THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Applications nos. 29918/96, 29919/96 and 30169/96
by Sinan TANRIKULU, Servet AYHAN and Fırat ANLI
against Turkey

The European Court of Human Rights (Third Section), sitting on 24 February 2005 as a Chamber composed of:

MrB.M. Zupančič, President,
MrJ. Hedigan,
MrsM. Tsatsa-Nikolovska,
MrV. Zagrebelsky,
MrE. Myjer,
MrDavid Thór Björgvinsson, judges,
MrF. Gölcüklü, ad hoc judge,
and Mr V. Berger, Section Registrar,

Having regard to the above applications lodged with the European Commission of Human Rights on 25 August 1995, 25 August 1995 and 4 September 1995 respectively,

Having regard to the Commission's partial decisions of 14 October 1996 and 24 June 1996 respectively,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

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, Mr Sinan Tanrıkulu, Mr Servet Ayhan and Mr Fırat Anlı, are Turkish nationals, who were born in 1966, 1973 and 1971 respectively, and live in Diyarbakır. The first and the third applicant are lawyers. The first and the second applicants were members of the Human Rights Association and the third applicant was the president of the HADEP Diyarbakır provincial headquarters at the time of the events.

The first applicant is represented before the Court by Mr Tim Otty, a lawyer practising in London, the second applicant is represented before the Court by Mr Mark Muller, a lawyer practising in London, and the third applicant is represented before the Court by Mr Ahmet Kalpak, a lawyer practising in Diyarbakır.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows. The arrest and detention of the applicants

On 27 February 1995 the public prosecutor at the Diyarbakır State Security Court (“ the State Security Court”) issued a warrant authorising the search of the provincial headquarters of the HADEP (Halkın Demokrasi Partisi-People's Democracy Party) and the Diyarbakır branch of the Human Rights Association, following information received by the gendarmes that there was a meeting related to the PKK.

The search was carried out on the same day and the applicants were taken into custody together with eleven other persons by the police officers. According to the report drafted by the gendarmerie on 28 February 1995, at the HADEP headquarters, the police seized eight ERNK (National Liberation Front of Kurdistan) and PKK flags, a PKK emblem, sixty-five books and nine VHS videotapes about the PKK, seven audio tapes and documents addressed to the General Secretary of the European Parliament. They also found a pistol on one of the suspects.

The applicants were then brought before a doctor for a medical examination. According to the medical report of 27 February 1995, the applicants did not bear any physical signs of ill-treatment. They were then handed over to the gendarmes at the Diyarbakır Provincial Gendarmerie Command.

The applicants allege that they were subjected to various forms of ill‑treatment during their detention.

The first applicant alleges that he was blindfolded, kept in cold, deprived of adequate food and drink and made to listen to loud music. He claims of having his genitals squeezed, being regularly beaten, prohibited to go to the toilette more then once a day, hosed with pressurized water.

The second applicant alleges, in addition to the aforementioned treatments, that he had been hung upside down in such a way that his head would hit the floor and that his nose would bleed. He further claims that his jaw was seriously injured.

The third applicant alleges that he was blindfolded, beaten, insulted and deprived of adequate food and drink. He claims that he suffered from his kidneys and lungs during this time.

On 9 March 1995 the applicants were brought before a doctor for a medical examination. According to the medical reports, the applicants did not bear any physical signs of ill-treatment.

On the same day, the applicants were brought before the public prosecutor and the State Security Court.

Before the court, the first applicant denied his statements given in custody and acknowledged his statements given before the public prosecutor. He contended that his statements in custody contained words which he did not say.

Before the court, the second applicant denied his statements given in custody and acknowledged his statements given before the public prosecutor. He stated that he was working in the canteen of the Oryıl Tabibler housing complex where the Human Rights Association was and that he would bring tea to those who were working there. He claimed that he was not a member of the association and had no idea why he was also taken into custody together with the other co-suspects.

Before the court, the third applicant denied his statements taken in police custody and reiterated his statements made before the public prosecutor. He contended that his statements in police custody contained words which he did not say.

The Diyarbakır State Security Court ordered their detention on remand.

