AS TO THE ADMISSIBILITY OF
Application No. 31789/96
by Argihist SOLDUK
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 7 September 1995
by Argihist Solduk against Turkey and registered on 7 June 1996 under
file No. 31789/96;
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 1968, is a Turkish citizen and resident
in izmir. He is represented before the Commission by Mr Mehmet Nur
Terzi, a lawyer practising in izmir.
The facts of the present case, as submitted by the applicant, may
be summarised as follows.
On 9 July 1992 the applicant, a university student at the time
in izmir, was arrested by policemen. He was accused of having
participated in a demonstration in izmir against the territorial
integrity of the State on 18 May 1991.
On 15 July 1992 the applicant was brought before the izmir State
Security Court. The same day the applicant was placed in detention on
remand by the court.
On 1 September 1992 the applicant was released by the izmir State
Security Court.
On 24 November 1992 the applicant was acquitted by the izmir
State Security Court on account of insufficient evidence for his
conviction.
On 13 January 1993 the applicant brought an action before the
izmir Assize Court. He requested that a certain amount of compensation
be granted to him in accordance with Law No. 466 of 7 May 1964, which
guarantees the possibility of compensation to any person who is
acquitted or discharged after standing trial.
On 28 May 1993 the izmir Assize Court declined jurisdiction
ratione loci. The court ruled that the case must be referred to the
istanbul Assize Court as the applicant was actually resident in
istanbul.
On 1 November 1993 the istanbul Assize Court also declined
jurisdiction ratione loci and referred the case to the Bakirköy Assize
Court.
On 2 March 1994 the Bakirköy Assize Court dismissed the
applicant's application for compensation. The court ruled that it must
have jurisdiction ratione loci to decide on the merits of the case. The
court, referring to the applicant's address in his petition, stated
that there was no address in Bakirköy as stated by the applicant, that
he could not be found and that his lawyer in izmir had not replied to
the court's request for the address of the applicant.
On 28 March 1994 the applicant's lawyer lodged an appeal against
the judgment of the Bakirköy Assize Court. His lawyer claimed that the
court's judgment was contrary to the law as the court must itself find
the applicant's address through police and that it was illogical to
consider that the applicant did not have any address.
On 3 April 1995 the Court of Cassation dismissed the appeal and
upheld the judgment of the Bakirköy Assize Court.
COMPLAINTS
1. The applicant complains under Article 5 para. 5 of the Convention
that he was not granted any compensation by the Bakirköy Assize Court
although he was deprived of his liberty for 54 days.
2. The applicant complains under Article 13 of the Convention that
there were no effective domestic remedies allowing any person who is
acquitted or discharged after standing trial to obtain compensation.
THE LAW
1. The applicant complains under Article 5 para. 5 (Art. 5-5) of the
Convention that he was not granted any compensation by the Bakirköy
Assize Court although he was deprived of his liberty for 54 days.
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
54 days between 9 July 1992 and 1 September 1992. However, the
application was introduced with the Commission on 7 September 1995,
which is more than six months after the end of this detention. The
Commission is therefore prevented from proceeding to an examination of
the applicant's complaint based on his detention on remand as it has
been lodged out of time.
The Commission observes that the applicant was acquitted on
24 November 1992 and 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 this part of 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).
2. The applicant complains under Article 13 (Art. 13) of the
Convention that there were no effective domestic remedies allowing any
person who is acquitted or discharged after standing trial to obtain
compensation.
Article 13 (Art. 13) of the Convention provides as follows:
"Everyone whose rights and freedoms as set forth in this
Convention are violated shall have an effective remedy before a
national authority notwithstanding that the violation has been
committed by persons acting in an official capacity."
The Commission has examined the applicant's complaints based on
Article 5 para. 5 (Art. 5-5) of the Convention. It has held that those
complaints are outside the scope of the Convention.
It follows that Article 13 (Art. 13) does not apply, either, in
the present case. On this point, the Commission refers to its
established case-law (No. 9984/82, Dec. 17.10.85, D.R. 44, p. 54; No.
23997, Dec. 15.5.95, D.R. 81, p. 102; No. 24359/94, Dec. 30.6.95, D.R.
82, p. 56). Therefore this complaint must be dismissed as being
incompatible, ratione materiae, with the provisions of the Convention
pursuant to Article 27 para. 2 (Art. 27-2) of the Convention.
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