SAKIK AND OTHERS v TURKEY
European Court of Human Rights
Mr R. Bernhardt (President), Mr T. Vilhajálmsson, Mr F. Gölcüklü, Mr F. Matscher, Mr L.-E. Pettiti, Mr B. Walsh, Mr A. N. Loizou, Mr J.M. Morenilla, Mr P. Kuris
26 November 1997

Fundamental human rights - Turkey - Arrests and detentions - Whether State's arrests could be justified by special problems associated with terrorism - Whether applicants were 'brought promptly before a judge' or had had lawfulness of their detention 'decided speedily' - Effectiveness of domestic remedy - Whether applicants had sufficiently certain domestic right to compensation - Whether appropriate to extend effect of State's notice of derogation from 1950 Convention to part of State's territory not named in notice - European Convention on Human Rights and Fundamental Freedoms 1950, Arts 5(3), (4), (5), 15 The applicants were six former members of the Turkish National Assembly who had been elected on 20 October 1991 as members of the Demokrasi Partisi (Democracy Party). On 2 March 1994 the National Assembly lifted their parliamentary immunity on an application by the public prosecutor attached to the Ankara National Security Court, who had accused them of committing offences classified as terrorist crimes. Two of the applicants were arrested as they were leaving the parliament building and taken into police custody at the headquarters of the anti-terrorist section of the Ankara security police. The remaining four appellants were similarly arrested on 4 March 1994. On 4 March 1994 the public prosecutor extended the six applicants' detention in police custody until 16 March 1994 on the grounds that further investigations were needed. Whilst in custody the applicants refused to make any statements. On 17 March 1994 a single judge of the National Security Court issued an order for the detention of the applicants pending trial. On 22 March 1994, on appeal by the applicants, a bench of three judges of the same court upheld the order of 17 March 1994. On 13 April 1994 a further application for release was dismissed by the National Security Court. On 21 June 1994 the public prosecutor filed submissions accusing the applicants of separatism and undermining the integrity of the State. In December 1994 the National Security Court sentenced two of the applicants to 3 years' and 6 months' imprisonment for separatist propaganda and the remainder to 15 years' imprisonment for membership of an armed group. On 26 October 1995, on appeal by the applicants, the Court of Cassation quashed the conviction of one of the applicants imprisoned for 15 years and ordered his release; the remaining applicants' convictions were upheld. The applicants applied to the European Court of Human Rights asserting that: (a) they had not been brought 'promptly' before a judge or other officer authorised by law to exercise judicial power, contrary to Art 5(3) of the Convention for the Protection of Human Rights and Fundamental Freedoms 1950; (b) they had not been able to take proceedings to have the lawfulness of the public prosecutor's decisions ordering their detention in police custody decided by a judge, contrary to Art 5(4) of the 1950 Convention; and (c) it was not possible for them to claim compensation for a violation of Art 5 of the 1950 Convention, contrary to Art 5(5) thereof. The Government's response was respectively: (a) that the nature and scale of the terrorist threat in Turkey and the particular difficulties encountered in taking action to ward off that threat and in investigating the applicants' conduct had to be weighed in the balance; (b) that the view required by Art 5(4) had been carried out by the single judge who ordered the applicants' detention pending trial and that Art 19(8) of the Turkish Constitution, which was in similar terms to Art 5(4) of the 1950 Convention, provided a remedy which was available before the National Security Courts; and (c) that as the applicants had not availed themselves of Art 19 of the Turkish Constitution or s 1 of Law No 466 on the payment of compensation to persons unlawfully arrested or detained, compensation should be refused. The Government also generally submitted that, as Turkey had exercised the right to derogation under Art 15 of the 1950 Convention on 6 August 1990 and 3 January 1991, it had not breached any part of Art 5. Held - (unanimously) - (1)Article 15 of the 1950 Convention authorises derogations from the obligations arising from the Convention only 'to the extent strictly required by the exigencies of the situation'. It would be contrary to the object and purpose of Art 15 if, when assessing the territorial scope of the derogation concerned, the Court were to extend its effects to a part of Turkish territory not explicitly named in the notice of derogation. As the notices of derogation only applied to the region where a state of emergency had been proclaimed and as that did not include Ankara, the location in which the applicants were arrested, the question of derogation was inapplicable to the instant case. (2)The fact that the investigation of terrorist offences undoubtedly presents Contracting States with special problems did not mean that Contracting States had a carte blanche under Art 5 of the 1950 Convention to arrest suspects for questioning, free from effective control by the domestic courts and, ultimately, by the Convention supervisory institutions, whenever they chose to assert that terrorism was involved. Article 5 enshrined a fundamental human right, namely protection of the individual against arbitrary interferences by the executive with his right to liberty. Accordingly, as the Court had previously held that detention for a period of 4 days and 6 hours without judicial control fell outside the strict constraints as to time laid down by Art 5(3) and as the applicants had been detained for periods of between 12 to 14 days, it could not be said, even if the activities of which they stood accused were linked to a terrorist threat, that it was necessary to detain the applicants for the said periods. Accordingly, there had been a breach of Art 5(3).

Brogan and Others v United Kingdom, Murray v United Kingdom and Aksoy v Turkey followed.

(3)Although, when ordering the applicants' detention and trial, the single judge had also ruled on the lawfulness of their earlier detention in police custody, that judge had not intervened until the end of the police detention, namely 12 to 14 days after the applicants' arrest. Having regard to the conclusion reached with regard to Art 5(3), such a lengthy period was inconsistent with the notion of 'speedily' found in Art 5(4) of the 1950 Convention. Nor did the existence of Art 19(8) of the Turkish Constitution preclude a breach of Art 5(4) of the 1950 Convention. The existence of a remedy must be sufficiently certain, failing which it will lack the accessibility and effectiveness for the purposes of Art 5 of the 1950 Convention. In the instant case, there was no evidence of an instance in which a person in police custody had successfully invoked Art 19(8) of the Turkish Constitution or Art 5(4) of the 1950 Convention when applying to a judge for a ruling on the lawfulness of his detention or for his release. Such a lack of precedents indicated the uncertainty of the remedy. Accordingly, there had been a breach of Art 5(4).

Van Droogenbroeck v Belgium, De Jong, BaIjet and Van den Brink v Netherlands, and Yagci and Sargin v Turkey followed

(4)There was no evidence of an instance in which any litigant had obtained the compensation referred to in Art 5(5) of the 1950 Convention by relying on one of the provisions mentioned by the Government. With particular regard to s 1 of Law No 466, with the exception of the situation where a person is not committed for trial or is acquitted or discharged after standing trial, all the cases in which compensation was payable under s 1 required the deprivation of liberty to have been unlawful. In the instant case the Government conceded that the detentions in issue were in accordance with Turkish law. Effective enjoyment of the right guaranteed by Art 5(5) of the 1950 Convention was not, therefore, ensured with a sufficient degree of certainty. Accordingly, there had been a breach of Art 5(5).

Ciulla v Italy followed

(5)The applicants, Mr Sakik, Mr Turk, Mr Alinak and Mrs Zana were entitled to 25,000 French francs each and the applicants Mr Dicle and Mr Dogan to 30,000 French francs each by way of compensation. The applicants were also entitled to 120,000 French francs for costs and expenses. International statutory provisions considered (Turkey) Constitution, Arts 19, 90(5) Criminal Code, Art 125, 168 Law No 466 of 7 May 1964 (payment of compensation to persons unlawfully arrested or detained), s 1 Law No 2845 (procedure in the national security courts), s 9 Law No 3842 of 18 November 1992 (amendments to legislation on criminal procedure), s 30 Legislative Decree No 424 Legislative Decree No 425 Legislative Decree No 430 Prevention of Terrorism Act (Law No 3713), s 8 International Treaties, Conventions and documents referred to in judgment Convention for the Protection of Human Rights and Fundamental Freedoms 1950, Arts 5(1), (3), (4), (5), 6(1), (3), 10, 15, 25, 31, 32(1), 43, 44, 47, 48, 50 International cases referred to in judgment Aksoy v Turkey (1997) 23 EHRR 553, ECHR Brogan and Others v United Kingdom (1989) 11 EHRR 117, ECHR Ceteroni v Italy (1996) A series Vol V, 1748, ECHR Ciulla v Italy (1991) 13 EHRR 346, ECHR De Jong, BaIjet and Van den Brink v Netherlands (1986) 8 EHRR 20, ECHR Murray v United Kingdom (1996) 19 EHRR 193, ECHR Nideröst-Huber v Switzerland (1996) 25 EHRR 709, ECHR Van Droogenbroeck v Belgium (1982) 4 EHRR 443, ECHR Yagci and Sargin v Turkey (1995) 20 EHRR 505, ECHR Mr B. Gündüz (Professor of International Law, University of Marmara) agent, Ms D. Akçay (Counsel) Mr A. Kaya (Adviser) and Ms M. Gülsen (Adviser) for the Government Mr I. Cabral Barreto (Delegate) for the Commission Mr C. Charrière-Bournazel (Paris Bar), Mr Y Alata (Lawyer, Ankara Bar), Mr D. Jacoby (Counsel, Paris Bar), Mr S. Yilmaz (Adviser) for the applicants

THE COURT DELIVERED THE FOLLOWING JUDGMENT:

Procedure

(1)The case was referred to the Court by the European Commission of Human Rights ('the Commission') on 10 July 1996, within the 3-month period laid down by Arts 32(l) and 47 of the Convention. It originated in six applications (nos 23878/94 to 23883/94) against the Republic of Turkey lodged with the Commission under Art 25 by six Turkish nationals, Mr Sirri Sakik, Mr Ahmet Türk, Mr Mahmut Alinak, Mrs Leyla Zana, Mr Mehmet Hatip Dicle and Mr Orhan Dogan, on 11 March 1994.

The Commission's request referred to Arts 44 and 48 and to the declaration whereby Turkey recognised the compulsory jurisdiction of the Court (Art 46). The object of the request was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Art 5 of the Convention.

(2)In reply to the inquiry made in accordance with r 33(3)(d) of Rules of Court A, the applicants stated that they wished to take part in the proceedings and designated the lawyers who would represent them. On 1 April 1997 the President of the Chamber gave one of these, Mr Alatas, leave to address the Court in the Turkish language (r 27(3)). (3)The Chamber to be constituted included ex officio Mr F. Gölcüklü, the elected judge of Turkish nationality (Art 43 of the Convention), and Mr R. Bernhardt, the Vice-President of the Court (r 21(4)(b)). On 7 August 1996, in the presence of the Registrar, the President of the Court, Mr R. Ryssdal, drew by lot the names of the other seven members, namely Mr Thór Vilhjálmsson, Mr F. Matscher, Mr L.-E. Pettiti, Mr B. Walsh, Mr A.N. Loizou, Mr J.M. Morenilla and Mr P. Kuris (Art 43 in fine of the Convention and r 21(5)). (4)The President of the Chamber, acting through the registrar, consulted the Agent of the Turkish Government (the Government), the applicants' lawyers and the Delegate of the Commission on the organisation of the proceedings (rr 37(1) and 38). Pursuant to the order made in consequence, the Registrar received the applicants' memorial on 12 March 1997, the Government's memorial on 14 March 1997 and the Government's observations on application of Art 50 of the Convention on 14 April 1997. (5)In accordance with the decision of the President of the Chamber, the hearing took place in public in the Human Rights Building, Strasbourg, on 25 April 1997. The Court had held a preparatory meeting beforehand. There appeared before the

(a)for the Government

Mr B. Giinddz, Professor of International Law, University of Marmara, Agent,

Mrs D. Akçay, Counsel,

Mr A. Kaya, Miss M. Gülsen, Advisers;

(b)for the Commission

Mr I. Cabral Barreto, Delegate;

(c)for the applicants

Mr C. Charrière-Bournazel, avocat, of the Paris Bar,

Mr Y. Alatas, avukat (lawyer), of the Ankara Bar,

Mr D. Jacoby, avocat, of the Paris Bar, Counsel,

Mr S. Yilmaz, avukat (lawyer), of the Diyarbakir Bar, Adviser

The Court heard addresses by Mr Cabral Barreto, Mr Charrière-Bournazel, Mr Alatas, Mr Jacoby, Mr Gündüz and Mrs Akçay.

As to the facts

I.The circumstances of the case

A.Arrest and detention in police custody

(6)The applicants are former members of the Turkish National Assembly who were elected in the general election of 20 October 1991. At that time they were members of the People's Labour Party (Halkin Emegi Partisi), which was founded in June 1990 but proscribed and dissolved by the Constitutional Court on 14 August 1993 on account of what were held to be separatist activities. By that date the applicants had joined the Democracy Party (Demokrasi Partisi), which had been set up in the meantime. (7)On 2 March 1994 the National Assembly lifted their parliamentary immunity on an application, first lodged in November 1992 and subsequently resubmitted on several occasions, by the public prosecutor attached to the Ankara National Security Court (Ankara Devlet Güvenlik Mahkernesi Cumhuriyet savcisi - 'the public prosecutor'). He accused them of committing the offences defined in Art 125 of the Criminal Code (see para (20) below), which were classified as terrorist crimes in the Prevention of Terrorism Act (Law No 3713 - see para (21) below) and thus came within the jurisdiction of the national security courts (see para (22) below). (8)On the same day, as they were leaving the parliament building, Mr Dicle and Mr Dogan were arrested on the public prosecutor's orders and taken into police custody at the headquarters of the anti-terrorist section of the Ankara security police. On the following day their lawyers asked for their clients to be brought promptly before a judge and asked the public prosecutor for permission to speak to them. The written authorisation issued by the public prosecutor for that purpose specified that the interview - to be conducted under supervision - was to concern preparation of the appeal the applicants were intending to lodge against the lifting of their parliamentary immunity. (9)The other four applicants had refused to leave the parliament precinct, but on 4 March 1994 they suffered the same fate as their two colleagues. On that day the public prosecutor extended the six applicants' detention in police custody until 16 March 1994 on the ground that further investigations were needed; his decision was based on s 30 of Law No 3842 governing procedure before the national security courts (see para (23) below). While in police custody the applicants refused to make any statement. (10)On 11 March 1994 the lawyer acting for Mr Dicle and Mr Dogan, referring to his request of 3 March 1994 that they be brought promptly before a judge (see para (8) above), made another application to the same effect, relying on Arts 5 and 6 of the Convention, inter alia. (11)On 21 March 1994 the Constitutional Court dismissed appeals lodged by the applicants against the lifting of their parliamentary immunity.

B.Detention pending trial

(12)In the meantime, on 17 March 1994, a single judge of the National Security Court had issued an order for the MPs' detention pending trial, giving as the reasons the 'character and nature' of the offence concerned and the 'evidence obtained'. (13)On appeal by the applicants, a bench of three judges of the same court upheld the above order on 22 March 1994, holding that it was necessary 'on account of the classification and nature of the offences [concerned], the charges already preferred, the length of [the applicants'] detention and the fact that the case [was] still at the investigation stage'. (14)On 12 April 1994 the applicants lodged a further application for release, which was dismissed by the National Security Court on 13 May 1994 on the ground that the case was 'still at the investigation stage' and that to date there had been 'no change in the detained MPs' favour'.

C.Trial in the Ankara National Security Court

(15)On 21 June 1994 the public prosecutor filed submissions accusing the applicants of separatism and undermining the integrity of the State, which are capital offences under Art 125 of the Criminal Code (see para (7) above and (20) below). (16)On 8 December 1994 the National Security Court delivered its judgment. Applying s 8 of the Prevention of Terrorism Act (Law No 3713 - see para (21) below), it sentenced Mr Sakik and Mr Alinak to 3 years and 6 months' imprisonment for separatist propaganda and Mr Türk, Mr Dicle, Mr Dogan and Mrs Zana to 15 years' imprisonment for membership of an armed gang (Art 168 of the Criminal Code - see para (20) below). (17)On appeal by the applicants and the public prosecutor, the Court of Cassation quashed Mr Türk's conviction on 26 October 1995 and ordered his release, on the ground that he had contravened s 8 of the Prevention of Terrorism Act (Law No 3713) but not Art 168 of the Criminal Code. It upheld the other applicants' convictions.

II.Relevant domestic law

(18)Article 19 of the Constitution provides:

'Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with the formalities and conditions prescribed by law:

…

The arrested or detained person must be brought before a judge within forty-eight hours at the latest or, in the case of offences committed by more than one person, within fifteen days... These time-limits may be extended during a state of emergency...

