European Court of Human Rights

SECOND SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 18992/03
by Turgay ELĞAY
against Turkey

The European Court of Human Rights (Second Section), sitting on 11 September 2007 as a Chamber composed of:

Mrs F. Tulkens, President,
Mr A.B. Baka,
Mr I. Cabral Barreto,
Mr R. Türmen,
Mr M. Ugrekhelidze,
Mrs A. Mularoni,
Mr D. Popović, judges,
and Mrs S. Dollé, Section Registrar,

Having regard to the above application lodged on 22 April 2003,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Turgay Elğay, is a Turkish national who was born in 1983 and lives in Istanbul. He is represented before the Court by Mrs M. Avcı, a lawyer practising in İstanbul.

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant was a chauffeur in a private company in İstanbul before the events giving rise to the present application occurred.

On 10 July 2002 the applicant was stopped by traffic police. While with the police officers, the applicant’s mobile telephone rang and the officers noticed that there was a photograph of Abdullah Öcalan and the slogans “Biji Serok Apo” (“Long live president Apo”) and “Biji Kurdistan” (“Long live Kurdistan”) on the telephone screen. When the police officers searched the text messages in the telephone’s memory they found a further message, stating “Biji Apo, Biji Kurdistan, Biji KADEK” (“Congress for liberty and democracy in Kurdistan”). They then arrested the applicant and took him to the anti-terrorist branch of the Istanbul Security Headquarters.

On the same day, the applicant made statements to the police and the Gebze Magistrates’ Court. The applicant told the police that he was involved in the activities of the PKK (the Kurdistan Workers’ Party), an illegal organisation, but before the Magistrates’ Court he retracted his police statements and contended that he had signed their documents out of fear. He told the Magistrates’ Court that he had no connection with the PKK and that the photograph and message had been sent to him by a friend. He denied having disseminated them. The Magistrates’ Court remanded the applicant in custody, having regard to the nature of the alleged offence, the state of the evidence and the applicant’s statements to the police.

On 11 July 2002 the applicant lodged an objection to the remand order.

On the same day, the Gebze public prosecutor issued a decision of lack of jurisdiction. The investigation file was subsequently transferred to the public prosecutor’s office at the Istanbul State Security Court.

On 1 August 2002 the public prosecutor at the Istanbul State Security Court filed a bill of indictment charging the applicant with membership of the PKK under Article 168 § 2 of the former Criminal Code. In the indictment the public prosecutor noted, in support of the charge, the photograph and the messages found in the mobile telephone, as well as the fact that the applicant had attended meetings of the Sultanbeyli branch of the HADEP (the People’s Democracy Party) and was involved in the activities of the youth branch and the folk dance group of that Party,. The public prosecutor also noted that the applicant had made propaganda in favour of the PKK at the Sultanbeyli branch of the HADEP and at wedding parties.

On 12 August 2002 the applicant’s trial began before the Istanbul State Security Court. The court took up procedural matters and ordered the applicant’s continued detention, having regard to the nature of the alleged offence, the state of the evidence and the date of the initial order for the applicant’s detention.

On 25 October 2002, the applicant requested the first-instance court to order the mobile telephone company to provide information as to whether the applicant had disseminated the photograph of Abdullah Öcalan and the messages containing the slogans.

On 25 October 2002 the State Security Court held the first hearing in the case, took the applicant’s statement and accepted the request. At the end of the hearing, the court ordered the applicant’s release pending trial, in view of the state of the evidence and the nature of the offence.

On 5 September 2003 the Istanbul State Security Court acquitted the applicant, holding that there was no evidence demonstrating that the applicant had made propaganda for the PKK as he had not disseminated the photograph or the messages.

COMPLAINTS

The applicant complained under Article 5 §§ 1 (c) and 3 of the Convention that there had been no reasonable suspicion to justify his arrest and subsequent detention, whose length had exceeded the “reasonable time” requirement.

The applicant next complained under Article 5 § 5 of the Convention that he had had no right to compensation in domestic law for the alleged violations of Article 5 of the Convention.

Finally, the applicant complained under Article 13 of the Convention that there was no effective remedy in domestic law to challenge the lawfulness of his detention.

THE LAW

2. As regards the applicant’s complaint under Article 5 § 1 (c) that there had been no reasonable suspicion to justify his arrest or the order of the Magistrates’ Court to detain him, the Court reiterates that the reasonable suspicion referred to in Article 5 § 1 (c) of the Convention does not mean that the suspected person’s guilt must have already been established at that stage. It is precisely the purpose of the investigation that the reality and nature of the charges laid against the accused should be proved (see Murray v. the United Kingdom, judgment of 28 October 1994, Series A no. 300-A, p. 27, § 55). Sub-paragraph (c) of Article 5 § 1 does not even presuppose that the police should have obtained sufficient evidence to bring charges, either at the point of arrest or while the applicant was in custody (see Erdagöz v. Turkey, judgment of 22 October 1997, Reports of Judgments and Decisions 1997-VI, p. 2314, § 51).

In the instant case, the Court observes that the applicant was taken into custody by police officers who noticed that there was a photograph of Abdullah Öcalan and slogans in Kurdish on the screen of the applicant’s mobile telephone. When the officers looked at the text messages in the memory of the telephone, they found a further message containing the slogans “Biji Apo, Biji Kurdistan, Biji KADEK”. The Court notes that the applicant was questioned both by the police and the judge at the Magistrates’ Court about whether he had disseminated the photograph and messages containing these slogans via text messages.

In the circumstances of the case, the Court is of the opinion that the suspicion that the applicant had been involved in the activities of an illegal organisation was justifiable under Article 5 § 1 (c), and the purpose of the deprivation of liberty was to confirm or dispel that suspicion. It further considers that the fact that the applicant was eventually acquitted of the charges against him does not, of itself, call into question the reasonableness of the original suspicion, as understood by Article 5 § 1 (c) of the Convention (see Baz and Others v. Turkey, no. 76106/01, § 18, 3 May 2007).

The applicant can accordingly be said to have been arrested and detained on “reasonable suspicion” of having committed a criminal offence within the meaning of Article 5 § 1 (c). It follows that this part of the application is to be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

3. As to the complaint of excessive length under Article 5 § 3 of the Convention, the Court notes that the period to be taken into account began on 10 July 2002, when the applicant was arrested and remanded in custody, and ended on 25 October 2002, when the Istanbul State Security Court held the first hearing in the case and ordered the applicant’s release pending trial. It thus lasted three months and fifteen days. By the standards of the Court’s case-law, this is not, in itself, a long time.

On 10 July and 12 August 2002 the first-instance court extended the applicant’s detention having regard to the nature of the alleged offence and the state of the evidence. The Court notes that these decisions were not particularly detailed. However, in view of the relatively short period involved, the Court considers that the reasonable suspicion that the applicant had committed an offence may be deemed to have persisted. Furthermore, the State Security Court ordered the applicant’s release pending trial at the first hearing in the case after gathering certain information about the applicant.

In the light of these circumstances, the Court concludes that the length of the applicant’s detention did not exceed the “reasonable time” requirement. It follows that the complaint under Article 5 § 3 is also to be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

The Court considers that the applicant’s latter complaint under Article 13 should be examined under Article 5 § 4 of the Convention, being the lex specialis in the matter. However, it cannot, on the basis of the case file, determine the admissibility of these complaints at the present stage. It is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

For these reasons, the Court unanimously

Decides to adjourn the examination of the complaints concerning the applicant’s right to take proceedings to challenge the lawfulness of his detention and to an enforceable right to compensation;

Declares the remainder of the application inadmissible.

S. Dollé F. Tulkens
Registrar President