CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 11 juillet 2000

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margin-bottom:0pt; text-align:justify; font-size:10pt } .s3133A7C8 { font-family:Arial; color:#0069d6 }       FIRST SECTION             CASE OF DİKME v. TURKEY   (Application no. 20869/92)                       JUDGMENT     STRASBOURG   11 July 2000     [This judgment is subject to editorial revision before its reproduction in final form in the official reports of selected judgments and decisions of the Court.] In the case of Dikme v. Turkey, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Mrs   E. Palm , President ,   Mr   L. Ferrari Bravo ,   Mr   C. Bîrsan ,   Mrs   W. Thomassen ,   Mr   B. Zupančič ,   Mr   R. Maruste , judges ,   Mr   F. Gölcüklü , ad hoc judge , and   Mr   M .   O'Boyle , Section Registrar , Having deliberated in private on 29 February and 20 June 2000, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1.     The case was referred to the Court, in accordance with the provisions applicable prior to the entry into force of Protocol No. 11 to the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) [1] , by the European Commission of Human Rights (“the Commission”) on 11 September 1999 (Article 5 § 4 of Protocol No. 11 and former Articles 47 and 48 of the Convention). 2.     The case originated in an application (no. 20869/92) against the Republic of Turkey lodged with the Commission under former Article 25 of the Convention by two Turkish nationals, Mr Metin Dikme (“the first applicant”) and his mother, Mrs Emine Dikme (“the second applicant”), on 22 October 1992. Relying on Article 3 and Article 5 § 3 of the Convention, the first applicant complained that he had been held in police custody for an excessive length of time and had been subjected to ill-treatment during that time. Under Article 5 § 2 he alleged that he had not been duly informed at the time of his arrest of the offences of which he was suspected. He also submitted that the fact that he had been unable to confer with his lawyer while in custody had amounted to a violation of Article 6 § 3 (c). Lastly, he alleged that he had been the victim of a violation of Article 2 on two counts: firstly, the offence of which he was accused carried the death penalty; and secondly, the ill-treatment he had suffered had been so severe that he could have died from the injuries he received. The second applicant complained that the prison authorities' refusal to allow her to visit her son had amounted to a breach of her right to respect for her family life within the meaning of Article 8. 3.     On 29 November 1993 the Commission decided to give notice of the application to the Turkish Government (“the Government”), inviting them to submit written observations on its admissibility and merits. On 17 October 1994 the Commission, noting that despite reminders the Government had neither submitted any written observations nor raised any preliminary objections, declared admissible the applicants' complaints under Article 3, Article 5 §§ 2 and 3, Article 6 § 3 (c) and Article 8 of the Convention and declared the remainder of the application inadmissible. On 3 March 1998 the Commission decided of its own motion, having regard to the possibility of applying former Article 29 of the Convention, to invite the parties to submit observations on whether the complaints under Article 5 §§ 2 and 3 had been lodged within the six-month time-limit. On 2   December 1998, in the absence of the necessary two-thirds majority of its members, it decided that the provision was not applicable. In its report of 4 June 1999 (former Article 31 of the Convention) [2] , the Commission expressed the unanimous opinion that there had been a violation of Article 3 and Article 5 § 3 and of Article 6 § 1 taken together with Article 6 § 3 (c), but not of Article 5 § 2, in respect of the first applicant. It also expressed the unanimous opinion that there been no violation of Article 8 in respect of the second applicant. 4.     On 20 September 1999 a panel of the Grand Chamber decided that the case should be examined by one of the Sections of the Court (Rule 100 §   1 of the Rules of Court). The President of the Court assigned the case to the First Section. Mr R. Türmen, the judge elected in respect of Turkey, withdrew from sitting in the case (Rule 28). The Government accordingly appointed Mr F. Gölcüklü to sit as an ad hoc judge (Article 27 § 2 of the Convention and Rule 29 § 1). 5.     After consulting the representatives of the Government and the applicants, the Chamber decided to hold a public hearing (Rule 59 § 2). 6.     On 12 November 1999 the Registry received the applicants' memorial. On 13 December 1999, within the time allowed, as extended by the President of the Section, the Government filed their memorial. An addendum to the applicants' memorial setting out details of their claims under Article 41 of the Convention was received at the Registry on 24   January 2000. 7.     On 10 February 2000, pursuant to a decision by the Court, the Registry submitted questions to the parties concerning the facts of the case and requested them to give their replies at the hearing. 8.     