2. Criminal proceedings against the applicants

On 22 March 1995 the public prosecutor at the State Security Court filed an indictment with the latter accusing the applicants and the other suspects of having done propaganda on behalf of the PKK. He requested that the applicants and other detainees be convicted and sentenced for membership of an illegal organisation under Article 168 § 2 of the Criminal Code.

On 1 May 1995 the applicants appeared before the State Security Court.

Before the court, the first applicant denied the charges against him. He was read his statements given in custody. The applicant stated that these statements were not his.

Before the court, the second applicant denied the charges against him. He reiterated that he was working in the canteen of the building where the Human Rights Association was situated and had been taken into custody only because of this reason. He denied his statements given in custody and stated that he had given them under duress.

Before the court, the third applicant denied the charges against him and stated that his statements in custody had been taken under duress.

The State Security Court, taking into account the charges and the evidence against the applicants, ordered their release pending trial.

From 1 May 1995 until 8 April 1996 the State Security Court held six hearings.

The third applicant attended the hearing held on 25 March 1996 and requested his acquittal.

On 8 April 1996 the State Security Court acquitted the applicants of all charges. It held that the materials found in the search could have been placed there by anyone and that apart from their statements in custody, which the applicants claimed to have given under duress, there was no evidence to convict them.

On 16 April 1997 the Court of Cassation upheld the aforementioned judgment.

3. Civil proceedings brought by the first applicant

On 26 November 1997 the first applicant filed a petition with the Diyarbakır Assize Court under Law no. 466 pertaining to the payment of compensation to persons unlawfully arrested or detained. The applicant requested compensation in respect of non-pecuniary damage to compensate the periods he spent in custody.

On 30 December 1997 the Diyarbakır Assize Court awarded the applicant an amount of compensation in respect of non-pecuniary damage to compensate the periods he spent in custody and detention on remand.

On 29 September 1998 the Court of Cassation upheld the judgment of the first-instance court.

4. Criminal proceedings against the policemen

On an unspecified date the authorities commenced an investigation into the first and the third applicants' allegations on ill-treatment following their complaint before the European Commission of Human Rights.

On 11 March 1999 the Diyarbakır Provincial Administrative Council decided that no criminal proceedings should be instituted against the nine police officers due to lack of evidence and the subsequent death of one of them.

On 31 May 2001 the Supreme Administrative Court decided to strike off the case since the statutory time-limit had elapsed.

B. Relevant domestic law and practice

A full description of the relevant domestic law and practice, at the time of the events, can be found in Elçi and Others v. Turkey (nos. 3145/93 and 25091/94, §§ 568-595, judgment of 13 November 2003).

According to domestic law, the gendarmerie and the police force have the same competence in respect of their judicial duties. Pursuant to Law no. 2803 concerning the organisation, duties and powers of the gendarmerie, they do not have competence in areas where there is an ordinary police force. Article 10 §§ 2 and 3 of the above-cited law stipulates that the gendarmerie can cooperate and coordinate their actions with the other security forces and in cases where the gendarmerie and the police force consider that they will be or might be insufficient, they can be temporarily replaced, by the high administrative authority, in each others duty zones.

COMPLAINTS

The applicants complain under Article 3 of the Convention that they were subjected to ill-treatment by the gendarmes while in custody.

The applicants contend under Article 5 § 1 (c) of the Convention that their arrest and detention was unlawful. In this connection, the first and the third applicants submit that criminal investigations against lawyers must be carried out by a public prosecutor according to Articles 58 and 59 of the Advocacy Law, whereas they were interrogated by the gendarmes. The third applicant maintains that criminal investigations against political party administrators must be carried out by a public prosecutor pursuant to domestic law. The first and the second applicants assert that they had been detained and interrogated by the gendarmes despite the presence of ordinary police force in Diyarbakır.

The applicants complain under Article 5 § 3 of the Convention that the length of their detention in custody was excessive.

The first and the second applicants submit under Article 6 of the Convention that they were not tried by an independent and impartial tribunal since the judge sitting on the bench treated them as terrorists when they were brought before it on 9 March 1995.

The first and the second applicants contend under Article 10 of the Convention that they were prosecuted for communicating with foreign persons and institutions.