CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 16 avril 1998

.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. 28010/95                       by Hüseyin SiMSEK                       against Turkey                          __________          The European Commission of Human Rights (Second Chamber) sitting in private on 16 April 1998, the following members being present:              MM     J.-C. GEUS, President                  M.A. NOWICKI                  G. JÖRUNDSSON                  A. GÖZÜBÜYÜK                  J.-C. SOYER                  H. DANELIUS            Mrs    G.H. THUNE            MM     F. MARTINEZ                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY                  P. LORENZEN                  E. BIELIUNAS                  E.A. ALKEMA                  A. ARABADJIEV              Ms     M.-T. SCHOEPFER, Secretary to the Chamber          Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 24 April 1995 by Hüseyin Simsek against Turkey and registered on 25 July 1995 under file No. 28010/95;        Having regard to the reports provided for in Rule 47 of the Rules of Procedure of the Commission;        Having regard to the observations submitted by the respondent Government on 30 July 1997 and the observations in reply submitted by the applicant on 5 September 1997;        Having deliberated;        Decides as follows:   THE FACTS        The applicant, a Turkish citizen, was born in 1963 and resides in Tunceli. He is represented before the Commission by Aydin Erdogan, a lawyer practising in Ankara.        The facts of the case, as submitted by the parties, may be summarised as follows.        The particular circumstances of the case        The police carried out operations against TKP-TIKKO activists and H.G. was taken into police custody. During his interrogation he confessed that he was the supervisor of the group in Sivas and that he used to have contact with other supervisors in Germany by telephone. He offered to arrange a meeting, called the number in question and fixed the meeting with a man, named O, which was a code name. On 9 January 1995 the police arrested both of them at the meeting point.        Following their arrest, they signed an incident report, concerning their arrest, which was drafted by the policemen and in which it was stated that the arrestees were accused of being members of an illegal terrorist organisation.        The person with the code name O was in fact the applicant, who had formerly been convicted of being a member of the leftist terrorist group TKP-TIKKO. After serving his sentence, he had been released in 1989.        On 9 January 1995 the applicant was taken into police custody in Ankara on suspicion of continuing his activities as a member of the leftist terrorist group TKP-TIKKO.        On 10 January 1995 the Public Prosecutor at the Ankara State Security Court extended the applicant's detention in police custody to 16 January 1995. The Public Prosecutor also asked the investigating judge to place the applicant in detention on remand.        On 16 January 1995, after interviewing the applicant, the judge at the State Security Court at Ankara ordered him to be remanded in custody.        In an indictment dated 9 February 1995, the Public Prosecutor at the Ankara State Security Court charged the applicant with establishing armed organisations or bands, or acting as the head, or assuming command or any particular duty in such organisations or bands with the aim of committing an offence such as to attempt to modify partially or entirely the Constitution of the Turkish Republic or to carry out a coup d'etat against the Grand National Assembly. The Prosecutor relied on Article 168 para. 2 of the Turkish Criminal Code and Article 5 of Law No. 3713.        In the criminal proceedings before the Ankara State Security Court, the applicant denied the charges and requested his acquittal. He stated that H.G. was his friend from the prison and their meeting was just a get-together.     On 19 April 1995 the Court acquitted the applicant. It held that due to lack of evidence that the applicant was still a member of the terrorist group TKP-TIKKO when he was charged, there were no grounds for imposing a punishment on him.        The Prosecutor appealed. He submitted that the applicant had never terminated his relations with the above-mentioned terrorist group. He requested that the verdict be set aside.        The Court of Cassation, upholding the cogency of the State Security Court's assessment of the evidence and its reasoning, dismissed the appeal on 27 October 1995.   COMPLAINTS   1.    The applicant complains under Article 5 of the Convention that his detention in police custody for eight days was unlawful. He explains that Article 16 of Law No. 2845 permits up to fifteen days' detention in police custody in the case of a collective offence, but as the case concerned only him, this exception should not have been applied and he should have been brought before a judge within 48 hours.   2.    He complains under Article 5 para. 2 of the Convention that he was not informed promptly of the reasons for his arrest or of any charge against him.   3.    He also complains under Article 5 para. 3 of the Convention that he was kept in police custody for eight days without being brought before a judge.   4.    He alleges under Article 5 para. 4 of the Convention that Turkish law does not afford any effective remedy by which the lawfulness of his police custody could be decided speedily by a court.   5.    He maintains, under Article 5 para. 5 of the Convention, that he has no right to compensation for excessive length of police custody as his detention was lawful according to the domestic law.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 24 April 1995 and registered on 25 July 1995.        On 26 February 1997 the Commission decided to communicate the applicant's complaints under Article 5 paras. 3, 4 and 5 of the Convention.        The Government's written observations were submitted on 30 July 1997, after an extension of the time-limit fixed for that purpose. The applicant replied on 5 September 1997.   THE LAW   1.    The applicant firstly complains that his detention for eight days was unlawful according to Law No. 2845 since there was no collective offence in his case.          The Commission will examine the applicant's first complaint, as to the unlawfulness of his detention, under paragraph 1 of Article 5 (Art. 5) of the Convention.        Article 5 para. 1 (Art. 5-1) of the Convention, in so far as relevant, provides as follows:        "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."        The Government note in this regard that the applicant was a former member of an illegal terrorist organisation. He was arrested when he met another former militant, H.G., on suspicion of having continued his activities within the organisation. H.G. stated that the applicant was an active supervisor in the organisation.        The applicant disputes the Government's arguments. He states that his meeting with H.G. was just a get-together and that this meeting was arranged by the police in order to accuse him of being a member of the terrorist organisation. He also alleges that the police put pressure on H.G. to arrange a meeting with him and to state that he was an active supervisor in the organisation. He finally states that he was not involved in any of the activities of the terrorist organisation.        