AS TO THE ADMISSIBILITY OF
Application No. 26396/95
by C.T.U.
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 5 December 1990
by C.T.U. against Turkey and registered on 6 February 1995 under file
No. 26396/95;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, born in 1950, is a Turkish citizen and resident
in Ankara.
The facts of the present case, as submitted by the applicant, may
be summarised as follows.
On 26 February 1982 the applicant was arrested on account of his
membership of an association, the Baris Dernegi. He was released on
24 December 1982.
On 14 November 1983 the applicant was arrested again on account
of the same charges. On 17 February 1986 he was released. Therefore,
he was held in detention for 37 months on two occasions.
On 22 December 1987 the applicant was acquitted by the istanbul
Martial Law Court.
On 16 March 1988 the applicant filed a suit at the Ankara Assize
Court. He requested that 12,000,000 Turkish liras of pecuniary and
40,000,000 Turkish liras of non-pecuniary damage be granted to him
because of his detention for 37 months.
On 26 September 1989 the Ankara Assize Court granted 12,668,004
Turkish liras to the applicant. On 19 January 1990 the Court of
Cassation quashed the decision dated 26 September 1989.
On 14 March 1990, following the Court of Cassation's decision,
the Ankara Assize Court granted 2,086,768 liras of pecuniary and
5,000,000 liras of non-pecuniary damage to the applicant.
The applicant appealed against the Ankara Assize Court's decision
dated 14 March 1990.
On 15 June 1990 the Court of Cassation dismissed the applicant's
appeal and upheld the judgment delivered by the Ankara Assize Court.
COMPLAINTS
The applicant complains under Article 5 para. 5 of the Convention
that he was held in detention on remand for 37 months and that he was
awarded insufficient compensation following his acquittal.
THE LAW
The applicant alleges a violation of Article 5 para. 5 (Art. 5-5)
of the Convention as regards the refusal of his request for more
compensation.
Article 5 para. 5 (Art. 5-5) of the Convention provides as
follows.
"Everyone who has been the victim of arrest or detention in
contravention of the provisions of this Article shall have
an enforceable right to compensation."
The Commission recalls that under Article 5 para. 5 (Art. 5-5)
of the Convention the right to compensation for any material or moral
damage sustained as a result of a detention is plainly conditioned on
a breach of one of the paragraphs of Article 5 (Art. 5). It follows
that the Commission cannot consider an applicant's claim exclusively
based on Article 5 para. 5 (Art. 5-5) unless a breach of Article 5
paras. 1 to 4 (Art. 5-1, 5-2, 5-3, 5-4) has been established either
directly or in substance (No. 7950/77, Dec. 4.3.80, D.R. 19, p. 215).
The Commission notes that the applicant was held in detention for
37 months between 1982 and 1986. However, Turkey has recognised the
competence of the Commission to examine applications concerning facts
which occurred after 28 January 1987. The Commission is therefore
prevented from proceeding directly to an examination of the applicant's
complaint based on his detention on remand as it is outside its
competence ratione temporis.
The Commission observes that, while the applicant was acquitted
on 22 December 1987 and even granted compensation for his detention on
14 March 1990, the Turkish courts did not make any finding of a
violation of Article 5 (Art. 5) of the Convention. Moreover, the
Commission recalls that the Convention does not guarantee a general
right to compensation, for detention of an accused, following his
acquittal.
An examination of the facts does not disclose any appearance of
a breach of Article 5 paras. 1 to 4 (Art. 5-1, 5-2, 5-3, 5-4) of the
Convention. Therefore, Article 5 para. 5 (Art. 5-5) of the Convention
is not applicable in the present case.
It follows that the application is outside the competence of the
Commission ratione materiae and must accordingly be rejected as being
incompatible with the provisions of the Convention, within the meaning
of Article 27 para. 2 (Art. 27-2).
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.-T. SCHOEPFER J.-C. GEUS
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy