CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 14 mai 2002

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Palm ,   Mr   J. Makarczyk ,   Mr   R. Türmen ,   Mrs   V. Strážnická ,   Mr   J. Casadevall ,   Mr   R. Maruste , judges , and Mr M. O’Boyle , Section Registrar , Having regard to the above application lodged with the European Commission of Human Rights on 4 December 1998, Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court, Having deliberated, decides as follows: THE FACTS The applicants, Hayrettin Sevgin and Cevat İnce, are Turkish nationals, who were born in 1960 and 1967 respectively and are currently detained in Diyarbakır. They are represented before the Court by Mrs Meral Beştaş and Mr Mesut Beştaş, lawyers practising in Diyarbakır. A.     The circumstances of the case The facts of the case, as submitted by the applicants, may be summarised as follows. 1.     Regarding the first applicant On 16 November 1993 the applicant was taken into custody by the members of the security forces from the Sağırsu Gendarmerie Command. In a report drafted by the gendarmes and signed by the applicant on the same day it is stated that the applicant was taken into custody on the basis of evidence found on the body of a terrorist. In his statement taken on 30 November 1993 the applicant confessed in detail to his involvement in the activities of the PKK. On 1 December 1993 the applicant was questioned by the Siirt Public Prosecutor and denied his involvement in the activities of the PKK. On the same day the applicant was brought before the Siirt Magistrates Court ( Sulh Ceza Mahkemesi ). He reiterated that he had no involvement in the activities of the PKK. The court ordered the applicant’s detention on remand. In a letter dated 2 December 1993 and addressed to the Siirt Criminal Court of First Instance ( Asliye Ceza Mahkemesi ) the applicant alleged that he had been severely tortured for 18 days while in police custody. He stated that he had been blindfolded and had been told to strip. He had been severely beaten and strung up by his arms in the form of torture known as “Palestinian hanging”. On an unspecified date the Siirt Public Prosecutor issued a decision based on lack of jurisdiction ( görevsizlik kararı ) as the charges against the applicant fell within the competence of the state security court. On 21 December 1993 the public prosecutor at the Diyarbakır State Security Court filed a bill of indictment with the Diyarbakır State Security Court against the applicant along with other accused. The public prosecutor accused the applicant of having engaged in acts aimed at the separation of a part of the territory of the State. The public prosecutor requested that the applicant be convicted and sentenced under Article 168/2 of the Turkish Criminal Code and Article 5 of the Prevention of Terrorism Act. At a hearing on 24 February 1994 the applicant rejected the accusations against him and stated that he had signed his statement under duress. The court refused the applicant’s request of release pending trial. The court further decided to join the applicant’s case with the second applicant’s pending case as both cases raised similar issues. 2.     Regarding the second applicant On 24 October 1993 the applicant was taken into custody in the course of an investigation carried out by the Siirt Gendarmerie Command. In a report drafted on the same day by the gendarmes and signed by the applicant it is stated that the applicant was taken into custody in the village of Koçlu in the course an investigation. In his statement taken on 3 November 1993 the applicant confessed in detail to his involvement in the activities of the PKK.   On 5 November 1993 the applicant was brought before the Siirt Public Prosecutor. During his questioning the applicant accepted having possessed a rifle, a hand grenade and bullets. The applicant denied his involvement in the activities of the PKK. On the same day the applicant was brought before the Siirt Magistrates Court. He reiterated that he had no involvement in the activities of the PKK. The court ordered the applicant’s detention on remand. In a letter dated 30 November 1993 and addressed to the Siirt Criminal Court of First Instance the applicant alleged that he had been severely tortured while in police custody. The police officers had threatened him with torture in order to make him accept the allegations when he was brought before the public prosecutor and the Magistrate’s Court. He requested his release, as he was innocent of the charges against him. On an unspecified date the Siirt Public Prosecutor issued a decision based on lack of jurisdiction ( görevsizlik kararı ) as the charges against the applicant fell within the competence of the state security court. On 6 December 1993 the public prosecutor at the Diyarbakır State Security Court filed a bill of indictment with the Diyarbakır State Security Court against the applicant along with other accused. The public prosecutor accused the applicant of having engaged in acts aimed at the separation of a part of the territory of the State. The public prosecutor requested that the applicant be convicted and sentenced under Article 168/2 of the Turkish Criminal Code and Article 5 of the Prevention of Terrorism Act. 3.     