AS TO THE ADMISSIBILITY OF

                      Applications Nos. 16311/90, 16312/90 and 16313/90
                      by N.H., G.H., R.A.
                      against Turkey

        The European Commission of Human Rights sitting in private
on 11 October 1991, the following members being present:

              MM. C.A. NØRGAARD, President
                  J.A. FROWEIN
                  S. TRECHSEL
                  F. ERMACORA
                  G. SPERDUTI
                  A.S. GÖZÜBÜYÜK
                  A. WEITZEL
                  J.-C. SOYER
                  H.G. SCHERMERS
                  H. DANELIUS
             Mrs.  G. H. THUNE
             Sir  Basil HALL
              Mr.  C.L. ROZAKIS
             Mrs.  J. LIDDY
             MM.  L. LOUCAIDES
                  A.V. ALMEIDA RIBEIRO
                  M.P. PELLONPÄÄ

             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 applications introduced on 9 November 1989
by N.H., G.H. and R.A. against Turkey and registered on 16 March 1990
under file No. 16311/90, file No. 16312/90 and file No. 16313/90
respectively;

        Having regard to the report provided for in Rule 47 of the
Rules of Procedure of the Commission;

        Having regard to the written observations submitted by the
respondent Government on 26 October 1990 and the observations in reply
submitted by the applicants on 18 January 1991;

        Having regard to the oral observations of the parties
presented at the hearing of 11 October 1991;

        Having deliberated;

        Decides as follows:

THE FACTS

        The facts, as submitted by the parties, may be summarised as
follows:

        The first applicant, N.H., a Turkish national born in
1953, is resident in Izmir.  She is a doctor.

        The second applicant, G.H., a Turkish national, born in
1954, is the first applicant's husband and resident in Izmir.  He is a
journalist.

        The third applicant, R. A., a Turkish national born in
1947, lives in Izmir.  He is an accountant.

        In the proceedings before the Commission the applicants are
represented by Mrs.  Sibel Bilge Uslu and Mr.  H. Ibrahim Uslu, lawyers
practising in Izmir.

        On 7 September 1987 the applicants were taken into custody at
the Izmir Security Department by the Izmir police.  They were accused
of being members of the Communist Party of Turkey.  The first applicant
was also accused of being a member of the Communist Party's regional
executive.  The applicants' membership of the Communist Party had
allegedly been revealed during the interrogation of other detainees
who were accused of the same offence.

        The applicants were questioned by the police.  They were held
incommunicado without access to their lawyers or families until 20
September 1987.  On that day they were brought before the Public
Prosecutor and taken back during the evening to the Security
Department.

        On 21 September 1987 they were taken before a judge for the
first time, charged and remanded in custody.

        In an indictment dated 28 September 1987, the Public
Prosecutor at the Izmir Security Court charged the applicants with
being members of an association aiming at the domination of a
particular social class.  He requested a sentence of between five and
eight years' imprisonment under Article 141 para. 5 of the Turkish
Criminal Code.  According to the indictment:

-       the first applicant had denied the charges against her.
However, having been caught redhanded while carrying a suitcase
containing the party's working papers, two co-accused, A.U. and S.K.,
had declared that she was a member of the Communist Party.
Moreover, an organisational chart of the party, prepared by the
applicant, had been found in the house of another accused person who
had stated that he had received from the applicant a suitcase
containing the party's working papers;

-       the second applicant had admitted the charges against him to
the police while he had denied them before the Public Prosecutor.
Moreover, two co-accused had stated that the second applicant was
collaborating with the Communist Party.  He was a member of the Turkish
Workers' Party, working for the "Union of the Left" and had
transmitted to his wife, the first applicant, two reports entitled
"The relationship between the working class and intellectuals" and
"The Proceedings of the Party Conference";

-       the third applicant had admitted the charges against him to
the police and the Public Prosecutor.  Two other accused who had been
arrested, A.U. and H.Ö, had also admitted that he was a member
of the Communist Party.  According to a handwriting expert one of the
handwritten reports found in the suitcase carried by A.U. and S.K.
belonged to this applicant.

        In the proceedings before the Izmir Security Court, one of the
co-accused, A.U., stated that he had denounced the first applicant and
the third applicant under torture during the fourteen days of police
custody.  He had maintained his statement before the investigating
judge who had threatened to send him back to the police headquarters.