A person deprived of his liberty for whatever reason shall have the right to take proceedings before a judicial authority which shall give a speedy ruling on his case and order his immediate release if it finds that the deprivation of liberty was unlawful. Compensation must be paid by the State for damage sustained by persons who have been victims of treatment contrary to the above provisions, as the law shall provide.'

(19)Article 90(5) of the Constitution provides: 'International treaties lawfully brought into force shall have the force of law...' (20)The relevant provisions of the Criminal Code read as follows: Article 125:

'It shall be an offence, punishable by the death penalty, to commit any act aimed at subjecting the State or any part of the State to domination by a foreign State, diminishing the State's independence or removing part of the national territory from the State's control.'

Article 168:

'Any person who, with the intention of committing the offences defined in Article 125..., forms an armed gang or organisation or takes leadership... or command of such a gang or organisation or assumes some special responsibility within it shall be sentenced to not less than fifteen years' imprisonment.

The other members of the gang or organisation shall be sentenced to not less than five and not more than fifteen years' imprisonment.'

(21)Section 3 of the Prevention of Terrorism Act (Law No 3713) classifies the offences defined in ss 125 and 168 of the Criminal Code as terrorist crimes. Before being amended on 27 October 1995, s 8(1) of the Act provided:

'Written and oral propaganda, meetings, assemblies, and demonstrations aimed at undermining the territorial integrity of the Republic of Turkey or the indivisible unity of its people are forbidden, regardless of the methods or intentions behind such activities. Those conducting such activities shall be punished with a sentence of between 2 and 5 years' imprisonment and a fine of between 50 million and 100 million liras...'

(22)Under s 9 of Law No 2845 on procedure in the national security courts, only these courts can try cases involving the offences defined in Arts 125 and 168 of the Criminal Code. (23)At the material time s 30 of Law No 3842 of 18 November 1992, amending the legislation on criminal procedure, provided that, with regard to offences within the jurisdiction of the national security courts (see para (22) above), any arrested person had to be brought before a judge within 48 hours at the latest, or, in the case of offences committed by more than one person, within 15 days. In provinces where a state of emergency had been declared, these time-limits could be extended to 4 days and 30 days respectively. (24)Section 1 of Law No 466 on the payment of compensation to persons unlawfully arrested or detained provides:

'Compensation shall be paid by the State in respect of all damage sustained by persons:

(1)Who have been arrested, or detained under conditions or in circumstances incompatible with the Constitution or statute law;

(2)Who have not been immediately informed of the reasons for their arrest or detention;

(3)Who have not been brought before a judicial officer after being arrested or detained within the time-limit laid down by statute for that purpose;

(4)Who have been deprived of their liberty without a court order after the statutory time-limit for being brought before a judicial officer has expired;

(5)Whose close family have not been immediately informed of their arrest or detention;

(6)Who, after being arrested or detained in accordance with the law, are not subsequently committed for trial..., or are acquitted or discharged after standing trial; or

(7)Who have been sentenced to a period of imprisonment shorter than the period spent in detention or ordered to pay a pecuniary penalty only.'

III.The notice of derogation of 6 August 1990 and its subsequent amendments

(25)On 6 August 1990 the Permanent Representative of Turkey to the Council of Europe sent the Secretary General of the Council of Europe the following notice of derogation:

'(1)The Republic of Turkey is exposed to threats to its national security in South East Anatolia which have steadily grown in scope and intensity over the last months so as to [amount] to a threat to the life of the nation in the meaning of Art 15 of the Convention.

During 1989, 136 civilians and 153 members of the security forces have been killed by acts of terrorists, acting partly out of foreign bases. Since the beginning of 1990 only, the numbers are 125 civilians and 96 members of the security forces.

(2)The threat to national security is predominantly [occurring] in provinces of South East Anatolia and partly also in adjacent provinces.

(3)Because of the intensity and variety of terrorist actions and in order to cope with such actions, the Government has not only to use its security forces but also take steps appropriate to cope with a campaign of harmful misinformation of the public, partly emerging from other parts of the Republic of Turkey or even from abroad and with abuses of trade-union rights.

(4)To this end, the Government of Turkey, acting in conformity with Art 121 of the Turkish Constitution, has promulgated on May 10 1990 the decrees with force of law [Nos] 424 and 425. These decrees may in part result in derogating from rights enshrined in the following provisions of the European Convention [on] Human Rights and Fundamental Freedoms: Articles 5, 6, 8, 10, 11 and 13. A descriptive summary of the new measures is attached hereto...'

The descriptive summary of the content of Legislative Decrees Nos 424 and 425 reads as follows:

'(A)By virtue of the decrees having force of law [Nos] 424 and 425 on the state of emergency region, the state of emergency region governorship has been empowered with the following additional powers:

(1)The Ministry of Interior, upon the proposal of the Governor of the state of emergency region can temporarily or permanently ban the publication (regardless of the location of the printing press), which is prone to cause a serious disruption in the public order of the region or excitement of the local people or to handicap the security forces in performing their duties by misinterpreting the regional activities. This also includes, if necessary, the power to order the closure of the printing press concerned.

(2)The Governor of the state of emergency region can order persons who continuously violate the general security and public order, to settle at a place to be specified by the Ministry of Interior outside the state of emergency region for a period which shall not exceed the duration of the state of emergency. At their request, the persons concerned may receive financial aid from the Development and Support Fund. The particulars for this assistance shall be determined by the Ministry of Interior.

(3)The Governor of the state of emergency region (or the delegated provincial Governor) can suspend (up to 3 months) or require prior permission for certain labor disputes related activities like strike and lockout.

