AS TO THE ADMISSIBILITY OF
Application No. 29296/95
by Yüksel iGDELi
against Turkey
The European Commission of Human Rights (Second Chamber) sitting
in private on 2 July 1997, the following members being present:
Mrs. G.H. THUNE, President
MM. J.-C. GEUS
G. JÖRUNDSSON
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
M.A. NOWICKI
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 26 October 1995
by Yüksel igdeli against Turkey and registered on 16 November 1995
under file No. 29296/95;
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, a Turkish citizen born in 1968, resides in
Istanbul. He is represented before the Commission by Messrs Naciye
Kaplan, Bedia Buran and Filiz Kostak, lawyers practising in Istanbul.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
The police carried out some operations against PKK activists in
Istanbul during which A.Y. was taken into police custody. During his
questioning A.Y. confessed that he had participated in activities with
the applicant.
As a result of A.Y.'s confession, the police obtained the
applicant's address through his former records at the police station
and arrested him on 5 June 1995. When they searched him, they found a
note explaining the explosive chemicals used in making a bomb. The
applicant was taken into police custody on the same day.
In the course of the inquiry the police found that the applicant
had been previously charged with being a member of the PKK and had been
released pending trial on 21 December 1994.
On 5 June 1995 the Public Prosecutor at the Istanbul State
Security Court extended the applicant's detention in police custody to
12 June 1995.
On 12 June 1995, after having interviewed the applicant, the
assessor of the State Security Court at Istanbul ordered him to be
remanded in custody.
In an indictment dated 29 June 1995 the Public Prosecutor at the
Istanbul State Security Court charged the applicant under Article 168
of the Turkish Criminal Code with being a member of an armed
organisation with the aim of committing the offence of attempting to
modify the constitution of the Turkish Republic in part or entirely.
The indictment stated that the note found on him had been given to him
by one of the PKK supervisors in prison at the time of his release, in
order to be passed on to other activists. It was also established by
an expert that the explosive chemicals mentioned in the note were in
fact used in hand made bombs.
The criminal proceedings before the State Security Court are
still pending and the applicant is still in detention.
COMPLAINTS
Under Article 5 of the Convention, the applicant alleges
violations of:
- para. 1 in that there was no reasonable suspicion when the police
arrested him and the police used its authority in an arbitrary manner;
- para. 2 in that he was not informed promptly of the reasons for
his arrest or of any charge against him;
- para. 3 in that he was kept in police custody for seven days
without being brought before a judge;
- para. 4 in that Turkish law does not afford any effective remedy
by which the lawfulness of his police custody could be decided speedily
by a court.
The applicant also alleges discrimination under Article 14 in
conjunction with Article 5 para. 3 of the Convention in that, in
accordance with the provisions of the Code of Criminal Procedure,
persons taken into police custody must be brought before a judge within
a maximum period of four days, whereas in relation to offences which
fall within the jurisdiction of the State Security Courts this period
may be extended to fifteen days.
THE LAW
1. The applicant alleges that his arrest by the police infringed
his right under Article 5 para. 1 (c) (Art. 5-1-c) of the Convention
as there was no reasonable suspicion that he had committed a criminal
offence when they arrested him.
Article 5 para. 1 (c) (Art. 5-1-c) of the Convention provides
that a person may be arrested or detained in the following case:
"...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;"
With regard to the level of suspicion, the Commission recalls
that the object of questioning during detention under sub-paragraph (c)
of Article 5 para. 1 (Art. 5-1) is to further the criminal
investigation by way of confirming or dispelling the concrete suspicion
grounding the arrest (see, inter alia, Eur. Court HR, Murray judgment
of 28 October 1994, Series A no. 300-A, p. 27, para. 55). Having a
reasonable suspicion presupposes the existence of facts or information
which would satisfy an objective observer that the person concerned may
have committed the offence. What may be regarded as "reasonable" will
however depend upon all the circumstances (see Eur. Court HR, Fox,
Campbell and Hartley judgment of Series A no. 182, p. 16, para. 32).
As regards the instant case, the Commission notes at the outset
that the applicant was arrested following the statement of A.Y., the
other accused, in which the latter confessed that he had participated
in activities with the applicant. When the police searched the
applicant they found a note explaining the explosive chemicals used in
making a bomb. It also notes that the applicant had been previously
charged with being a member of the PKK and had been released pending
trial. Accordingly, the Commission is of the opinion that there were
specific grounds for the police to suspect the applicant of being
involved in illegal activities related to the armed organisation PKK.
On the particular facts of the present case, the Commission is
satisfied that the applicant can be said to have been arrested on
"reasonable suspicion" of the commission of a criminal offence, within
the meaning of Article 5 para. 1 (c) (Art. 5-1-c).
Consequently, this part of the application must be dismissed as
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
2. The applicant further alleges that he was not informed promptly
of the reasons for his arrest or of any charge against him.
Article 5 para. 2 (Art. 5-2) of the Convention reads as follows:
"...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."
The Commission notes that when the policemen arrested the
applicant they found a note aimed for the illegal armed organisation,
the PKK, in which there were some explanations about the explosive
chemicals used in making a bomb. The applicant was then placed in
detention on remand by a judge and the public prosecutor charged him
with being a member of an armed organisation, the PKK. The Commission
finds that the note in question had a direct link with the applicant's
suspected activities and the police questioned him merely about that
subject. Therefore, the applicant was aware of the matter at least in
broad terms. Bearing all this in mind the Commission finds that the
facts of the case do not disclose any appearance of a violation of
Article 5 para. 2 (Art. 5-2) of the Convention (mutandis mutandis No.
8828/79, Dec. 5.10. 1982, D.R. 30 p. 93).
It follows that this part of the application must also be
dismissed as being manifestly ill-founded within the meaning of Article
27 para. 2 (Art. 27-2) of the Convention.
3. The applicant complains that he was not brought promptly before
a judge following his arrest, which is contrary to Article 5 para. 3
(Art. 5-3) of the Convention.
He also complains under Article 5 para. 4 (Art. 5-4) of the
Convention that Turkish law does not afford any effective remedy by
which the lawfulness of his police custody could be decided speedily
by a court.
The applicant lastly alleges discrimination under Article 14 in
conjunction with Article 5 para. 3 (Art. 14+5-3) of the Convention in
that, in accordance with the provisions of the Code of Criminal
Procedure, persons taken into police custody must be brought before a
judge within a maximum period of four days, whereas in relation to
offences which fall within the jurisdiction of the State Security
Courts this period may be extended to fifteen days.
The Commission 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 para. 2 (b) of the
Rules of Procedure, to give notice of these complaints to the
respondent Government.
For these reasons, the Commission,
DECIDES TO ADJOURN the examination of the applicant's complaints
that he was not promptly brought before a judge nor entitled to
take proceedings by which the lawfulness of his detention could
be decided speedily by a court and his complaint of
discrimination with regard to the length of the police custody;
unanimously,
DECLARES THE REMAINDER OF THE APPLICATION INADMISSIBLE.
M.-T. SCHOEPFER G.H. THUNE
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy