AS TO THE ADMISSIBILITY OF
Application No. 23145/93 Application No. 25091/94
introduced by Tahir ELÇi and others by Arzu and imam SAHiN
against Turkey against Turkey
The European Commission of Human Rights sitting in private on
2 December 1996, the following members being present:
M. S. TRECHSEL, President
Mme G.H. THUNE
Mme J. LIDDY
MM. G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
H. DANELIUS
L. LOUCAIDES
M.P. PELLONPÄÄ
B. MARXER
B. CONFORTI
I. BÉKÉS
J. MUCHA
D. SVÁBY
A. PERENIC
C. BÎRSAN
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
M. VILA AMIGÓ
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 3 December 1993
by Tahir Elçi (originally in the name of Ömer Elçi) and others against
Turkey, registered on 21 December 1993 under file No. 23145/93, and the
application introduced on 28 April 1994 by Arzu and Imam Sahin against
Turkey and registered on 8 September 1994 under file No. 25091/94;
Having regard to :
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on 16
June and 22 July 1994 (23145/93) and 18 November 1994 (25091/94)
and the observations in reply submitted by the applicants on 10
August and 26 September 1994 (23145/93) and 18 January
1995 (25091/94);
- the parties' oral submissions at the hearing on 2 December 1996;
Having deliberated;
Decides as follows:
THE FACTS
The present applications have been brought on behalf of sixteen
lawyers, arrested and detained under emergency law in Diyarbakir on
various dates in November and December 1993 in South East Turkey. As
to Tahir Elçi, the application was originally introduced by his brother
Ömer Elçi in his own name. However, it was indicated in the application
that it was brought on behalf of Tahir Elçi and his representatives
have subsequently declared that the latter should be regarded as the
applicant.
The applicants, whose names appear on the list annexed to this
decision, are represented before the Commission by Professor Kevin
Boyle and Ms. Françoise Hampson, both of the University of Essex,
England.
The facts of the present case, which are in dispute between the
parties, may be summarised as follows.
I. The applicants state that the following occurred.
- Case of Tahir Elçi
On 23 November 1993 at 9:20 hours, two plain-clothes policemen
came to the applicant Tahir Elçi's office in Diyarbakir. After being
searched the applicant was taken by the policemen to the police
station.
At 10.00 hours on the same day, six policemen, including the two
who had visited the office earlier in the morning, returned to the
office together with the applicant. The policemen seized the
applicant's files and a collection of newspapers (Özgür Gündem, Özgür
Halk and Rawsan, pro-Kurdish newspapers) belonging to the applicant.
The applicant signed a proces-verbal concerning his provisional
detention.
At 11.00 hours on the same day, the policemen, accompanied by the
applicant, went to the applicant's home. They searched his home but
seized nothing. The policemen then took the applicant back to the
police station.
On 25 November 1993, the applicant's brothers were informed by
the prosecuting authorities and by a captain of the gendarmerie that
the applicant had been detained on 24 November 1993 at the gendarmerie
of Cizre and had then been transferred to the police station in
Diyarbakir.
Subsequently, the applicant was held in detention incommunicado.
He was released on bail on 10 December 1993.
As to the events during the detention period, the following
information has been provided.
During his detention, the applicant was tortured because he had
filed applications with the Commission. During his interrogation,
correspondence and documentation relating to these applications were
in the possession of his interrogators and he was tortured because of
his work in bringing the complaints of his clients before the
Commission. His interrogators assaulted and abused him particularly
over a case which concerned the destruction of the village of Ormaniçi.
He was stripped naked and slapped around and his testicles were
squeezed. He was threatened that he would be killed if he looked
further into cases of disappearances and evacuated villages. He also
suffered other ill-treatment directed at making him sign a statement
which he refused to do.
Since his release on bail on 10 December 1993 and despite his
requests to the police through lawyers acting on his behalf, he has not
had his case-files, including his correspondence with the Commission,
returned to him. His legal practice has been disrupted. He has moved
from Cizre to Diyarbakir.
- Case of Arzu and imam Sahin
On 7 December 1993, imam Sahin was taken into custody by
policemen from the Anti-Terror Department in istanbul, when he was to
attend a hearing before the State Security Court. He was taken to the
Anti-Terror Department, and after being held there for a certain
period, he was taken to his house where a search was carried out, but
no offensive object was found. His wife Arzu Sahin, who was at home,
was also taken into custody, and they were both blindfolded and put
into a cell at the Security Directorate. On 11 December 1993 they were
taken to Diyarbakir by plane and, upon their arrival there, to the
Diyarbakir Intelligence and Interrogation Centre.
At the Interrogation Centre, imam Sahin was forced to strip
completely naked. He was blindfolded and subjected to ill-treatment
such as "falaka", cold water torture, squeezing of genitals,
suspension, electric shocks, foul language, and threats against his
wife were also made to him during the 14 days he was held for
interrogation. During the period he was held in custody, he was only
given a quarter of a loaf (about 200 g) of bread a day. He did not see
his wife during this time, nor did he know anything about her fate.
On the day he was to be brought before the court, he was taken
again for interrogation in the middle of the night. They took hold of
his hand and made him scribble blindfolded on some papers. He does not
know what these papers were.
Arzu Sahin was also detained at the Intelligence Interrogation
Centre and interrogated under duress. She was detained in conditions
similar to those of the other applicants with meagre rationing of bread
once a day and minimal access to toilet facilities.
On 21 December 1993, imam and Arzu Sahin were brought before the
examining judge and remanded in custody by the examining judge on the
claim that a person by the name of Abdülhakim Güven, who wished to
benefit from the Remorse Law, had incriminated them. However, they do
not know the person in question and have had no relations with him.
In the indictment issued on 22 December 1993 Arzu Sahin has been
charged, inter alia, with "drawing up documents belittling the Turkish
State and faxing them to Human Rights Organisations in European
countries".
imam and Arzu Sahin were released on bail on 17 February 1994.
- Case of Nevzat Kaya
On 18 November 1993, three persons from the Diyarbakir Security
Directorate, Anti-Terror Department, searched the office of the
applicant, drew up a report and signed it together with the applicant.
In the Diyarbakir Security Directorate, the officers told the
applicant to hand over all possessions and recorded these one by one.
Later they took him to the hospital for an examination, after which
they handed him to JITEM (Gendarmerie Intelligence and Anti-Terror
Department).
The JITEM members blindfolded the applicant after putting him
into a vehicle. The journey lasted about 25-30 minutes. The gendarmes
were asking the applicant what connections he had with the PKK and were
slapping him around. They were saying that they would kill him if he
did not speak. The applicant said that he had no organisational
connections with the PKK but that there were some PKK defendants among
his clients.
Later the gendarmes took the applicant to an unknown place. After
an identity check, they took him to a room and told him to squat down
on the floor. On the evening of the following day, the gendarmes took
the applicant for interrogation. They claimed that he was the PKK's
lawyer and told him to explain his position. The applicant told them
that he had no relations with the PKK and that he acted with the
authority invested in him by his job as a lawyer. The gendarmes started
to beat him up, particularly on the head, stomach and feet. They then
brought in someone who claimed to be Abdülhakim Güven. This person said
that the applicant organised the lawyers. He then swore at the
applicant and, together with the gendarmes, beat him up. The gendarmes
then took the applicant to a place where they sprayed him with cold
water. From the voices in that room, the applicant realised that his
colleagues Sinasi Tur, Hüsniye Ölmez, Sabahattin Acar, Meral Danis
Bestas and Mesut Bestas were there. They were all blindfolded and were
on the floor. They were given a loaf of bread a day to eat. The
applicant was permitted to go to the toilet twice a day. On the
following day he was taken back to the interrogation place again and
the ill-treatment was repeated. The gendarmes made threats involving
his sexual organs.
On the seventh or eighth day of the custody, the applicant and
his friends decided to go on a hunger strike which lasted two and a
half days. On the night of 8 December 1993, the gendarmes called the
detainees one by one and told them to sign a number of documents; they
then started the ill-treatment sessions again. The applicant did not
sign in the first session. In the second session, when Fuat Hayri Demir
said that everyone else had signed the statements, he was forced to
sign some documents drawn up by the gendarmes without reading them. On
10 December 1993, the detainees were brought before the Court. The
forensic doctor, frightened by the gendarmes, did not mention torture
in his report.
- Case of Sinasi Tur
On 15 November 1993, the applicant was taken into custody. He was
interrogated during 26 days at the Diyarbakir Provincial Gendarmerie
Regiment Headquarters.
A former PKK member who had confessed to his activities was
brought before him in custody and made accusations against the lawyers
who were then constrained to admit to these. The allegations focused
on the exchange of notes between different prisons concerning the PKK
and organic relations with this organisation. The applicant was forced
to sign prepared statements.
On 10 December 1993, the applicant was released by the judge who
did not take into account the statements made in the gendarmes'
station. Only three of the lawyers were remanded in custody.
The prosecution appealed and requested the remand of the six
lawyers who had supposedly been caught with incriminating notes on
them. The Court acquiesced with this request and decided to remand the
lawyers after their release. Later, the appeal against the remand of
two of the lawyers was accepted. The trial is ongoing at the State
Security Court No. 3.
- Case of Sabahattin Acar
On 15 January 1993, at about 19:15 hours, the applicant answered
the door bell and was told to open the door to the police. In order to
check that the persons calling on him were really from the police, he
called the State Security Court Chief Prosecutor. Three hours later,
a commissioner he knew came from the Diyarbakir Security Directorate
and the applicant opened the door. About 15 policemen, gendarmes and
Special Team members entered his flat and conducted a search.
The applicant was taken from his house by gendarmes together with
some of his books, cassettes and articles. He was blindfolded on the
way, and taken to the Gendarmes Regiment Headquarters Interrogation
Centre.
He was locked in a dark cell at the centre. He was only given a
blanket to use as a bed in the damp cell where there was no heating
device and the outside temperature was below zero. He was taken to the
toilet twice a day, once in the morning at 06:00 hours and once in the
evening at 18.00 hours.
On the third day, the applicant was taken to another place for
interrogation. He was constrained to admit to charges laid against him.
The interrogators asked him in particular whether he had any relations
with the PKK, whether he had attended hearings before the State
Security Court concerning PKK militants and whether he had prepared
reports on human rights. Then Abdülhakim Güven, the former PKK member
who had benefited from the Remorse Law, was brought before him. The
applicant was told to admit to his accusations and, when he refused,
was taken outside, stripped naked, threatened to be taken into the
hills and killed. The applicant finally signed the report, blindfolded.
On the twenty-sixth day, he was brought before the State Security Court
Prosecutor. He was able to learn the contents of what he had signed
only then. He was being accused of a great many acts of which there had
been no mention during his interrogation. A remand order was issued
against him and he was sent to the Diyarbakir No. 1 E-Type Prison.
- Case of Niyazi Cem
He was taken into custody by five Anti-Terror Department
policemen in the corridors of the istanbul State Security Court on
23 November 1993 and taken to the Gayrettepe 1 Division building of the
police. His bag was searched thoroughly and, in the evening, he was
thrown into a cell where he was held for four days. On 26 November
1993, he was taken to the Bursa Osmangazi Detention Centre. On Saturday
evening (27 November) he was brought back to istanbul. On 28 November
1993 the applicant and a suspect from Bursa were taken to Diyarbakir
by plane and to JITEM.
He was blindfolded and for the first two days (i.e. 28 to 30
November) he was not interrogated. He was given a loaf of bread a day
and taken to the toilet twice. Until 30 November he did not know what
he was accused of. He was first interrogated on 1 December 1993 at
around 23.30 hours. They put three more bands over his eyes. They
accused him of having sent someone to join the PKK, of acting as a
courier between prisons, of organising relations with istanbul and
Europe, and of having contacts with the PKK's political branch as well
as with the Özgür Gündem and Özgür Halk newspapers.
The applicant replied that he had no relations with the PKK. They
swore at him, pulled his hair and hit him. Then Abdülhakim Güven was
brought in and he accused the applicant of acting as a liaison person
between prisons. The applicant claimed that Güven accused him so that
he could benefit from the Remorse Law and gave explanations concerning
the accusations made against him.
Until 7 December 1993, he was beaten, threatened, abused,
insulted, forced to listen to loud music and to sleep on a cold
concrete floor, all while being kept blindfolded.
In the evening of 8 December 1993, the interrogators tried to
make him sign a statement they had prepared without allowing him to
read it. In the end, the applicant and the lawyers Hüsniye Ölmez, Meral
Danis Bestas and Tahir Elçi did not sign and were beaten up again. On
9 December 1993 he was again told to sign and when he refused, he and
Tahir Elçi were taken to the toilet, stripped naked and tortured with
pressurised water. In the end, when he could not bear it any more, the
applicant started beating his head against the wall. The police then
took him out, made him put his clothes on and put him with his friends.
The next day all the applicants were brought before the court.
- Case of Selim Kurbanoglu
The applicant was taken into custody by gendarmes from his home
and taken blindfolded to the Interrogation Centre and put in a very
crowded cell where he was made to lie on the floor with only a blanket.
Many people came in and being blindfolded they tried to recognise each
other by their voices. That is how he found out that other lawyers he
knew were there with him. During the 21 days he was in custody, he was
beaten and kept blindfolded.
On 20 December 1993, he was brought before the Diyarbakir State
Security Court and he and 10 other lawyers were released. Four days
later arrest warrants were issued against them upon the prosecutor's
appeal against the Court's decision.
- Case of Meral Danis Bestas
The applicant and her husband were taken into custody in the
evening of 16 November 1993 while leaving the Diyarbakir State Security
Court. They were transported by car to what seemed like a large hall.
The applicant was put in a cell alone and was given a blanket. The cell
was extremely cold. Half an hour later she was taken to the
interrogation room and accused of being a courier. She replied that she
visited prisons because of her job. She was slapped twice and taken
back to her cell. In the evening of the following day, she was
interrogated again. This time she was told that she was the Human
Rights Association's secretary and worked for the PKK. For a whole week
she was questioned about her activities in the Association and
particularly about applications against Turkey made to the European
institutions. Two days before being brought before the Court, she was
taken from her cell in the middle of the night. She was given a pen and
told to sign some papers. She refused to sign without reading them,
whereupon she was taken somewhere else and threatened with torture.
She was stripped naked and subjected to pressurised water three times
for at least an hour each time until the day she was taken to the
Court.
During the 24 days she was in custody, she was allowed to go to
the toilet twice a day and was given a piece of bread once a day.
- Case of Mesut Bestas
On 16 November 1993, the applicant was arrested while leaving the
State Security Court with his wife at about 18.00 hours. They were
blindfolded and put in a vehicle. They were taken to the Interrogation
Centre and he was put in a cell and given a blanket. He was allowed a
slice of bread a day.
He was accused of being a courier for the PKK. The applicant
insisted that he was a lawyer who took on all kinds of cases. He was
frequently taken to the interrogation room, beaten up and subjected to
inhuman treatment. During the whole custody period (25 days), he was
forced to listen to very loud music and nationalistic songs.
The applicant was brought before the State Security Court
Prosecutor on 10 December 1993. The questions put to him were based on
the declarations of a former member of the PKK who had benefited from
the Remorse Law. He was first released and then arrested on the appeal
of the Prosecutor and held in detention on remand.
- Case of Vedat Erten
On 23 November 1993, the applicant was taken into custody by the
gendarmes and was questioned about his reasons for taking political
cases. The applicant said that as a lawyer it was his duty and also
that not all his cases were political. He was made to strip naked,
abused, insulted, kicked and beaten up. He was forced to sign some
papers which, being blindfolded, he could not read. He signed these
papers on 8 December 1993. He was able to learn on the day he was
brought before the Court that accusations had been made against him by
Abdülhakim Güven. The applicant was released on 10 December 1993 by the
judge but a warrant was issued for his arrest on 14 December 1993 on
the appeal of the Prosecutor.
- Case of Baki Demirhan
The applicant was taken into custody on 9 November 1993 after a
hearing at the Diyarbakir State Security Court buildings. During the
police custody, he was blindfolded. He was also threatened with
execution.
- Case of Arif Altinkalem
On 16 November 1993, the applicant was taken into custody by the
gendarmes after leaving the State Security Court at 16.30 hours
together with Meral Bestas, Mesut Bestas and Baki Demirhan. During the
police custody, he was blindfolded. He was also threatened with
execution.
- Case of Gazanfer Abbasioglu
On 30 November 1993, the applicant was arrested in the office of
the lawyer S.T. After a search in his office, the policemen took him
to the Security Directorate. During the police custody, he was held
in the same conditions as the other applicants and forced to sign a
false statement.
- Case of Fuat Hayri Demir
On 3 December 1993, the applicant was arrested by police from the
Diyarbakir Security Directorate as he was leaving the State Security
Court building at about 12.30 hours. During the police custody, he was
held in the same conditions as the other applicants and forced to sign
a false statement.
- Case of Hüsniye Ölmez
On 16 November 1993, the applicant was arrested by police from
the Diyarbakir Security Directorate. She was made to strip naked and
beaten up. She was forced to sign some papers which, being blindfolded,
she could not read.
II. The respondent Government state as follows.
Following the statements given by Abdülhakim Güven who was on
trial for being an active member of the terror organisation PKK, an
investigation had been instigated against the applicants.
The periods of the police custody and the periods of detention
upon the decision of the judge in relation with the applicants in
application No 23145/93 are as follows:
Periods of police
custody
Periods of detention
pon decision of a judge
Sinasi Tur
15.11.-10.12.1993
Sabahattin Acar
15.11.-10.12.1993
10.12.1993-17.02.1994
Meral D
nis Bestas
16.11.-10.12.1993
Mesut Bestas
16.11.-10.12.1993
15.12.1993-17.02.1994
Baki Demirhan
6.11.-10.12.1993
Arif Altinkalem
16.11k94
Niyazi
Cem
23.11.-10.12.1993
Gazanfer
bbasioglu
30.11.-10.12.1993
Fuat Hayri Demir
03.12.-10.12.1993
B
As a consequence of the pre
iminary investigation, the chiefCpublic prosecutor of the State Security Court of Diyarbakir filed aEcrimina
action with the indictment dated 22 December 1993 against 23Edefendants, including the lawyers listed as ap
licants in the present case and a few prison guardians.ants wereFcharged with the offence of being members of and acting for the terrorAorganisation PKK. S
me of them were suspected of having committedGserious crimes such as helping PKK terrorists to get weapons, smu
glingCin and out of prison proscribed items or instruments for committingDcrimes within prison such as
yanide or a knife for the PKK inmates,@receiving and implementing instructions from the PKK leaders
ip. them were released. The publicFprosecutor of the Diyarbakir State Security Court appealed against the
judge's decision. The State Security Court decided to rearrest six
applicants.
On 17 February 1994 all applicants had their first hearing before
the State Security Court. They were all released on the same day.
The criminal action before the State Security Court against the
23 defendants is still going on. The Court is expected to conclude the
case in early 1997.
III. The records submitted in the case show that, at the hearing on
17 February 1994 before the Diyarbakir State Security Court, most of
the applicants, i.e. Tahir Elçi, Arzu Sahin, imam Sahin, Kaya, Tur,
Acar, Cem, Kurbanoglu, Meral Danis Bestas, Mesut Bestas, Demirhan,
Abbasioglu, Demir and Ölmez, complained of torture, ill-treatment or
undue pressure having been exercised on them during their police
custody. Some of the applicants, including Erten and Altinkalem, had
already made similar complaints before the examining judge on 10
December 1993. Altinkalem also referred to such treatment at the
hearing before the State Security Court on 28 April 1994.
After the hearings on 17 February and 28 April 1994, the State
Security Court took certain procedural decisions in which, however, no
mention was made of the complaints relating to torture, ill-treatment
or undue pressure.
C. Relevant domestic law and practice
The Turkish Criminal Code makes it a criminal offence to subject
someone to torture or ill-treatment (Article 243 in respect of torture
and Article 245 in respect of ill-treatment, inflicted by civil
servants).
Complaints may be lodged, pursuant to Articles 151 and 153 of the
Code of Criminal Procedure, with the public prosecutor or the local
administrative authorities. The public prosecutor and the police have
a duty to investigate criminal offences reported to them, the former
deciding whether a prosecution should be initiated, pursuant to Article
148 of the Code of Criminal Procedure. A complainant may appeal against
the decision of the public prosecutor not to institute criminal
proceedings.
If the alleged author of a criminal offence is a State official
or civil servant, permission to prosecute must be obtained from local
administrative councils (the Executive Committee of the Provincial
Assembly). The local council decisions may be appealed to the Council
of State; a refusal to prosecute is subject to an automatic appeal of
this kind.
Pursuant to Article 1 of Law 466, a person who has been held in
police custody unlawfully or without justification may apply to the
local assize court for compensation within three months of the decision
not to prosecute.
Furthermore, any illegal act by civil servants, be it a criminal
offence or a tort, which causes material or moral damage may be the
subject of a claim for compensation before the ordinary civil courts.
Proceedings against the Administration may be brought before the
administrative courts, whose proceedings are in writing.
Pursuant to Article 128 to the Code of Criminal Procedure, a
person arrested and detained shall be brought before a justice of peace
within twenty-four hours, or, in the case of collective offences,
within four days. In the proceedings before the State Security Courts,
these periods are extended, pursuant to Article 30 of Law 3842 of 1
December 1992, to forty-eight hours in the case of individual offences,
and to fifteen days in the case of collective offences. Pursuant to the
same Article, in cases involving a state of emergency, the custody
periods in the proceedings before the State Security Courts are
doubled: four days in the case of individual offences, thirty days in
the case of collective offences.
COMPLAINTS
The applicants complain of violations of Articles 3, 5 and 8 of
the Convention and Article 1 of Protocol No 1. The applicant Tahir Elçi
has also made complaints which in substance relate to Article 3 in
connection with Article 25 of the Convention.
As regards Article 3 of the Convention, the applicants Tahir
Elçi, Tur, Acar, Cem, Kurbanoglu, Meral Danis Bestas, Mesut Bestas,
Erten and Ölmez complain, in their observations which were received
on 28 april 1994, of having been subjected to inhuman treatment or
torture during their detention. The other applicants complain of ill-
treatment in police custody in their final submissions received on 4
November 1996.
As regards Article 5 of the Convention, the applicants state that
their detention was arbitrary and lacked any justification. They
believe that the reason was the fact that they had defended before the
State Security Court persons who were accused of membership of the PKK,
and submit that such a ground is incompatible with Article 5, since it
is a fundamental principle that lawyers should be free to defend anyone
accused of an offence.
In application N° 25091/94 the applicants also complain in
substance of the length of their detention in police custody. In
application N° 23145/93, the applicants, in their submissions of
26 September 1994, also complain of the length of their detention in
police custody.
As regards Article 8 of the Convention, the five applicants Tahir
Elçi, Tur, Acar, Kurbanoglu and Cem complain of the search of their
houses and offices and the confiscation of their private belongings,
work files and private correspondence by the police and the public
prosecutor.
As regards Article 1 of Protocol No 1, these applicants complain
of interference with their property.
As regards Article 25 of the Convention, the applicant Tahir Elçi
alleges that the torture to which he was subjected was inflicted
because he had assisted clients in bringing cases before the
Commission. The applicants further point out that four of them - Acar,
Arzu Sahin, imam Sahin and Demirhan - have been charged with criminal
conduct on the basis of making applications to the Commission and that
the detention and treatment of all the applicants can have a "chilling
effect" on their willingness to bring cases before the Commission.
PROCEEDINGS BEFORE THE COMMISSION
Application No. 23145/93 was introduced on 3 December 1993 and
registered on 21 December 1993. Further observations were submitted on
28 April 1994. Application No. 25091/94 was introduced on 28 April 1994
and registered on 8 September 1994.
After a preliminary examination of the cases by the Rapporteur,
the Commission considered the admissibility of the applications on 14
April 1994 (23145/93) and on 9 September 1994 (25091/94). It decided,
pursuant to Rule 48 para. 2 (b) of the Rules of Procedure, to give
notice of the applications to the respondent Government and to invite
the parties to submit written observations on admissibility and merits.
The applications have been joined on 9 September 1994.
The Government's observations were submitted on 16 June and 22
July 1994 (23145/93) and 18 November 1994 (25091/94) to which the
applicants replied on 10 August and 26 September 1994 (23145/93) and
18 January 1995 (25091/94).
On 13 May 1996, the Commission decided to invite the parties to
make oral submissions on the admissibility of the applications at a
hearing. The hearing was fixed for 2 December 1994. Prior to the
hearing the applicants submitted additional material on 4 November
1996.
At the hearing on 2 December 1996, the Government were
represented by MM. A. Gündüz, S. Alpaslan, acting agents, MM. A. Akay,
M. Özmen, advisers, MM. F. Polat and A. Kaya, experts. The applicants
were represented by Mr. Timothy Otty, Ms. F. Hampson, Mr M. Müller and
Ms. A. Reidy, as counsel.
THE LAW
The applicants complain of their arrest and the circumstances of
their police custody. They allege violations of Articles 3, 5, 8 and
25 (Art. 3, 5, 8, 25) of the Convention and Article 1 of Protocol No
1 (P1-1).
As regards the applicants
The Government submit, in general, that the applications were
presented to the Commission by an organisation which has distorted the
facts. Most of the applications originating from the South East of
Turkey and coming before the Commission through that organisation, have
taken the form of hybrid applications which are not contemplated by the
Convention. The Government state that this amounts to a de facto change
of the Convention system.
The Commission considers these contentions of the Government as
an objection to admissibility raised on the basis of the abuse of the
right of petition. However, the Commission notes that the applications
have been lodged in due form on behalf of the applicants and that there
is no evidence that the applicants would wish to discontinue their
applications. Nor does the Commission find any other element which
would lead to the conclusion that there has been in the present case
an abuse of the right of petition.
The Government also contend, in particular, that Mr. Ömer Elçi,
the brother of the lawyer Tahir Elçi, cannot be presented as an
applicant in this case, since he was neither the victim nor the injured
party, and that there was nothing which had prevented Tahir Elçi from
introducing himself an application, had he wished to do so.
The applicants submit that the detained lawyers, including Tahir
Elçi, should be regarded as the applicants in this case.
The Commission recalls that when application N° 23145/93 was
introduced on 3 December 1993, there was no direct contact with Tahir
Elçi who was in police custody. Although Ömer Elçi brought the
application in his own name, it is clear that he acted on behalf of his
brother Tahir Elçi, which is also expressly indicated in the
application form. Consequently, the Commission, in its examination of
the application, will consider Tahir Elçi and not Ömer Elçi as one of
the applicants in this case.
As to Article 3 (Art. 3)
The applicants complain of having been submitted to torture, ill-
treatment or undue pressure during their periods of police custody.
Exhaustion of domestic remedies
The Government first submit that the applicants, before lodging
an application with the Commission, failed to comply with the
requirement under Article 26 (Art. 26) of the Convention in that they
did not exhaust domestic remedies with regard to their complaints under
Article 3 (Art. 3) of the Convention. They contend that the acts
alleged by the applicants would constitute punishable criminal offences
under Turkish criminal law. The applicants, all legal practitioners,
could therefore be expected to lodge insistent criminal complaints with
the public prosecutor or more appropriately with the office of the
Governor of the State of Emergency Region. The Government recall that
a decision of the Provincial Administrative Council whether or not to
bring the case before the criminal courts is subject to supervision by
the Council of State. According to the Government, the applicants could
also have requested an examination by the prison doctor, who is
connected to the Ministry of Justice and independent from the security
forces.