On 25 February 2000 the President granted the applicants legal aid (Rule 91). 9.     A hearing took place in public in the Human Rights Building, Strasbourg, on 29 February 2000.   There appeared before the Court: (a)     for the Government Mrs   D. Akçay , Doctor of Law,   Co-Agent , Mr   Y. Ö zdemir, Mr   F. Polat , Ms   M. Gülşen ,   Advisers ; (b)     for the applicants Mr   T. Höhne , of the Vienna Bar,   Counsel . The Court heard addresses by Mr Höhne and Mrs Akçay. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 10.     The applicants, Mr Metin Dikme and his mother, Mrs Emine Dikme, were born in 1969 and 1933 respectively. The first applicant is currently held in Istanbul Prison. His mother lives in Vienna. A.     Mr Dikme's arrest and detention in police custody and pending trial 11.     The circumstances in which the first applicant was arrested, taken into police custody and detained pending trial, as set out by him in a letter dated 24 June 1992, may be summarised as follows. 12.     At 7.30 a.m. on 10 February 1992 three police officers stopped and questioned the first applicant and his female companion Y.O. in the Levent district of Istanbul. Both were in possession of false identity papers. They were immediately arrested and, after a wait of several hours at the local police station, were taken to the anti-terrorist branch of the Levent police headquarters in Istanbul (“the branch”). They were taken into custody in separate parts of the building. On arrival, the first applicant was blindfolded and a group of police officers who said they were members of the “anti- Dev-Sol [3] ” squad began punching and kicking him, threatening to kill him if he did not reveal his true identity. He was then led to a ground-floor room where he was stripped, had his hands tied together behind his back and was suspended by his arms, a method known as “Palestinian hanging”. For several hours the police officers beat him repeatedly while he was in this position and administered electric shocks through electrodes attached to his feet and genitals. 13.     At about 7 p.m. Mr Dikme was carried to another room and made to lie on the floor with his hands still tied behind his back. A man who said he was a member of the secret service told him: “You belong to Devrimci Sol , and if you don't give us the information we need, you'll be leaving here feet first!” The police officers then started to beat him, aiming some of their blows at his genitals. That lasted until 2 a.m., at which point he was taken to a 2-sq. m. cell, where he had to sleep naked on the floor. 14.     At about 8 a.m. the next morning he was taken back to the ground floor, tied up and laid on the ground. He suffered a further beating and electric shocks were administered to his feet, the area behind his ears and his tongue. By the time the torturers went to lunch, he had already fainted twice. An hour later he was again subjected to “Palestinian hanging” and given electric shocks while having cold water poured over him. He was then left lying on the concrete, naked and blindfolded. That evening he was taken back upstairs, where the secret-service agent dragged him by the hair and twice banged his head against the wall. He was then dressed and taken to a forest, where somebody pointed a revolver at his head and urged him to say his “last prayer” before firing a blank shot. Immediately after this mock execution, he was escorted back to the branch. There he was again blindfolded and stripped and then placed in a bath of ice-cold water. The next day the police officers continued to ill-treat him. 15.     The ill-treatment ended on Mr Dikme's fifth day in custody. However, he continued to be questioned while blindfolded, and was subjected to a barrage of abuse. 16.     Mr Dikme had no assistance from a lawyer at any time while he was in police custody; he spent sixteen hours a day in his cell and was not allowed to have any visitors or to read any books or newspapers. The only person he saw after entering the premises of the branch was his companion Y.O., although he was not able to speak to her. In that connection, he produced to the Court a letter from Y.O. containing the following passages: “Metin Dikme and I were arrested on 10 February 1992. ... As soon as we arrived at the first branch they blindfolded us and separated us. Before I was taken to a cell, I saw that they had started to beat him. During the sixteen days I spent in the branch, I only saw Metin when he was on his way to or from interrogation sessions, and sometimes when he was being taken to the toilet. On each occasion he was blindfolded. Just once, I could see bruises on his eyes. However, when they questioned me they were always insulting Metin and telling me how they had tortured him ...” 17.     On 25 February 1992 the branch requested the public prosecutor at the Istanbul National Security Court (“the public prosecutor”, “the National Security Court”) to refer the first applicant and Y.O. to the Sultanahmet office of the Institute of Forensic Medicine. The public prosecutor consented and on 26 February 1992 – the sixteenth day of their detention in police custody – they were examined by a forensic medical expert, who allegedly told the first applicant: “You're fighting fit; there's nothing wrong with you.” The medical report, drawn up that same day, stated that no traces of blows or physical force had been found on Y.O.'s body; only “old grazes covered by a scab were observed on [the first applicant's] left elbow”. 