(4)The Governor can also ban, or take preventive measures against certain activities like destruction, looting, boycotting, slowing down of work, restricting the freedom of work and closing down of business.

(5)The Governor of the state of emergency region can order the temporary or permanent evacuation, change of place, regrouping of villages, grazing fields and residential areas for reasons of public security.

(6)The Governor of the state of emergency region can order the relevant public institutions in the state of emergency region to transfer permanently or temporarily to other positions their public officials who are deemed to be harmful to general security and public order, the concerned public official shall remain subject to the provisions of the special law on civil service applicable to him.

B. No legal claims of criminal, pecuniary or legal nature can be brought against, nor can any legal steps be taken with the judicial authority for this purpose in respect of any decision taken or any act performed by the Minister of Interior, the Governor of the emergency region and other governors, when exercising the power under the decree No 424 having force of law.

(C)No interim decision to suspend the execution of an administrative act can be taken during proceedings of an administrative suit which has been filed against the act(s) performed when exercising the power given by the law of emergency No 2935 to the Minister of Interior, the Governor of the state of emergency region and the provincial governors.

(D)The suit of nullity can not be filed against administrative acts performed by the Governor of the emergency region when exercising the power given to him under the decree having force of law No 285.'

According to a note in the notice of derogation, 'the threat to national security [was] predominantly occurring' in the provinces of Elazig, Bingöl, Tunceli, Van, Diyarbakir, Mardin, Siirt, Hakkâri, Batman and Sirnak (see para (28) below).

(26)In a letter of 3 January 1991 the Permanent Representative of Turkey informed the Secretary General that Legislative Decree No 424 had been replaced by Legislative Decree No 430, promulgated on 16 December 1990. An appendix to the above letter, containing a descriptive summary of the decree, reads as follows:

'(1)The powers of the Governor of the state of emergency under Decree with Force of Law No 425 have been limited to the region where a state of emergency is in force. Thus, the adjacent provinces have been excluded from the competence of the Governor.

(2)The special powers given to the Governor of the state of emergency by virtue of Decree with force of Law No 425 have been restricted to measures dealing with terrorist activities aiming at the destruction of fundamental rights and freedoms.

(3)The powers of the Minister of Interior [to] ban any publication or order the closure of the printing press (regardless of the location) is restricted. According to the new provision, the Minister of Interior has at first to issue a warning to the owner or the publisher of the publication. If the owner or the publisher continues to print or distribute the controversial issue, then the Minister concerned may temporarily or permanently ban the publication and, if necessary, may also order the closure of the printing press for a maximum period of 10 days, which may, however, be extended to one month in case of repetition. No maximum period for closure of the printing press has been stipulated by the (abrogated) Decree No 424 (Compare para A (1) of the Descriptive Summary attached to the Notice of Derogation of August 6 1990).

(4)The authority of the Governor of the state of emergency to order persons to settle at a specified place outside the state of emergency region has been restricted by virtue of the new Decree. The persons who are expelled from the state of emergency region are not obliged to settle in a specified place. Hence, they will be free to choose their residence out of the region except when they request financial aid. In this case they have to settle at a specified place (see para A(2) of previous Descriptive Summary).

(5)Referring to the paragraphs A (3, 4, 5 and 6) of the Descriptive Summary of 6 August 1990 (which are related to strikes, lockout and some other activities of labor unions, evacuation and regrouping of villages, transfer of public officials to other posts or positions), it should be noted that the adjacent provinces have been excluded by virtue of the new decree.

(6)As to para 8 of the previous Descriptive Summary, a new clause has been included in the new Decree safeguarding the right to file an action against the administration (State) for loss or damages arising out of the performance of the acts taken under the emergency measures.'

(27)On 12 May 1992 the Permanent Representative of Turkey wrote to the Secretary General in the following terms: 'As most of the measures described in the decrees which have the force of law Nos 425 and 430 that might result in derogating from rights guaranteed by Arts 5, 6, 8, 10, 11 and 13 of the Convention, are no longer being implemented, I hereby inform you that the Republic of Turkey limits henceforward the scope of its Notice of Derogation with respect to Art 5 of the Convention only. The derogation with respect to Arts 6, 8, 10, 11 and 13 of the Convention is no longer in effect; consequently, the corresponding reference to these Articles is hereby deleted from the said Notice of Derogation'. (28)On 6 April 1993 the Permanent Representative of Turkey informed the Secretary General that by legislative decrees of 9 March 1993, which had entered into force on 19 March 1993, the state of emergency had been lifted in the province of Elazig and proclaimed in the province of Bitlis.

Proceedings before the Commission

(29)The applicants applied to the Commission on 11 March 1994. They complained:

(1)in respect of their detention in police custody, of its unlawfulness, of its excessive length, of the impossibility of taking proceedings by which its lawfulness could be decided, of the lack of a right to compensation for its excessive length (Art 5(1), (3), (4) and (5) of the Convention) and of the fact that they did not have the assistance of a lawyer while they were in police custody (Art 6(3)(c));

(2)in respect of the proceedings in the National Security Court, that they had not had a fair trial and that the court was not independent and impartial (Art 6(1));

(3)in respect of the Constitutional Court's rejection of their application to set aside the lifting of their parliamentary immunity, of the fact that they had not been informed of the reasons for this decision, having been served with the operative provisions only; and

(4)of an infringement of their freedom of expression (Art 10).