The applicants submit that any purported remedy would have been
illusory, inadequate and ineffective. They do not deny that the
procedures identified by the Government are formally part of the
Turkish legal structure, but they contend that the Government have not
shown how such procedures could conceivably be effective in the
specific circumstances of the present case.
The applicants consider that none of the remedies suggested by
the Government could be regarded as effective because the scale of
torture committed with impunity by agents of the State in detention
centres is such that this must be considered high-level Government
policy - an administrative practice - in regard to which all remedies
are theoretical and irrelevant. This has been confirmed by several
intergovernmental organs (such as the European Committee for the
Prevention of Torture and Inhuman or Degrading Treatment or Punishment)
and non-governmental bodies.
The applicants add that they have taken all steps which could
reasonably be required of them. They point out that they complained of
torture or ill-treatment during their custody before the examining
judge on 10 December 1993 and when appearing before the State Security
Court on 17 February 1994 or 28 April 1994.
The Commission does not deem it necessary to determine whether
there exists an administrative practice on the part of the Turkish
authorities of tolerating abuses of human rights of the kind alleged
by the applicants, because it considers that in any case the applicants
have done all that could be expected of them in the circumstances. The
Commission has formed this view for the following reasons:
The Commission notes that the applicants raised in the
proceedings before the examining judge or the State Security Court
their complaints concerning their alleged ill-treatment during their
time in police custody. These allegations of torture or ill-treatment
were duly entered into official records, and it should have been a
matter of considerable concern to the judicial authorities that a large
number of lawyers - members of the Bar - complained of having been
subjected, almost at the same time, to such treatment during their
detention. Nevertheless, and despite the duty of the authorities under
Turkish law to act ex officio when confronted with suspicions of
torture, the examining judge, the State Security Court and the public
prosecutor who was present at the hearings before that court all chose
to ignore the complaints and not to examine the allegations or transmit
them to the local public prosecutors' offices or to local
administrative bodies.
The question arises as to whether, in these circumstances, the
applicants were required to avail themselves of further remedies, as
contended by the Government, by addressing a complaint to the competent
public prosecutor or the local administrative bodies. The Commission
considers that the failure of the authorities to take any action on the
basis of the complaints made by the applicants before the judicial
organs makes it highly unlikely that they would have been successful
if they had repeated the same complaints in an application to the
public prosecutor or an administrative organ. The Commission, who finds
that the applicants used an appropriate remedy by complaining of
torture or ill-treatment during the judicial proceedings, considers
that, in view of the failure of the judicial authorities to take any
action, it can be assumed that any other legal remedies would also have
been without any prospect of success. In the circumstances, the
applicants were therefore not obliged to pursue any of these remedies
(cf. Nos. 16311/90, 16312/90 and 16313/90, N.H., G.H. and R.A. v.
Turkey, Dec. 11.10.91, unpublished; No. 21987/93 Aksoy v. Turkey, Dec.
19.10.94, D.R. 79 p. 60; No. 17126/90, S.Ö. v. Turkey, Dec. 30.08.94,
unpublished and mutatis mutandis No. 19092/91, Yagiz v. Turkey, Dec.
11.10.93, D.R. 75 p. 207).
The six months' rule
The Commission recalls that under Article 26 (Art. 26) of the
Convention it may only deal with a matter within a period of six months
from the date on which the final decision was taken in domestic law.
The Commission considers that in a case where an applicant avails
himself of a domestic remedy and it becomes clear, at a later stage,
that this remedy was not effective, the six months period should in
principle be calculated from the time when the applicant became aware
of the ineffectiveness of the remedy.
The Commission finds it established that most of the applicants,
i.e. Tahir Elçi, Arzu Sahin, imam Sahin, Kaya, Tur, Acar, Cem,
Kurbanoglu, Meral Danis Bestas, Mesut Bestas, Demirhan, Abbasioglu,
Demir and Ölmez, complained of torture, ill-treatment or undue pressure
before the State Security Court on 17 February 1994. Other applicants,
including Erten and Altinkalem, made similar complaints before the
examining judge on 10 December 1993. Altinkalem also referred to ill-
treatment before the State Security Court on 28 April 1994. After the
hearings on 17 February and 28 April 1994, the Court took certain
procedural decisions in which no mention was made of the allegations
of torture, ill-treatment or undue pressure.
The Commission considers that the failure of the judicial
authorities to act must have become gradually apparent in the period
up to 28 April 1994 and that the six months period provided for in
Article 26 (Art. 26) of the Convention should therefore be considered
to have started running not later than 28 April 1994.
The Commission notes that the applicants Tahir Elçi, Tur, Acar,
Cem, Kurbanoglu, Meral Danis Bestas, Mesut Bestas, Erten and Ölmez
lodged their complaints concerning Article 3 (Art. 3) of the Convention
with the Commission by submitting supplementary observations on 28
April 1994, that is well within the six months time-limit. These
applicants have therefore complied with the conditions of Article 26
(Art. 26) of the Convention.
However, the other applicants, Arzu Sahin, imam Sahin, Kaya,
Demirhan, Altinkalem, Abbasioglu and Demir, cannot be considered to
have introduced their complaints in this regard before the Commission
until after the expiry of the six months time-limit. These complaints
were in fact only referred to in the final submissions which were
received on 4 November 1996.
The Commission finds, therefore, that the applicants Arzu Sahin,
imam Sahin, Kaya, Demirhan, Altinkalem, Abbasioglu and Demir have
introduced their complaints under Article 3 (Art. 3) of the Convention
out of time and that these complaints are inadmissible under Articles
26 and 27 para. 3 (Art. 26, 27-3) of the Convention.