18.     Later that day the first applicant and Y.O. were interviewed by the public prosecutor and brought before a judge of the National Security Court. They retracted the statements which they had made to the police and said that they had been signed “under torture”; they denied the accusations against them. Y.O. made the following statement: “I am lodging a complaint against the police officers who tortured me and who ... called themselves the Dev-Sol Squad.” The judge ordered them to be detained pending trial, as he found that there was “substantial evidence” of their membership of Dev-Sol and of their involvement in acts of violence carried out by that organisation. The following comment, signed by Metin Dikme, appeared at the bottom of the order: “I do not wish to inform anybody that I am being held in detention.” 19.     After being transferred to Istanbul Prison, the first applicant was examined by the prison doctor, without a lawyer being present. In his “preliminary” report, dated 28 February 1992, the doctor noted the presence of a series of marks on the first applicant's body. These findings were subsequently reiterated and confirmed in the final report of 4 March 1992, drawn up by the Eyüp office of the Institute of Forensic Medicine following a further examination of the first applicant by a forensic medical expert from that office: “With reference to report no. 55 of 28 February 1992, signed by the prison doctor and drawn up in respect of Metin Dikme ... and further to an examination of the latter, the following findings were recorded: [Observed] a scab 0.5 cm in diameter in the left axillary region; a 7 cm by 7 cm erosion on the left elbow, which had formed a scab; two parallel circular lesions, which had partly formed a scab, 4 cm apart on the left wrist; skin erosions on the proximal phalanges of the thumb, index finger and middle finger and a 1.5 cm skin abrasion on the inner side of the distal phalanx of the middle finger of the left hand; a scab on the right elbow; two 0.5 cm scabs on the right outer forearm; a skin lesion on the right wrist; scabs measuring 1 cm on the distal phalanx of the third finger, 0.5 cm on the proximal phalanges of the middle, third and little fingers, 3 cm by 1 cm and 3 cm by 2 cm behind the patella, 10 cm by 1 cm in the region of the right thigh, 0.5 cm by 0.5 cm on the upper part of the right medial malleolus, and 0.5 cm by 0.5 cm on the lateral malleolus; a bruise on which a scab had formed on the fifth toe of the right foot and a 0.5 cm by 0.5 cm scab on the big toe; a 2 cm by 2 cm skin erosion on the upper part of the right foot; and a 2 cm by 2 cm scab on the medial malleolus and a 1 cm by 1 cm scab on the lateral malleolus. There are also signs of abrasions which have partly formed scabs and partly healed over, as well as of yellowish and brownish bruises (whose dimensions were recorded in the preliminary report) now returning to a normal colour on the fingers of both hands, on both wrists, on the elbows, arms and ankles, on the upper parts of the toes of both feet, and on the right thigh and patella.” The forensic medical expert concluded by stating that the above-mentioned sequelae were not life-threatening and prescribing a five-day period of convalescence. 20.     On 11 June 1992, the date of the religious festival marking the last day of Ramadan, Mrs Dikme sought to visit the first applicant, but was refused permission by the prison managers. 21.     On 18 June 1992 the first applicant signed an authority for a lawyer to act on his behalf, although he did not see the lawyer in person (see paragraph 28 below). B.     The impugned criminal proceedings 1.     The prosecution of Mr Dikme 22.     In an indictment issued on 7 September 1992 the public prosecutor charged the first applicant and Y.O. with carrying out a series of attacks between 1990 and 1992, the victims of which had included a public prosecutor, a retired general and six police officers, and with involvement in a number of acts of violence committed on behalf of the illegal armed organisation Dev-Sol . He sought the death penalty for the first applicant and Y.O., under Article 146 § 1 of the Criminal Code. 23.     On 23 October 1992 the trial began at the National Security Court. The first applicant filed pleadings in which he denied the charges against him and categorically repudiated the content of the records of statements taken by the police while he was in custody, alleging that the statements had been obtained by torture. He accordingly made formal complaints against the officers responsible for him during his time in police custody, and relied on the medical report of 4 March 1992 (see paragraph 19 above and paragraph 29 below). The first applicant submitted, inter alia , that he and Y.O. had had to use false identity papers for fear of police reprisals on account of the criminal record of his sister, who had been killed during a clash with the police in Ankara, and that they had passed themselves off as a married couple simply in order to be able to rent a flat more easily. He consequently pleaded not guilty and applied for release on bail. 24.     