(30)On 25 May 1995 the Commission declared admissible the complaints relating to the lawfulness and length of the applicants' detention in police custody, the impossibility of securing review by a court and the lack of a right to compensation and declared the remainder of the applications (Nos 23878/94 to 23883/94) inadmissible. In its report of 23 May 1996 (Art 31), it expressed the unanimous opinion that there had been no breach of para (1) of Art 5 but that there had been breaches of paras (3), (4) and (5).

Final submissions to the Court

(31)In their memorial the Government:

‘... respectfully [asked] the Court, primarily, to declare that the Turkish derogation [was] applicable to the facts of the case and that, pursuant to that derogation, there [had] been no violation of Art 5 of the Convention; and in the alternative, to declare that the applicants [had] failed to exhaust all domestic remedies [in connection with] Art 5; to declare that there [had] been no violation of Art 5(1), (3), (4) and (5).'

(32)The applicants asked the Court 'to deliver a decision... consistent with the Commission's conclusions' and claimed just satisfaction under Art 50 of the Convention.

As to the law

I.Alleged violations of Art 5 of the Convention

(33)The applicants complained of breaches of Art 5(l), (3), (4) and (5) of the Convention (see paras (40), (41), (49) and (58) below), the relevant parts of which provide:

'(1)Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(c)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;...

(3)Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

(4)Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

(5)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 Government maintained that, as Turkey had exercised the right of derogation under Art 15 of the Convention (see para (25) above), it had not breached these provisions. The Court must accordingly first determine whether the derogation concerned applies to the facts of the case.

A.Applicability of the derogation notified by Turkey under Art 15 of the Convention

(34)Article 15 of the Convention provides:

'(1)In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under [the] Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.

(2)No derogations from Article 2, except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7 shall be made under this provision.

(3)Any High Contracting Party availing itself of this right of derogation shall keep the Secretary General of the Council of Europe fully informed of the measures which it has taken and the reasons therefor. It shall also inform the Secretary General of the Council of Europe when such measures have ceased to operate and the provisions of the Convention are again being fully executed.'

(35)The applicants submitted that the derogation in question did not apply to the measures imposed on them. The Commission agreed. (36)The Court notes that Legislative Decrees Nos 424, 425 and 430, which are referred to in the derogation of 6 August 1990 and the letter of 3 January 1991, apply, according to the descriptive summary of their content, only to the region where a state of emergency has been proclaimed, which, according to the derogation, does not include the city of Ankara (see paras (25) and (28) above). However, the applicants' arrest and detention took place in Ankara on the orders first of the public prosecutor attached to the Ankara National Security Court and later of the judges of that court (see paras (7)-(14) above). (37)The Government submitted that this was no bar to the derogation's applicability. The facts of the case constituted only the prolongation of a terrorist campaign being conducted from inside the area where the state of emergency had been proclaimed, in south-east Turkey. The terrorist threat was not confined to any particular part of Turkish territory. That had to be taken into account if the Turkish derogation was to be interpreted in the light of its object and purpose, namely to enable 'normality for the purposes of the Convention' to be restored throughout the country as quickly as possible. (38)In its Aksoy v Turkey (1997) 23 EHRR 636 judgment the Court has already noted the unquestionably serious problem of terrorism in south-east Turkey and the difficulties faced by the State in taking effective measures against it. It held in that connection that the particular extent and impact of Kurdish Workers' Party (PKK) activity in south-east Turkey had undoubtedly created, in the region concerned, a 'public emergency threatening the life of the nation' (see the judgment of 18 December 1996, Reports of Judgments and Decisions 1996). (39)It should be noted, however, that Art 15 authorises derogations from the obligations arising from the Convention only 'to the extent strictly required by the exigencies of the situation'. In the present case the Court would be working against the object and purpose of that provision if, when assessing the territorial scope of the derogation concerned, it were to extend its effects to a part of Turkish territory not explicitly named in the notice of derogation. It follows that the derogation in question is inapplicable ratione loci to the facts of the case. Consequently, it is not necessary to determine whether it satisfies the requirements of Art 15.

B.Article 5(1) of the Convention

(40)Before the Commission the applicants maintained that their arrest had been in breach of Art 5(1) of the Convention. In their memorial to the Court, however, they accepted the Commission's conclusion that this provision had not been breached (see para (30) above). Consequently, they presented no argument regarding this complaint. The Court likewise considers that no breach of Art 5(1) has been established.