The substance of the complaints
The Government maintain that there is no evidence to substantiate
the applicants' allegations against the gendarmes under Article 3
(Art. 3) of the Convention. They contend that the statements presented
on behalf of the applicants are inadmissible as they were not taken by
a judicial officer. The Government also submit that the quotations
taken from the reports of international and non-governmental bodies are
either misleading or of no significance in this case. They add that two
medical reports concerning the applicants Ölmez and Meral Danis Bestas
effectively rebut any suggestion of ill-treatment of the applicants
during their custody.
The applicants maintain that the alleged ill-treatment is not of
a kind which would necessarily leave marks to be observed by an
examining doctor. They contend that there is medical evidence to
support allegations of ill-treatment concerning the applicants Ölmez
and Meral Danis Bestas. The applicants submit that given the concerns
raised about the independence of examining doctors, their certificates
should not be treated as decisive.
The Commission considers, in the light of the parties'
submissions, that this part of the case - insofar as it relates to
applicants whose complaints are not inadmissible under Article 26
(Art. 26) of the Convention - raises complex issues of law and fact
under the Convention, the determination of which should depend on an
examination of its merits. 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.
As to Article 5 (Art. 5)
The applicants allege that their detention was arbitrary and
lacked justification. They also complain of the length of their
detention in police custody.
Exhaustion of domestic remedies
The Government submit that the applicants, before lodging an
application with the Commission, failed to comply with the requirement
under Article 26 (Art. 26) of the Convention in that they did not
exhaust domestic remedies with regard to their complaints under Article
5 (Art. 5) of the Convention. They 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 to persons unlawfully arrested or
detained. They add that, since there is not yet any final decision in
the proceedings against the applicants, it is too early for the
applicants to submit such a request.
The applicants recall that their complaint relates to the length
of their police custody and its unjustified nature. They submit that
a long period of custody by order of the public prosecutor is
authorised under national law and accordingly there could be no claim
for compensation in this respect.
The Commission points out that a claim for compensation as
indicated by the Government would not make it possible to end detention
in custody of an unjustified nature within the meaning of Article 5
para. 1 (Art. 5-1) or of excessive length within the meaning of Article
5 para. 3 (Art. 5-3) of the Convention (see mutatis mutandis No.
16026/90, Mansur v. Turkey, Dec. 10.07.1991, unpublished; No. 14116/88
and 14117/88, Sargin and Yagci v. Turkey, Dec. 11.05.1989, D.R. 61 p.
250).
Accordingly, the Commission finds that the objection raised by
the Government cannot be accepted.
The length of the period in police custody
As regards the applicants' complaint that, contrary to the
requirements of Article 5 para. 3 (Art. 5-3) of the Convention, they
were held in police custody for periods of 7 to 24 days without being
brought before a judge, the Commission is not required to decide
whether or not the facts alleged by the applicants disclose any
appearance of a violation of this provision, as Article 26 (Art. 26)
of the Convention provides that the Commission may only deal with the
matter within a period of six months from the date on which the final
decision was taken.
The Commission refers to its case-law according to which, when
an act of a public authority is not open to any effective remedy, the
six months period runs from the date on which the act took place (No.
8007/77, Dec. 10.7.78, D.R. 13 p. 85 p. 153).
The Commission observes that in the present case the applicants'
police custody was effected pursuant to the Law on the Procedures of
State Security Courts and that they had no domestic remedy against this
procedure.
The Commission notes that the situation complained of ended on
10 December 1993 in respect of most of the applicants and on 21
December 1993 in respect of Arzu Sahin and imam Sahin, these being the
dates on which the applicants were either released or detained by order
of an examining judge, whereas the complaint was submitted to the
Commission in the applicants' supplementary submissions of 26 September
1994, that is more than six months after that date.
It follows that this part of the application has been introduced
out of time and must be rejected under Article 27 para. 3
(Art. 27-3) of the Convention.
The lawfulness of the detention
As regards the remaining complaint of the applicants under
Article 5 (Art. 5) of the Convention concerning the unjustified nature
of their arrest and detention, the Government submit that since 1984
ethnically based terrorism has deeply affected the life of the nation
as a whole. Various terrorist groups have regrouped themselves under
the umbrella of the PKK, which is a secret armed organisation, with
considerable membership recruited from various circles including
foreign countries. The PKK is engaged in unconstitutional activities,
using violence to attain its purpose of establishing an independent
Kurdish state. During 1993 and 1994 the PKK was responsible for the
death of 1777 civilians and 1233 members of the security forces and the
wounding of 2113 civilians and 3196 members of security forces. In this
context 16200 events have occurred since 1984, 2548 of which were armed
confrontations. The Government contend that the economic and social
life of the nation has been paralysed. The Government has had
considerable difficulty in ensuring the functioning of public
institutions. This is why the Government have filed a notice of
derogation under Article 15 (Art. 15) of the Convention, which relates
to Article 5 (Art. 5) and is relevant to the present case.
The Government submit that the applicants took up cases of the
PKK militants and that an important witness stated that the applicants
had contact with PKK inmates. The statement of this witness was
consistent with other information according to which some applicants
had acted as couriers between PKK members. Incriminating documents were
also found in their residences or offices. The Government conclude that
the authorities had reasonable suspicion for taking the applicants into
custody.
The Government also observe that the applicants learned about the
reasons for their arrest at the time of the interrogation at the
latest.
The applicants contend that they were not arrested for the
purpose of being brought before a judge on suspicion of having
committed criminal offences but rather because they had defended before
the State Security Court persons who were accused of membership of the
PKK. They submit that their allegations under Article 5 (Art. 5) are
not defeated by the derogation notice of the Government as their
detention was not "strictly necessary" and also because of the lack of
safeguards against possible abuse in respect of such detention.