On 8 January and 8 October 1993 the public prosecutor preferred two further indictments, charging the first applicant with carrying out other acts of violence, likewise between 1990 and 1992, including murder, armed assaults and robberies, bomb attacks and assault and battery. 25.     After holding forty-four hearings and hearing evidence from some seventy witnesses, the National Security Court delivered its judgment on 26   June 1998. It held that “in the light of the evidence, the accused's guilt [was] established” in relation to some of the offences, which he had committed on behalf of Dev-Sol with the aim of undermining the constitutional order, and sentenced him to death, having regard to the intensity, quantity and seriousness of the offences and to his failure to show any remorse during the trial. 26.     The first applicant's counsel and Principal State Counsel at the Court of Cassation appealed on points of law against the National Security Court's judgment on 29 September and 12 November 1998 respectively. In his appeal counsel for the first applicant did no more than complain that the sentence was “unjust and severe”, while Principal State Counsel submitted that the impugned judgment could not be regarded as having been supported by sufficient grounds, since it did not contain details, where they were needed, of the evidence on which the conviction had been based and the National Security Court's assessment of that evidence. 27.     In a judgment of 22 March 1999, delivered on 7 April 1999, the Court of Cassation set aside the judgment of 26 June 1998 on the ground that it was “contrary to Article 141 of the Constitution and Articles 32 and   260 of the Code of Criminal Procedure to deliver a judgment without applying the rule that judgments must be reasoned in such a way as to enable the Court of Cassation to carry out its review, and without referring in the operative provisions to the substantiated evidence in respect of each of the charges and the assessment made of it ...”. The Court of Cassation consequently remitted the case to the National Security Court, where it is still pending. 2.     The proceedings brought against the police officers accused of ill-treatment 28.     After putting forward their defence at the hearing of 23 October 1992 in the National Security Court (see paragraph 23 above), the first applicant and Y.O. had lodged two separate written complaints against their alleged torturers. On 27 November 1992, in the light of that and, it would seem, on the instructions of a ministerial authority, the public prosecutor decided to contact the relevant authorities in order to ascertain whether the first applicant had had access to a lawyer while in police custody and/or been subjected to ill-treatment after being taken into custody at Istanbul Prison. In a letter dated 30 November the head of the branch replied that “no interview with a lawyer [had taken] place, since throughout Metin Dikme's time in police custody, no lawyer [had] submitted ... a request to that effect”. On 1 December 1992 the governor of Istanbul Prison stated: “Metin Dikme ... was not subjected to ill-treatment during his detention and has never lodged a complaint to that effect with our management. There is no risk of his being subjected to ill-treatment while he is held in our prison. Our files also indicate that he had never conferred with a lawyer.” 29.     On 8 December 1992 the President of the National Security Court forwarded the complaints filed on 23 October 1992 to the public prosecutor for action. 30.     In an order of 10 December 1992 the public prosecutor ruled that he had no jurisdiction ratione materiae and sent the case to the Istanbul prefecture, pursuant to section 15(3) of the Prevention of Terrorism Act (Law no. 3713 – see paragraph 36 below). 31.     On 9 July 1993 the Administrative Council of the province of Istanbul decided that there was no case to answer in respect of the criminal complaint lodged by the first applicant and Y.O. That decision was served on the first applicant on 6 August 1993. 32.     The Court does not have any other information regarding those proceedings. II.     RELEVANT DOMESTIC LAW A.     Rules on detention in police custody 33.     At the material time section 16 of Law no. 2845 on procedure in the national security courts provided that any person arrested in connection with an offence within the exclusive jurisdiction of those courts had to be brought before a judge within forty-eight hours at the latest or, if the offence was a joint one committed outside the region under emergency rule, within fifteen days, not including the time needed to convey the detainee to the judge. 34.     