment, it did not indicate a precise date as the starting-point of the six months period but stated in general terms, with regard to all the applicants, that that period should be considered to have started running "not later than 28 April 1994", because "the failure of the judicial authorities to act must have become gradually apparent in the period up to 28 April 1994". However, it is now necessary to examine the specific situation of the applicants Arzu and imam Sahin.        The reason why the date of 28 April 1994 was mentioned as the latest starting-point of the six months time-limit was that at the hearing on that date before the State Security Court one of the accused - who was not Arzu or imam Sahin - complained of ill-treatment. However, as regards Arzu and imam Sahin, the date of 28 April 1994 has no special significance. What is relevant in their case is the fact that they complained of ill-treatment to the State Security Court on 17 February 1994 and that no mention was made of this complaint in the procedural decisions taken by the Court on that date. They should therefore have been aware, as from 17 February 1994, or very soon thereafter, that no action would be taken at the domestic level, and they should have complained to the Commission within six months from that time in order to comply with the conditions of Article 26 (Art. 26) of the Convention. Consequently, the six months time-limit expired on or about 17 August 1994, i.e. before Arzu and imam Sahin submitted their application form dated 3 September 1994.        The Commission finds, therefore, that the applicants Arzu and imam Sahin   have introduced their complaints under Article 3 (Art. 3) of the Convention out of time and that these complaints are inadmissible under Articles 26 and 27 para. 3 (Art. 26, 27-3) of the Convention.        For these reasons, the Commission,        unanimously,      DECIDES TO RE-OPEN its examination of the admissibility of the      application insofar as it concerns Arzu and imam Sahin's      complaints of ill-treatment ;        by a majority,      DECLARES INADMISSIBLE this part of the application.           H.C. KRÜGER                          S. TRECHSEL          Secretary                            President      to the Commission                     of the Commission