Further proceedings At a hearing on 29 March 1994 the Diyarbakır State Security Court requested that a ballistic examination be carried out by the Diyarbakır Forensic Institute concerning the rifle found in the possession of the second applicant. The court also rejected the second applicant’s request of release pending trial. The court finally served a summons on the applicants for the following hearing, which was scheduled for 10 May 1994. At the hearings on 10 May 1994, 21 June 1994, 28 July 1994, 20   September 1994, 24 November 1994, 26 January 1995, 14 March 1995, 4 May 1995 and 5 July 1995 the Diyarbakır State Security Court was unable to give a decision as the relevant ballistic report had not been received. The court rejected the applicants’ requests of release pending trial in each hearing because of the serious nature of the alleged offences and the state of the evidence. On 25 September 1995 the court received the ballistic report. At a hearing on 21 November 1995 the public prosecutor submitted his opinion on the merits. The public prosecutor proposed that the applicants be convicted and sentenced under Article 168/2 of the Turkish Criminal Code and Article 5 of the Prevention of Terrorism Act. The court rejected the applicants’ request of release pending trial because of the serious nature of the alleged offences and the state of the evidence. The Diyarbakır State Security Court was unable to give a decision at the hearings on 5 December 1995, 26 December 1995 and 27 February 1996 as the prison authorities had failed to bring the first applicant to the court. On 26 March 1996 the Diyarbakır State Security Court convicted the applicants of engaging in acts aimed at the separation of a part of the territory of the State. The court sentenced them to twelve years and six months’ imprisonment under Article 168/2 of the Turkish Criminal Code and Article 5 of the Prevention of Terrorism Act. The decision was given in the absence of the first applicant.   The applicants lodged an appeal with the Court of Cassation against the decision of the Diyarbakır State Security Court. On 12 May 1997 the Court of Cassation quashed the decision of 26   March 1996 on the ground that the Diyarbakır State Security Court had convicted the first applicant in his absence and that he had thereby been deprived of his right to submit his final defence to the court. On 1 July 1997 the Diyarbakır State Security Court served a summons on the applicants for the following hearing, which was scheduled for 27 August 1997. The Diyarbakır State Security Court was unable to give a decision because the prison authorities had failed to bring the applicants to the court for the hearings held on 27 August 1997, 7 October 1997 and 18 November 1997. At the hearings on 27 January 1998, 10 March 1998, 5 May 1998, 16   June 1998, 5 August 1998, 1 October 1998 and 3 November 1998 the court was again unable to continue the proceedings because the other accused, who were being tried with the applicants, had failed to appear before the court. On 6 April 1999 the Diyarbakır State Security Court convicted the applicants of engaging in acts aimed at the separation of a part of the territory of the State. The court sentenced the applicants to twelve years and six months’ imprisonment under Article 168/2 of the Turkish Criminal Code and Article 5 of the Prevention of Terrorism Act. On 9 November 1999 the Court of Cassation upheld the decision of the Diyarbakır State Security Court.   COMPLAINTS The applicants complain under Article 3 of the Convention that they were tortured while in police custody. They submit that the national authorities did not initiate an investigation into their complaints of torture. The applicants complain under Article 5 § 1 (c) of the Convention that their detention on remand could not be justified as being necessary to prevent their committing an offence or fleeing after having done so. They claim that they had no intention of absconding or engaging in criminal activities. The applicants complain under Article 5 § 2 of the Convention that they were not informed of the reasons of their arrest. The applicants complain under Article 5 § 3 of the Convention that they were detained on remand for an excessive length of time. The applicants complain under Article 5 § 4 of the Convention that their requests for release pending trial received no serious consideration by the Diyarbakır State Security Court. The applicants complain under Article 6 § 1 of the Convention that they were not tried by an independent and impartial tribunal. The applicants complain under Article 6 § 2 of the Convention that their right to be presumed innocent was violated because they were detained on remand for an excessive length of time. The applicants complain under Article 6 § 3 (d) of the Convention that they were deprived of their right to examine the prosecutor’s witnesses and evidence against them as a result of the failure of the authorities to bring them to the courtroom for the hearings. They submit that the Diyarbakır State Security convicted them in their absence which resulted in the prolongation of the proceedings. The applicants complain under Article 13 of the Convention, in conjunction with the above Articles, that they had no effective domestic remedies in Turkish Law. The applicants complain under Article 14 of the Convention, in conjunction with the above Articles, that they were subjected to discrimination on account of their ethnic origin. Lastly, the applicants complain under Article 1 of Protocol No. 1 to the Convention that they were prevented from working during the time they had been detained on remand as a result of which they incurred financial loss.         THE LAW 1.     