The Commission recalls, at the outset, that, on the question whether detention is "lawful", including whether it complies with "a procedure prescribed by law", the Convention refers back essentially to national law and lays down the obligation to conform to the substantive and procedural rules thereof. However, it requires in addition that any deprivation of liberty should be consistent with the purpose of Article 5 (Art. 5), namely "to protect individuals from arbitrariness" (see Eur. Court HR, Wassink v. the Netherlands judgment of 27 September 1990, Series A no. 185-A, p. 11, para. 24).        As regards the instant case, the Commission notes that the applicant was arrested on suspicion of having continued his activities within an illegal terrorist organisation. The offence he was charged with, under Article 5 of Law No. 3713 (Anti-Terrorist Law), was itself of a "collective nature" and it permits (before it was amended on 6 March 1997) a police custody up to fifteen days without being brought before a judge.        Accordingly, on the facts, the Commission considers that the applicant's detention in police custody for eight days can be considered as "in accordance with a procedure prescribed by law" on the basis of "reasonable suspicion" of having committed an offence within the meaning of Article 5 para. 1 (Art. 5-1) of the Convention.        It follows that this part of the application must be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.     The applicant complains that he was not informed promptly of the reasons for his arrest or of any charge against him. He invokes Article 5 para. 2 (Art. 5-2) of the Convention which provides as follows.        "Everyone who is arrested shall be informed promptly, in a      language which he understands, of the reasons for his      arrest and of any charge against him".        The Government argue that the applicant was very well informed of the fact that he was arrested by the police for an investigation concerning the illegal activities of the terrorist organisation, TKP/ML-TiKKO, as he signed the incident report in which his arrest and the reasons for his arrest were clearly defined and described.        The applicant does not reply on this point.        The Commission observes that, according to the observations submitted by the Government which were not disputed by the applicant, the policemen arrested the applicant at the scene of a meeting which was arranged by the police and a person suspected of being a member of an illegal terrorist organisation. The applicant was at least aware of the matter when he signed the incident report, which clearly mentions the reasons of his arrest.        The Commission therefore considers that the applicant was sufficiently informed of the legal basis for his detention in domestic law.        It follows that this part of the application must be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.    The applicant complains under Article 5 para. 3 (Art. 5-3) of the Convention that he was kept in police custody for eight days without being brought before a judge.        Furthermore, he alleges under Article 5 para. 4 (Art. 5-4) of the Convention that Turkish law does not afford any effective remedy by which the lawfulness of his police custody could be decided speedily by a court.        The respondent Government base their first objection on Article 15 (Art. 15) of the Convention. They recall their derogation of 5 May 1992, with regard to the matters complained of under Article 5 (Art. 5) of the Convention, according to which "the Republic of Turkey is exposed, in South-East Anatolia, to threats to its national security which have steadily increased in extent and intensity ... so that they constitute a threat to the life of the nation within the meaning of Article 15 (Art. 15) of the Convention ... National security is being threatened mainly in the provinces of South-East Anatolia and also partly in the neighbouring provinces ... The Government have had no alternative, given the intensity and diversity of the terrorist activities, but to deploy their security forces in order to suppress them ..."        The Government 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 (Art. 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 and that it was made in accordance with Article 30 of Law No. 3842 (Law amending the Code of Criminal Procedure).        As regards the length of his detention in 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 time was increased to 15 days for collective offence, 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 argue that the applicant was arrested by the policemen and held in detention for seven days with the authorization of the Public Prosecutor and that on the last day of his detention he was first brought before the Public Prosecutor and thereafter 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 applicant disputes all these arguments. He argues that his length of detention in custody was excessive and unreasonable, contrary to the Convention and to the established case-law of the Convention organs.        The Commission 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 Commission concludes, therefore, that this part of the application is not manifestly ill-founded, within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other grounds for declaring it inadmissible have been established.   4.    The applicant maintains under Article 5 para. 5 (Art. 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 submit that the applicant has 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 applicant recalls that there are no remedies in domestic law to challenge the lawfulness of his detention. He affirms that the domestic law itself is contrary to the Convention.        The Commission observes that, in proceedings before the State Security Courts, the length of detention in police custody could be extended to 15 days at that time by order of the prosecution. The length of detention in police custody being challenged by the applicant did not therefore exceed the maximum time-limit provided for in domestic law. According to Law No. 466, cited by the Government, an action against the authorities can only be for compensation for damage suffered as a result of unlawful deprivation of freedom.        In earlier cases, on similar facts, the Commission has already found that this remedy was ineffective on the grounds, inter alia, that the Turkish judicial authorities to which the applicant had complained had already concluded that the detention in question was lawful (see, for example, Nos. 14116/88 and 14117/88 (joined), Dec. 11.5.87, D.R. 61, p. 250; No. 23878-23883/94 (joined), Dec. 25.5.95, D.R. 81, p. 92).        The Commission considers, in the light of the foregoing, that the Government's submission that the applicant has failed to exhaust domestic remedies cannot be upheld.        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 within the meaning of Article 27 (Art. 27) of the Convention.        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.        The Commission 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 Commission concludes, therefore, that this part of the application is not manifestly ill-founded, within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other grounds for declaring it inadmissible have been established.        For these reasons, the Commission, unanimously,        DECLARES ADMISSIBLE, without prejudging the merits, the      applicant's complaints regarding the length of his detention    in      police custody and the right to compensation;        DECLARES INADMISSIBLE the remainder of the application.      M.-T. SCHOEPFER                                   J.-C. GEUS       Secretary                                      President to the Second Chamber                          of the Second Chamber