Before questioning an arrested person, police officers must inform him of the offence of which he is suspected and ask whether he wishes to say anything in reply. With regard to legal assistance, Article 144 of the Code of Criminal Procedure (“CCP”) provides, in the version applicable in the instant case, that an accused may confer or correspond with a legal adviser only after being detained pending trial, and the judge may decide that certain items in the file which are considered sensitive will not be disclosed to the accused until criminal proceedings have been instituted. In addition, the accused's legal adviser may not inspect documents in the file until the public prosecutor's office has preferred the indictment (Article   143). B.     Prosecution in respect of acts of ill-treatment 35.     Under the Turkish Criminal Code it is an offence for a government employee to subject a person to torture or ill-treatment (Article 243 in relation to torture and Article 245 in relation to ill-treatment). The authorities' obligations in respect of conducting a preliminary investigation where acts or omissions that may constitute such an offence are brought to their attention are governed by Articles 151 to 153 CCP. Offences may be reported not only to public prosecutors' offices or the security forces but also to local administrative authorities. Complaints may be made in writing or orally. If they are made orally, the authority must make a record of them (Article 151). Under Article 235 of the Criminal Code, any government employee who fails to report to the police or a public prosecutor's office an offence of which he has become aware in the performance of his duties is liable to imprisonment. A public prosecutor who is informed by whatever means of a situation that gives rise to the suspicion that an offence has been committed is under a duty to investigate the facts in order to decide whether or not there should be a prosecution (Article 153 CCP). 36.     If the suspected offender is a civil servant and the offence was committed in the performance of his duties, the preliminary investigation of the case is governed by the Prosecution of Civil Servants Act 1914, which restricts the public prosecutor's jurisdiction ratione personae at that stage of the proceedings. In such cases it is for the relevant local administrative council (for the district or the province, depending on the suspect's status) to conduct the preliminary investigation and, consequently, to decide whether to prosecute. Once a decision to prosecute has been taken, it is for the public prosecutor to investigate the case. An appeal to the Supreme Administrative Court lies against decisions of local administrative councils. If a decision not to prosecute is taken, the case is automatically referred to that court. With regard to accusations against members of the police force and intelligence services engaged in combating terrorism, section 15(3) of Law   no.   3713 – which was in force at the material time – was a lex specialis under which preliminary investigations were subject to the same rule on jurisdiction, but only in respect of offences other than homicide. Subsequently, in a judgment of 31 March 1992 published in the Official Gazette on 27 January 1993, the Constitutional Court annulled that provision with effect from 27 July 1993. 37.     Under Article 102 of the Criminal Code taken together with Articles   243 and 245 cited earlier, there is a five-year time-limit for prosecuting offences of ill-treatment and torture committed by civil servants. C.     Probative value of evidence gathered during the preliminary investigation 38.     From the principles established by the Turkish courts when applying the criminal law it is clear that the questioning of a suspect is a means of enabling him to defend himself that should work to his advantage and not a measure designed to obtain evidence against him. While statements made during questioning may be taken into consideration by the judge in his assessment of the facts of a case, they must nonetheless be made voluntarily, and statements obtained through the use of pressure or force are not admissible in evidence. By Article 247 CCP, as interpreted by the Court of Cassation, any confessions made to the police or the public prosecutor's office must be repeated before the judge if the record of the questioning containing them is to be admissible as evidence for the prosecution. If the confessions are not repeated, the records in question are not allowed to be read out as evidence in court and consequently cannot be relied on to support a conviction. Nevertheless, even a confession repeated in court cannot on its own be regarded as a decisive piece of evidence but must be supported by additional evidence. THE LAW I.     SCOPE OF THE CASE 39.     In his memorial, and subsequently at the hearing, counsel for the applicants, while sharing the Commission's view that there had been a breach of Article 3, Article 5 § 3 and Article 6 §§ 1 and 3 (c) of the Convention, urged the Court to find that Article 5 § 2 had also been infringed in respect of the first applicant and Article 8 in respect of the second applicant. 40.     The Government, both in their memorial and at the hearing, requested the Court to find that the application should have been declared inadmissible for failure to exhaust domestic remedies and failure to comply with the six-month rule. In the alternative, they submitted with regard to the merits that the facts of the case had not given rise to a breach of any of the provisions relied on by the applicants. II.     THE GOVERNMENT'S PRELIMINARY OBJECTIONS A.     The Government's submissions 41.     The Government contested the admissibility of the application on two grounds. 1.     Failure to exhaust domestic remedies 42.     Their first objection – divided into four limbs – was that domestic remedies had not been exhausted. Firstly, neither applicant had at any stage of the proceedings in the domestic courts referred – even in substance – to the provisions of the Convention and/or the rights which they were now relying on before the Court. Accordingly, the Court could not deal with the instant case if it followed the line taken in its Ahmet Sadık v. Greece judgment of 15   November 1996 ( Reports of Judgments and Decisions 1996-V). Secondly, the application was premature with regard to the complaint under Article 3 of the Convention, as it had been lodged before the completion of the proceedings instituted in Turkey against the policemen responsible for the first applicant during his time in police custody (see paragraphs 2, 28 and 31 above). Thirdly, the complaints under Article 6 §§ 1 and 3 (c) were also premature, as the first applicant's trial was still pending before the National Security Court (see paragraph 27 above). Fourthly, following the annulment of section 15(3) of Law no. 3713 (see paragraph 36 above), Mr Dikme had had the option of lodging a fresh complaint with the public prosecutor concerning his allegations of ill-treatment. 2.     Failure to comply with the six-month rule 43.     The Government further submitted that the events underlying the complaints under Article 3, Article 5 § 3 and Article 6 § 3 (c) of the Convention had all occurred on or about 26 February 1992 – the last day of Mr   Dikme's detention in police custody – and that the six-month time-limit should be calculated from that date. In that connection, they pointed out that in a letter dated 3 March 1998 the Commission, conscious of the problems arising in relation to the six-month rule (having already discussed the matter at the admissibility stage – see paragraph 3 above), had invited the parties to submit observations on whether the complaints under Article 5 of the Convention had been lodged out of time. However, in its report the Commission had ignored that aspect of the case and the relevant arguments which the Government had submitted to it on 31 March 1998. Pointing out that, as established in the Court's case-law, the six-month rule in Article   35 contributed to legal certainty, the Government argued that the Commission's approach should not prevent the Court from applying that provision of its own motion and declaring the application inadmissible. Their objection was divided into three limbs. With regard to the applicants' complaints under Article 3 of the Convention, the Government observed that neither the public prosecutor nor the National Security Court judge had taken any action on the allegations of ill-treatment which Mr Dikme had referred to them on 26 February 1992 (see paragraph 18 above). Mr Dikme should accordingly have inferred that any attempt to pursue the allegations would be bound to fail, and should have lodged the complaint with the Commission by 26 August 1992 at the latest. The Government also maintained that the complaint under Article 5 § 3 of the Convention was out of time. The six-month period had begun on 26   February 1992, as Mr Dikme's detention in police custody had been lawful and no remedy could have been effective in challenging it. The same applied to the complaint concerning the fact that the first applicant had not had access to a lawyer during his detention in police custody, since at the material time the Code of Criminal Procedure had not afforded such a right to persons accused of offences within the jurisdiction of the national security courts. B.     The Court's assessment 44.     The Court notes at the outset that it has jurisdiction to take cognisance of preliminary pleas of this kind if and in so far as the respondent State has already raised them before the Commission to the extent that their nature and the circumstances permitted; if that condition is not satisfied, the Government are estopped from raising the matter before the Court (see, among many other authorities, the De Wilde, Ooms and Versyp judgment of 18 June 1971, Series A no. 12, pp. 29-31, §§ 47-55, and the Ciulla v. Italy judgment of 22 February 1989, Series A no. 148, p. 14, §   28). In the instant case that condition is clearly not satisfied in respect of any of the Government's pleas of inadmissibility under Article 35 of the Convention (see paragraphs 42 and 43 above). The Court observes that the Government were twice granted an extension of the time allowed for submitting observations on the application's admissibility. However, they had not commented on the matter by the time the Commission adopted its admissibility decision on 17 October 1994. 45.     