The applicants complain under Article 3 of the Convention that they were tortured while in police custody. They submit that the national authorities did not initiate an investigation into their complaints of torture. The applicants complain under Article 5 § 3 of the Convention that they were detained on remand for an excessive length of time. The applicants complain under Article 5 § 4 of the Convention that their requests for release pending trial received no serious consideration by the Diyarbakır State Security Court. The applicants complain under Article 6 § 1 of the Convention that they were not tried by an independent and impartial tribunal. The applicants complain under Article 6 § 2 of the Convention that their right to be presumed innocent was violated because they were detained on remand for an excessive length of time. The applicants complain under Article 6 § 3 (d) of the Convention that they were deprived of their right to examine witnesses and evidence against them as a result of the failure of the authorities to bring them to the courtroom for the hearings. They submit that the Diyarbakır State Security convicted them in their absence which resulted in the prolongation of the proceedings.     The applicants complain under Article 13 of the Convention, in conjunction with the above Articles, that they had no effective domestic remedies in Turkish Law. The applicants complain under Article 14 of the Convention, in conjunction with the above Articles, that they were subjected to discrimination on account of their ethnic origin. The Court considers that it cannot, on the basis of the file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 48 § 2 (b) of the Rules of Procedure, to give notice of them to the respondent Government.   2.     The applicants also complain under Article 1 of Protocol No. 1 to the Convention that they were prevented from working during the time they had been detained on remand as a result of which they incurred financial loss. The Court considers that the Convention does not provide, under Article   1 of Protocol No. 1 to the Convention, a right to work or a right to compensation as a result of being detained on remand for an excessive period of time.   However, the Court recalls that since it is the master of the characterisation to be given in law to the facts of the case, it does not consider itself bound by the characterisation given by an applicant or a government. A complaint is characterised by the facts alleged in it and not merely by the legal grounds or arguments relied on (see the Guerra v. Italy judgment of 19 February 1998, Reports of Judgments and Decisions 1998-I, p. 223, § 44). Accordingly, the Court concludes that the applicants’ complaint under this head should be considered to Article 5 § 5 of the Convention which provides a right to compensation to a victim of arrest or detention in contravention of the provisions of Article 5 of the Convention. Having regard to the conclusion reached above the Court considers that it cannot, on the basis of the file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 48 of § 2 (b) of the Rules of Procedure, to give notice of them to the respondent Government. 3.     The applicants complain under Article 5 § 1 (c) of the Convention that their detention on remand could not be justified as being necessary to prevent their committing an offence or fleeing after having done so. They claim that they had no intention of absconding or engaging in criminal activities. The Court recalls that Article 5 § 1 (c) of the Convention read in conjunction with Article 5 § 3 means, on the one hand, that every person whom “it is reasonably considered necessary to prevent ... committing an offence” may be arrested or detained only “for the purpose of bringing him before the competent authority” and, on the other hand, that once a person is arrested or detained he shall be brought before a judge and “shall be entitled to trial within a reasonable time” (see the Lawless v. Ireland (No. 3) judgment of 1 July 1961, Series A no. 3 , p. 52, § 14). In the instant case the Court observes that the applicants complained that the decision taken by the national judge as to their detention on remand could not be justified under Article 5 § 1 (c) of the Convention. The Court notes that the applicants were taken into custody on 16   November 1993 and 24 October 1993 respectively on the basis of evidence found on the body of a terrorist and in the course of an investigation carried out against the members of the PKK. These elements on their own are sufficient to support the conclusion that there was “reasonable suspicion” for the applicants’ arrest. Furthermore, the applicants were brought before a competent authority within the meaning of Article 5 § 1 (c) the Convention after their arrest. Accordingly, the facts disclose no appearance of a violation of Article 5 § 1 (c) of the Convention. It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention. 4.     The applicants complain under Article 5 § 2 of the Convention that they were not informed of the reasons of their arrest. The Court notes that Article 5 § 2 of the Convention 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 (see, the Van der Leer judgment of 21   February 1990, Series A no. 170, p. 13, § 28 and the Fox, Campbell and Hartley judgment of 30 August 1990, Series A no. 182, § 32). In the instant case it seems that the applicants were informed of the reasons of their arrest having regard to the fact that they both signed the reports drafted by the gendarmes at the time of their arrest. Both reports clearly indicate that the applicants were taken into custody in the course of investigations carried out against the members of the PKK. The Court, therefore, concludes that the applicants were sufficiently informed of the reasons of their arrest. It follows that this part of the application is also manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.    For these reasons, the Court by a majority Decides to adjourn the examination of the applicants’ complaints under Articles 3, 5 §§ 3, 4 and 5, 6 §§ 1, 2 and 3 (d), 13 and 14 of the Convention; Declares inadmissible the remainder of the application.     Michael O’Boyle   Nicolas Bratza   Registrar   President