C.Article 5(3) of the Convention

(41)The applicants alleged that, contrary to Art 5(3) of the Convention, they had not been brought 'promptly' before a judge or other officer authorised by law to exercise judicial power. The Commission accepted this argument in substance. (42)The Government pleaded the nature and scale of the terrorist threat in Turkey and the particular difficulties encountered in taking action to ward off that threat, which was incomparably more serious and more imminent than the threat posed by other examples of terrorism in Europe. In the instant case the public prosecutor had for some considerable time been in possession of information confirming the suspicions of collusion between the applicants and the PKK, but the evidence - 22 ring-binders' full in all - still had to be obtained. That was why it had been necessary to hold the applicants in police custody. Moreover, if they had not chosen to remain silent, thus deliberately adding obstacles to those already encountered by the investigators, they might have been able to cut their detention short. (43)The applicants submitted that the conduct held against them, namely dissemination of what were deemed to be separatist views, did not constitute 'terrorism'. Furthermore, since the authorities had originally applied for the lifting of their parliamentary immunity in November 1992, they must already have been in possession at that time of the evidence necessary to prosecute them. (44)The Court has already accepted on several occasions that the investigation of terrorist offences undoubtedly presents the authorities with special problems (see the Brogan and Others v United Kingdom judgment of 29 November 1988, Series A no 145-B, p 33, § 61, the Murray v United Kingdom judgment of 28 October 1994, Series A no 300-A, p 27, § 58, and the above-mentioned Aksoy judgment). This does not mean, however, that the investigating authorities have carte blanche under Art 5 to arrest suspects for questioning, free from effective control by the domestic courts and, ultimately, by the Convention supervisory institutions, whenever they choose to assert that terrorism is involved (see, mutatis mutandis, the above-mentioned Murray judgment, p 27, § 58). What is at stake here is the importance of Art 5 in the Convention system: it enshrines a fundamental human right, namely the protection of the individual against arbitrary interferences by the State with his right to liberty. Judicial control of interferences by the executive is an essential feature of the guarantee embodied in Art 5(3), which is intended to minimise the risk of arbitrariness and to secure the rule of law, 'one of the fundamental principles of a democratic society..., which is expressly referred to in the Preamble to the Convention' (see the above-mentioned Brogan and Others judgment, p 32, § 58, and the above-mentioned Aksoy judgment). (45)The Court notes that the applicants' detention in police custody lasted 12 days in the case of Mr Sakik, Mr Türk, Mr Alinak and Mrs Zana, and 14 days in the case of Mr Dicle and Mr Dogan. It recalls that in the Brogan and Others case it held that detention in police custody which had lasted 4 days and 6 hours without judicial control fell outside the strict constraints as to time laid down by Art 5(3), even though its purpose was to protect the community as a whole against terrorism (see the above-mentioned Brogan and Others judgment, p 33, § 62). Even supposing that the activities of which the applicants stood accused were linked to a terrorist threat, the Court cannot accept that it was necessary to detain them for 12 or 14 days without judicial intervention. (46)Accordingly, there has been a breach of Art 5(3).

D.Article 5(4) of the Convention

1.The Government's preliminary objection

(47)The Government raised a preliminary objection on the ground of non-exhaustion of domestic remedies. They contended that the applicants had failed to invoke in the national courts, in addition to Art 19(8) of the Constitution (see para (18) above), Art 5(4) of the Convention itself, which, pursuant to Art 90(5) of the Constitution (see para (19) above), has the force of law in Turkey. (48)The Court notes that this preliminary objection was not raised before the Commission. It is therefore inadmissible on grounds of estoppel (see, among other authorities, the Ceteroni v Italy judgment of 15 November 1996, Reports 1996-V, p 1756, § 19).

2.Merits of the complaint

(49)The applicants complained that they had not been able to take proceedings to have the lawfulness of the public prosecutor's decisions ordering their detention in police custody decided by a judge. The Commission accepted this argument. (50)The Government submitted that the review required by Art 5(4) of the Convention was carried out by the single judge who ordered the applicants' detention pending trial (see para (12) above). (51)The Court notes that, irrespective of whether, when ordering the applicants' detention pending trial, the single judge also ruled on the lawfulness of their detention in police custody, that judge did not intervene until the end of the latter, that is to say 12 days, or 14 days in some cases, after their arrest. Having regard to the conclusion it reached with regard to Art 5(3) (see para (46) above), the Court considers that such a lengthy period sits ill with the notion of 'speedily' (see, mutatis mutandis, the Van Droogenbroeck v Belgium judgment of 24 June 1982, Series A no 50, p 29, § 53). (52)The Government further maintained that Art 19(8) of the Constitution (see para (18) above) provided a remedy which was also available before national security courts. Its wording was almost identical to that of Art 5(4) of the Convention, which was itself directly applicable in Turkish law, pursuant to Art 90(5) of the Constitution (see para (19) above). (53)The Court reiterates that the existence of a remedy must be sufficiently certain, failing which it will lack the accessibility and effectiveness required for the purposes of Art (5) (see, among other authorities, mutatis mutandis, the above-mentioned Van Droogenbroeck judgment, p 30, § 54, the De Jong, Baljet and Van den Brink v Netherlands judgment of 22 May 1984, Series A no 77, p 19, § 39, and the Yagci and Sargin v Turkey judgment of 8 June 1995, Series A no 319-A, p 17, § 42). However, the file supplied to the Court contains no example of any person detained in police custody having successfully invoked Art 19(8) of the Constitution or Art 5(4) of the Convention when applying to a judge for a ruling on the lawfulness of his detention or for his release. The Court does not consider itself to be required to determine this question of Turkish law. However, the lack of precedents indicates the uncertainty of this remedy in practice (see, mutatis mutandis, the above-mentioned Van Droogenbroeck judgment, p 31, § 55, and the above-mentioned De Jong, Baljet and Van den Brink judgment, p 19, § 39). (54)In conclusion, there has been a breach of Art 5(4).

E.Article 5(5) of the Convention

1.The Government's preliminary objection

(55)The Government raised a preliminary objection in which they pleaded non-exhaustion of domestic remedies on two grounds. First, the applicants had omitted to rely in the domestic courts on Arts 19(9) and 90(5) of the Constitution read in conjunction with each other (see paras (18) and (19) above). Secondly, they should have sought a remedy under Law No 466 of 7 May 1964, which guarantees the possibility of an award of damages to any person who has been unlawfully deprived of his liberty, or who, after being lawfully detained, is not subsequently committed for trial or is acquitted or discharged after standing trial (see para (24) above). (56)The Court notes that the first limb of this preliminary objection was not raised before the Commission. It is therefore inadmissible on grounds of estoppel (see para (48) above). (57)It also considers that the second limb is closely linked to consideration of the complaint under Art 5(5). It therefore joins it to the merits (see paras (60) and (61) below).