        Another co-accused, S.K., also stated that she had been
tortured while in police custody and that was why she had confessed to
the offences allegedly committed as the accomplice of the first
applicant.  During the hearing before the Court S.K. retracted the
statements she had made to the police concerning the two applicants.
Another co-accused, H.Ö., also retracted his statements concerning the
third applicant.  He declared that he had made them under police
pressure.

        In the proceedings before the State Security Court the
applicants and the other accused stated that they had been subjected
to torture and ill-treatment during their police custody.  They alleged
that this was why they had confessed and denounced the others.

        The applicants' lawyers complained that the preliminary
investigation had been conducted in the absence of the defence and
that their clients had made their statements to the police under
torture.  They invoked the provisions of the European Convention for
the Prevention of Torture and Inhuman or Degrading Treatment or
Punishment and requested that the Court remove from the file the
applicants' statements to the police.

        The applicants' lawyers also stated that the Public Prosecutor
did not carry out the investigation himself.  The political section of
the Izmir police did not inform the Public Prosecutor about the
applicants' arrest until seven days later.  While the drafting of the
applicants' statements was terminated on the eighth day of the police
custody, the police waited five more days before bringing them before
the Public Prosecutor in order to let the traces of torture disappear
in the meantime.  The delay of seven days before informing the Public
Prosecutor and the delay of five days before bringing the applicants
before the Public Prosecutor after having obtained their statements
made their detention unlawful and constituted an offence under Turkish
law.

        The applicants' lawyers submitted that the offence under
Article 141 of the Turkish Criminal Code had been introduced into
Turkish law in 1936 and was an adaptation of the Italian Code of State
Security which had been drawn up during the time of Mussolini.  After
the amendments to this Article on 16 July 1938, which removed the
expression "by force", this offence was constituted solely by
adherence to a particular opinion.

        In a judgment dated 29 November 1988 the Izmir State Security
Court sentenced the applicants to four years and two months'
imprisonment.  The Court stated that it had taken into account the
statements made to the police only in so far as they had been
confirmed by other material evidence.  It observed that the provisions
of the European Convention for the Prevention of Torture and Inhuman
or Degrading Treatment or Punishment were not directly applicable by
the national courts as the Turkish legislator had not yet amended
domestic law in accordance with the provisions of that Convention.  The
Court further noted that Article 141 of the Turkish Criminal Code was
still in force and that the Constitutional Court had not held this
Article to be unconstitutional or contrary to freedom of thought.  The
Court found that the Communist Party of Turkey was an association of
the type defined in that Article and membership of the Communist Party
of Turkey was sufficient evidence to show that the offence had been
committed, even if the defendant was not guilty of any act of
violence.

        On 10 May 1989 the Court of Cassation upheld this judgment,
ruling that the trial court had rejected the allegations of the
defence for cogent reasons and that examination of the file did not
disclose any error in the contested judgment.

        The applicants were conditionally released on 29 November
(R. Açik) and 7 December 1988 (N. and G. Hazar) respectively.

COMPLAINTS

        The applicants allege violations of Article 3, Article 5
paras. 1 (a), (c), 3 and 4, Article 6 paras. 1, 3 (a), 3 (b) and 3 (d) and
Articles 9, 10, 11 and 14 of the Convention taken alone or in
combination with the other Articles.

1)      Under Article 3 the applicants claim that they were subjected
to torture and ill-treatment by the Izmir police while held
incommunicado in police custody.

        The first applicant complains that she was blindfolded from the
first day of her custody and that for nine days she had to stand up
almost without food or drink and that on the ninth day of her custody
she started having hallucinations.  For the whole of that time she was
held in total isolation without access to her lawyer or her family.
She also complains about police pressure to make her confess to the
charges against her and give information about her activities in the
Communist Party and her contacts with other members.

        The second applicant also alleges that he was blindfolded from
the first day of his custody in isolation.  He complains that he was
beaten, deprived of food and drink, sprayed with cold water and
subjected to electrical shocks.  He claims to have confessed to all the
charges against him and his wife because he could not stand the
torture inflicted on him.

        The third applicant also alleges that he was blindfolded from
the first day of his custody in isolation.  He complains that he was
left standing for long periods with little food or drink and that he
was beaten on the soles of his feet, suspended from the ceiling,
subjected to electrical shocks and sprayed with cold water.  He alleges
that he was under police pressure to confess to the charges against
him and to give information about his activities and relations within
the organisation.

2)      Under Article 5 of the Convention, the applicants allege
violations of:

-       paras. 1 (a) and 1 (c) in that they were not kept in police
custody so that they could be brought before the judicial authorities
or because there were reasonable suspicions against them but with the
purpose of extracting information and confessions from them by force.
During their first seven days in custody the police interrogated the
applicants without informing the Public Prosecutor of their arrest.
Moreover, in spite of the fact that their statements had already been
taken down, the police officers kept them unlawfully in custody five
more days before bringing them before the legal authorities in order
to let the traces of torture disappear in the meantime.  After
appearing before the Public Prosecutor and making new statements, they
were taken back to the police headquarters where they spent the night
in police custody;

-       para. 3 in that they were kept in police custody for fourteen
days without being brought before a judge and in that they were
interrogated under pressure;

-       paras. 1 and 3 in that the length of their detention on remand
(one year, 2 months and 22 days) exceeded a reasonable time.  They
observe that the State Security Court, a special court, was set up to
speed up the procedure;

-       para. 4 in that Turkish law does not afford any effective
remedy by which the lawfulness of their police custody could be
decided speedily by a Court.  They claim that they were deprived of any
possibility of contact with their lawyers.

3)      Under Article 6 para. 1 of the Convention the applicants
submit that their case was not heard by an independent and impartial
tribunal.  The members of the State Security Court are appointed by the
High Council of Judges and Prosecutors.  The President of this Council
is the Minister of Justice and two other members also hold office in
the Ministry of Justice.  One of the three members of the State
Security Court is a military judge responsible to his military
superiors.  The State Security Courts are extraordinary jurisdictions
dealing with political offences.

4)      Furthermore, the applicants submit under Article 6 para. 1 of
the Convention that their trial was unfair in that the State Security
Court mainly took into account in its judgment the statements made by
them and their co-accused to the police under torture.

5)      The applicants further allege violations of:

-       Article 6 para. 3 (a) of the Convention in that, while in
police custody, they were not informed of the precise nature and cause
of the charges against them.  They were kept in police custody with the
sole purpose of having confessions and information extracted from them
about their co-accused;

-       their right under Article 6 para. 3 (b) of the Convention to
have adequate time and facilities for the preparation of their defence
while in police custody.  They were blindfolded for the whole of this
period and were deprived of any possibility of contact with their
lawyers;

-       Article 6 para. 3 (c) of the Convention in that during their
interrogation by the police they were refused the assistance of their
lawyers.  However, the evidence on which the indictment was based and
especially the applicants' confessions were obtained during their
police custody;

-       Article 6 para. 3 (d) of the Convention in that they could not
obtain the examination of the police officers as witnesses before the
Court.  The hearing of these witnesses who had carried out the
enquiries about the documents found in a suitcase could have proved
that they were not involved in this case.

6)      Finally, the applicants allege violations of Articles 9, 10
and 11 taken alone or in conjunction with Article 14 of the Convention
in that they were sentenced to four years and two months'
imprisonment merely for being members of the Communist Party of
Turkey.


PROCEEDINGS

        The applications were introduced on 9 November 1989 and
registered on 16 March 1990.

        On 13 July 1990 the Commission examined the applications.
Pursuant to Rule 42 para. 2 (b), which has since become Rule 48 para.
2 (b) of its Rules of Procedure, it decided to give notice of the
applications to the respondent Government and to invite them to
present their written observations on the admissibility and merits of
the complaints under Articles 3, 6, 9, 10, 11 and 14 of the
Convention.

        The Government submitted their observations on the
admissibility of the applications on 26 October 1990.  The applicants'
observations in reply were received on 18 January 1991 after an
extension of the time-limit.

        On 28 May 1991 the Commission decided to invite the parties
to a hearing on the admissibility and merits of the applications.