The Commission considers, in the light of the parties'
submissions, that this part of the case raises complex issues of law
and fact under the Convention, the determination of which should depend
on an examination of its merits. 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.
As to Article 8 (Art. 8) of the Convention and Article 1 of
Protocol No. 1 (P1-1)
The applicants Tahir Elçi, Tur, Acar, Kurbanoglu and Cem complain
of the search of their houses and offices and the confiscation of their
private belongings, work files and correspondence.
Exhaustion of domestic remedies
The Government submit that the applicants have failed to exhaust
domestic remedies as they did not use several remedies at their
disposal. As to the searching of their houses and offices, the
applicants could have raised before the State Security Court, at the
stage of appeal, any procedural or investigatory irregularities of
unlawful conduct. They could also have brought actions for compensation
on the basis of personal liability against those who carried out such
irregular or unlawful acts.
As to the seizure of documents, the Government contend that the
professional documents and the court files for professional practising
have been returned upon the decision of the State Security Court. The
other documents which have not been delivered yet are available by
interim decision of the Court to the applicants who can photocopy them.
The applicants submit that there were no effective remedies at
their disposal in order to challenge the searching of their houses or
offices and the seizure of their documents.
The Commission recalls that in order to comply with the
requirements of Article 26 (Art. 26) an applicant is obliged to make
"normal use" of remedies "likely to be effective and adequate" to
remedy the matters of which he complains. An appeal limited to
questions of lawfulness is not effective where complaint is made
concerning facts or the law itself (see, for example, No 10741/84, Dec.
13.12.84, D.R. 41 p. 226).
In the present case, the complaints of the five applicants amount
to a challenge of the searching of their houses and offices and seizure
of their documents by the police without a judicial decision according
to the legislation applicable in the Emergency State Area. The
Commission accepts that the available remedies based on the
unlawfulness of such measures are not effective and adequate remedies
for such complaints and that the applicants were not required to
exhaust these remedies in order to comply with Article 26 (Art. 26).
The substance of the complaints
The Government submit that the search of the offices and houses
of suspects and the seizure of their documents have been carried out
by order of the public prosecutor according to Article 11 of the Law
on the State of Emergency. These acts have been conducted as a part of
the preliminary investigation made against the applicants, merely to
obtain material evidence about their connections with the separatist
terror organisation PKK. As a result of this investigation some
documents seized from some of the applicants have led the public
prosecutor to bring a criminal action before the State Security Court
of Diyarbakir for terrorist offences. These measures have been taken
in order to protect national security and public safety as well as the
rights and freedoms of others which are subject to terrorist assaults.
The Government conclude that searching the houses and the offices of
the applicants constitutes a legitimate interest within the meaning of
Article 8 para. 2 (Art. 8-2) of the Convention. They also contend that
the seizure of the documents of the five applicants was effected in the
public interest, in conformity with the Article 1 of Protocol No 1
(P1-1).
The applicants contend that, while the files relating to domestic
cases have been returned, a number of additional files relating to
applications to the Commission have not been returned. They point out
that it is not necessary to be permanently deprived of correspondence
or property before there can be a violation under either Article.
The Commission considers, in the light of the parties'
submissions, that this part of the case raises complex issues of law
and fact under the Convention, the determination of which should depend
on an examination of its merits. 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.
As to Article 25 (Art. 25)
The applicant Tahir Elçi alleges a violation of Article 25
(Art. 25) of the Convention in that the treatment to which he was
subjected was connected with the fact that he had assisted clients in
bringing cases before the Commission. The applicants further refer to
the fact that four of them - Acar, Arzu Sahin, imam Sahin and Demirhan
- have been charged with criminal conduct simply on the basis of making
applications to the Commission and that the detention of all the
applicants and the treatment to which they were subjected can have a
"chilling effect" on their preparedness to assist in bringing cases
before the Commission.
The Government point out that all the applicants have succeeded
in bringing their applications before the Commission. According to the
Government, in so far as the complaints relate to alleged interferences
in respect of applications lodged by the lawyers on behalf of third
parties, these cannot have any relevance as the lawyers themselves
cannot be considered to be victims of such interference.
The Government also submit that in the indictment against the
applicants, there is no reference to the Commission at all. There are
vague references to human rights associations in European countries.
In the indictment the emphasis is put on the fact that the applicants
blame the State for criminal acts probably perpetrated by PKK members.
The Government add that the public prosecutors are aware that the
Convention with its mechanism and organs forms part of the Turkish
legal system and that, by virtue of Article 90 of the Constitution, it
is a constitutional right to apply to the Commission.
The applicants submit that the seizure of files relating to
applications to the Commission and held by Tahir Elçi represents a
clear interference with the right of petition. Moreover, the applicants
are each in a class of people who may well have recourse to the
Commission both on their own behalf and on behalf of third parties.
The Commission considers, in the light of the parties'
submissions, that the allegations regarding interference with the right
of individual petition cannot be dismissed at the present stage of the
proceedings. Consequently, there is reason to pursue the examination
of this issue.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATIONS INADMISSIBLE in respect of the
complaints raised by the applicants Arzu Sahin, imam Sahin, Kaya,
Demirhan, Altinkalem, Abbasioglu and Demir in regard to torture,
ill-treatment or undue pressure and the complaints concerning the
length of police custody raised by all applicants,
DECLARES ADMISSIBLE the remainder of the applications, without
prejudging the merits of the case,
DECIDES to pursue the issue of an alleged interference with the
right of individual petition under Article 25 (Art. 25) of the
Convention.
H.C. KRÜGER S. TRECHSEL
Secretary President
to the Commission of the Commission
Full & Egal Universal Law Academy