2.Merits of the complaint

(58)Lastly, the applicants alleged that, in breach of Art 5(5), under Turkish law it was not possible for them to claim compensation for a violation of Art (5) in the domestic courts. (59)The Government asserted that this would indeed have been possible if there had been any such violation, which was not the case. The applicants could have relied on the last paragraph of Art (19) of the Constitution, whose wording had been modelled on Art 5(5) of the Convention, which was itself directly applicable in the Turkish legal system, pursuant to Art 90(5) of the Constitution (see para (19) above). Furthermore, they could have relied, as a lex specialis, on s 1 of Law No 466 on the payment of compensation to persons unlawfully arrested or detained (see para (24) above). As they had not availed themselves of either of these possibilities, the applicants were not entitled to complain of a breach of para (5). (60)As in connection with Art 5(4) (see para (53) above), the Court notes that there is no example in the case file of any litigant obtaining the compensation referred to in Art 5(5) by relying on one of the provisions mentioned by the Government. With particular reference to s 1 of Law No 466, the Court notes, like the Commission and the applicants, that with the exception of the situation - which did not obtain in the instant case - where a person is not committed for trial, or is acquitted or discharged after standing trial (subs 6), all the cases in which compensation is payable under the provision concerned require the deprivation of liberty to have been unlawful. But the detention in issue was in accordance with Turkish law, as the Government conceded.

In conclusion, effective enjoyment of the right guaranteed by Art 5(5) of the Convention is not ensured with a sufficient degree of certainty (see, mutatis mutandis, the Ciulla v Italy judgment of 22 February 1989, Series A no 148, p 18, § 44).

(61)Consequently, the Court dismisses the second limb of the Government's preliminary objection and concludes that there has been a breach of Art 5(5).

II.Application of Art 50 of the Convention

(62)Under Art 50 of the Convention:

'If the court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.'

A.Non-pecuniary damage

(63)The applicants claimed compensation for the non-pecuniary damage resulting from the deprivation of their liberty, which, they asserted, had been aggravated by the damage to their 'reputations as members of parliament'. They each claimed 600,000 French francs (FRF) for prejudice suffered in their 'private capacity' and the same amount for 'damage to their reputations as members of parliament'. (64)The Government submitted that, if the Court were to find a violation, the judgment would in itself constitute sufficient just satisfaction for the purposes of Art 50. They argued that the applicants' claims were based on concepts which had nothing to do with the Court's case-law and were neither justified nor founded, since there was no proof of any causal connection between the length of their detention in police custody and the non-pecuniary damage they had alleged. If there had been any damage to the applicants' 'reputations as members of parliament', this had been caused not by their detention in police custody but by the lifting of their parliamentary immunity by the Turkish National Assembly. (65)The Delegate of the Commission submitted that compensation should be awarded, but considered the sum claimed excessive. (66)The Court notes that the applicants were detained in police custody for 12 days (Mr Sakik, Mr Türk, Mr Alinak and Mrs Zana) or 14 days (Mr Dicle and Mr Dogan) without judicial intervention. It is in no doubt that the circumstances in which they were deprived of their liberty must have caused them non-pecuniary damage for which the domestic courts have not awarded them any compensation. Taking into account the various aspects of the case and making an assessment on an equitable basis, as required by Art 50, the Court awards FRF 25,000 each to Mr Sakik, Mr Türk, Mr Alinak and Mrs Zana and FRF 30,000 each to Mr Dicle and Mr Dogan. These sums are to be converted into Turkish liras (TRL) at the rate applicable on the date of settlement.

B.Costs and expenses

(67)In respect of their costs and expenses for representation before the Turkish authorities and later before the Convention institutions, the applicants claimed FRF 344,546. (68)The Government considered that sum exorbitant and unjustified, in particular because it included the cost of numerous group journeys between Paris and Ankara and was based on an hourly rate which bore no comparison with the normal rate in Turkey. (69)The Delegate of the Commission left the matter to the Court's discretion. (70)Making an assessment on an equitable basis and according to the criteria laid down in its case-law (see, among other authorities, the Nideröst-Huber v Switzerland judgment of 18 February 1997, Reports 1997), the Court awards the applicants FRF 120,000 under this head.

C.Default interest

(71)The Court deems it appropriate to adopt the statutory rate applicable in France on the date of adoption of the present judgment, that is 3.87% pa.

FOR THESE REASONS, THE COURT UNANIMOUSLY:

(1)Holds that the derogation made by Turkey under Art 15 of the Convention is not applicable in the case; (2)Holds that there has been no breach of Art 5(1) of the Convention; (3)Holds that there has been a breach of Art 5(3) of the Convention; (4)Dismisses the Government's preliminary objection relating to Art 5(4) of the Convention; (5)Holds that there has been a breach of Art 5(4) of the Convention; (6)Dismisses both limbs of the Government's preliminary objection relating to Art 5(5) of the Convention, the second of which it joined to and considered with the merits; (7)Holds that there has been a breach of Art 5(5) of the Convention; (8)Holds

(a)that the respondent State is to pay, within 3 months, the following sums:

(i)for non-pecuniary damage, 25,000 (twenty-five thousand) French francs each to Mr Sakik, Mr Türk, Mr Alinak and Mrs Zana and 30,000 (thirty thousand) French francs each to Mr Dicle and Mr Dogan, which sums are to be converted into Turkish liras at the rate applicable on the date of settlement;

(ii)for costs and expenses, 120,000 (one hundred and twenty thousand) French francs to the applicants;

(b)that simple interest at an annual rate of 3.87% shall be payable on these amounts from the expiry of the above-mentioned 3 months until settlement;

(9)Dismisses the remainder of the claim for just satisfaction.
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