Admittedly, the reason prompting an objection to admissibility sometimes comes to light after the decision accepting the application: for example, a reversal of domestic case-law may disclose the existence of a hitherto unknown remedy or an applicant may formulate a new complaint whose admissibility the Government have not yet had the opportunity of contesting (see, among other authorities, the Artico v. Italy judgment of 13   May 1980, Series A no. 37, pp. 13-14, § 27). Similarly, the concern to observe the principles of adversarial procedure and equality of arms may make it necessary to permit the Government to raise an objection out of time, for example where the Commission examines of its own motion a preliminary issue that was not raised before it by the respondent State (see Freedom and Democracy Party (ÖZDEP) v. Turkey [GC], no. 23885/94, §   25, ECHR 1999-VIII). However, since the instant case does not fall within that category, the Government are estopped from raising the objections in question. 46.     The Government nevertheless maintained the contrary and referred to their written observations of 31 March 1998 to the Commission. Although the Commission's report barely mentions the point, the Government appear to have included in their observations two arguments corresponding to the second limbs of the objections set out above: firstly, that the allegations of a breach of Article 3 had been made prematurely (see paragraph 42 above); and secondly, that the complaint under Article 5 § 3 had been lodged out of time (see paragraph 43 above). In point of fact, the Commission had of its own motion invited the Government to submit observations on whether the complaints under Article 5 §§ 2 and 3 of the Convention had been lodged within the six months allowed, with an eye (it would seem) to the possibility of applying former Article 29 of the Convention, which, as amended by Protocol No. 8 [4] , empowered the Commission – in exceptional cases and following a decision by a two-thirds majority of its members – to overturn a decision declaring an application admissible. However, in the absence of the necessary majority, the Commission did not in the end apply the provision (see paragraph 3 above). 47.     Nevertheless, the Court notes that the structure of the protection machinery established by Sections III and IV of the former text of the Convention was designed to ensure that the course of proceedings before the Commission and the former Court was logical and orderly; the function of sifting which former Articles 26 and 27 assigned to the Commission was the first of its tasks (see, mutatis mutandis , the Artico judgment cited above, ibid.). By the terms of Article 5 of Protocol No. 11, the procedure to be followed for applications – such as the present one – in respect of which the Commission adopted a report (under former Article 31 of the Convention) after 1 November 1998, the date on which Protocol No. 11 came into force, is governed by the provisions applicable before that date. The Court's decision must therefore take account of the purpose of former Article 29, and in particular its requirement of a qualified majority vote: “The stringency of this condition, which marks a departure from the principle of decision by a majority ..., demonstrates that the spirit of the Convention requires that respondent States should normally raise their preliminary objections at the stage of the initial examination of admissibility, failing which they will be estopped.” (ibid.) 48.     That being so, notwithstanding the fact that the Commission was able to contemplate applying former Article 29, the Court considers that the Government – who waited until 31 March 1998 before arguing that domestic remedies had not been exhausted in respect of the allegations of ill-treatment and that the complaint concerning the excessive length of detention in police custody had not been lodged within the six-month time-limit (see paragraph 46 above) – cannot be regarded as having recovered, by applying to the Court, the advantage of a simple majority decision which they lost at the admissibility stage. To hold otherwise in cases brought before the Court under Article 5 § 4 of Protocol No. 11 would be incompatible with the structure of the Convention and with the proper administration of justice. 49.     The Court consequently dismisses the Government's preliminary objections. III.     ALLEGED VIOLATIONS OF ARTICLE 5 OF THE CONVENTION 50.     The first applicant complained of a violation of paragraphs 2 and 3 of Article 5 of the Convention, the relevant parts of which provide: “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; ... 2.     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. 3.     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.” A.     Article 5 § 2 of the Convention 51.     In his memorial to the Court the first applicant maintained that, contrary to Article 5 § 2 of the Convention, he had not been informed of the reasons for his arrest or of the charges against him. At the hearing his counsel further submitted that the comments made to Mr Dikme by the branch police officers, who had first tortured him for several hours after his arrest, and by a member of the secret service (see paragraphs 12 and 13 above) had been intended purely as a form of intimidation and had in no way been designed to inform him of the reasons and/or charges that had prompted his arrest. 52.     The Commission, whose view the Government shared, considered that the facts of the case had not given rise to a breach of the provision in question. 53.     The relevant principles governing the interpretation and application of Article 5 § 2 in comparable cases were set out in the Fox, Campbell and Hartley v. the United Kingdom judgment of 30 August 1990 (Series A no.   182, p. 19, § 40): “Paragraph 2 of Article 5 contains the elementary safeguard that any person arrested should know why he is being deprived of his liberty. This provision is an integral part of the scheme of protection afforded by Article 5: by virtue of paragraph 2 any person arrested must be told, in simple, non-technical language that he can understand, the essential legal and factual grounds for his arrest, so as to be able, if he sees fit, to apply to a court to challenge its lawfulness in accordance with paragraph 4 ... Whilst this information must be conveyed 'promptly' (in French: ' dans le plus court délai '), it need not be related in its entirety by the arresting officer at the very moment of the arrest. Whether the content and promptness of the information conveyed were sufficient is to be assessed in each case according to its special features.” In that case the Court found, in the light of the facts, that the applicants had been informed during their interrogation (a few hours after their arrest) of the reasons why they had been arrested. It consequently held that the requirements of Article 5 § 2 were satisfied (ibid., pp. 19-20, §§ 41-43). 54.     In the instant case the Court notes that the reason for the first applicant's arrest was that he produced false papers during an identity check by the police. It considers that, having regard to the criminal and intentional nature of that act, the first applicant cannot maintain that he did not understand why he was arrested and taken to the local police station at 7.30   a.m. on 10 February 1992 (see paragraph 12 above). The same applies to the reasons why the first applicant had to wait at the police station and was taken into police custody at the branch, where he was allegedly interrogated by officers intent on making him disclose his true identity (see paragraph 12 above). 55.     For the rest, the first applicant stated that he had been interrogated throughout his sixteen days in police custody. He alleged that the officers who had started the interrogation were members of the “anti- Dev-Sol ” squad (see paragraph 12 above) and that after the first interrogation session, at about 7 p.m., a member of the secret service had threatened him, saying: “You belong to Devrimci Sol , and if you don't give us the information we need, you'll be leaving here feet first!” (see paragraph 13 above). 56.     In the Court's opinion, that statement gave a fairly precise indication of the suspicions concerning the first applicant. Accordingly, and having regard to the illegal nature of the organisation in question and to the reasons he may have had for concealing his identity and fearing the police (his sister had been killed in a clash with the police – see paragraph 23 above), the Court considers that Mr Dikme should or could already have realised at that stage that he was suspected of being involved in prohibited activities such as those of Dev-Sol . Although he did not give any details of the subject matter of his subsequent interrogations or the times at which they took place, the Court is satisfied – having read the indictments preferred by the public prosecutor (see paragraphs 22 and 24 above) – that Mr Dikme was questioned about his alleged membership of Dev-Sol and his suspected role in specific criminal acts attributed to that organisation. In any event, the intensity and frequency of the interrogations also suggest that at the very first session, which lasted until or slightly beyond 7 p.m., Mr Dikme could have gained some idea of what he was suspected of (see, mutatis mutandis , Kerr v. the United Kingdom (dec.), no. 40451/98, 7 December 1999, unreported). The constraints of time imposed by the notion of promptness in Article 5 § 2 (see, mutatis mutandis , the Fox, Campbell and Hartley judgment cited above, pp. 19-20, § 42) were therefore complied with, especially as the first applicant to some extent contributed to the prolongation of the period in question by concealing his identity. 57.     In conclusion, there has not been a breach of Article 5 § 2 of the Convention in the particular circumstances of the case. B.     Article 5 § 3 of the Convention 1.     Submissions to the Court 58.     The first applicant, whose opinion was endorsed by the Commission, maintained that he had not been brought “promptly” before a judge or other officer authorised by law to exercise judicial power, in breach of Article 5 §   3 of the Convention. 59.     The Government, while relying essentially on the argument that the complaint had been lodged out of time, replied that Mr Dikme's arrest and detention had been justified by the serious nature of the offences of which he was suspected. They explained that the measures had been taken as part of an inve