        The hearing took place on 11 October 1991.  The parties were
represented as follows:

For the Government

-       Mr.  Münci ÖZMEN                Legal Adviser at the Ministry of
                                       Foreign Affairs, acting Agent
-       Professor Heribert GOLSONG     Counsel

-       Mrs.  Deniz AKCAY               Deputy Permanent Representative

-       Mr.  Cenk Alp DURAK             Judge at the Directorate General
                                       of Criminal Affairs at the
                                       Ministry of Justice, Counsel

For the applicants

-       Mrs.  Sibel Bilge USLU          of the Izmir Bar


THE LAW

I.      Article 3 (Art. 3) of the Convention

        The applicants allege violations of Article 3 (Art. 3) of the
Convention in that they were subjected to torture and inhuman and
degrading treatment while held incommunicado in police custody at
the Izmir Security Department.  Article 3 (Art. 3) of the Convention
reads as follows :

        "No one shall be subjected to torture or to inhuman or
        degrading treatment or punishment."

(i)     Exhaustion of domestic remedies

        The Commission will consider these complaints in their two
branches : a) as regards allegations of specific acts of
ill-treatment, and b) as regards detention incommunicado as such.

a)      The respondent Government argue that the applicants failed to
exhaust the domestic remedies available to them under Turkish law, as
required by Article 26 (Art. 26) of the Convention, in that they did
not file a complaint to the competent Public Prosecutor in order to
obtain an investigation of their allegations by the Turkish
authorities.

        The applicants consider that they have satisfied the condition
laid down in Article 26 (Art. 26) in that, in the course of the
proceedings before the State Security Court, they complained of the
ill-treatment to which they had been subjected during the police
custody.  They had informed the Public Prosecutor of this treatment
before the indictment was read out and they subsequently submitted a
detailed report on their conditions of detention while in police
custody.  Moreover, they requested that the statements they made in
the course of the police custody be removed from their files.

        The Government consider that the course of action chosen by
the applicants was not sufficient for the purpose of Article 26 (Art.
26), since it could not lead to redress of the situation complained
of.  Neither the Public Prosecutor at the State Security Court nor the
Court itself could examine such allegations as such.  If the Public
Prosecutor had considered these allegations to be serious or credible,
he could only have referred them to the competent local Public
Prosecutor. Furthermore the Court itself could discard evidence
obtained under these circumstances.

        The Commission observes that the applicants raised in the
proceedings before the State Security Court and then before the Court
of Appeal their detailed complaints concerning their alleged
ill-treatment during their time in police custody.  The Commission
notes that, under Turkish law, the applicants were entitled to
complain at the trial if their statements to the police had been made
under torture and that ill-treatment of prisoners by police officers
is to be prosecuted ex officio.  The Commission is therefore satisfied
that the applicants have availed themselves of a proper remedy under
Turkish law in that they raised their complaint of ill-treatment at
their trial, first with the Public Prosecutor and subsequently before
the State Security Court and the Court of Cassation.  It concludes from
the Government's submissions that the Public Prosecutor did not refer
the complaint to the competent local Public Prosecutor, because he did
not consider the allegations to be credible, and that, for the same
reason, the Court did not discard the evidence obtained during the
applicants' detention incommunicado.

        The Commission has next examined whether the applicants were
nevertheless required to avail themselves of the further remedy
indicated by the Government by addressing a criminal complaint to the
competent Public Prosecutor.  The Commission here observes that the
present complaint concerns primarily a question of evidence and that
the reason why the applicants were unsuccessful in raising it at their
trial was that the State Security Court and the Public Prosecutor did
not find that there was sufficient evidence to support their detailed
allegations.  The Commission therefore considers that the applicants,
if they had availed themselves of the remedy indicated by the
Government, would have been faced with the same problem of proving
that they had in fact been ill-treated.  The Commission here notes that
during their interrogation by the police the applicants were held in
isolation without access to their lawyers and their families;
according to the applicants the police subsequently kept them in
custody for five more days before bringing them before the legal
authorities in order to let the traces of torture disappear in the
meantime.  The Commission considers that the applicants' failure to
prove their allegations of torture at their trial creates a
presumption to the effect that the remedy indicated by the Government
would not have had any chance of giving the applicants satisfaction
(cf., mutatis mutandis, No. 2686/65, Kornmann, Dec. 13.12.66, Yearbook 9
p. 495 at p. 510; Nos. 14116/88 and 14117/88, Sargin and Yagci, Dec.
11.5.89, to be published in D.R., see also Revue universelle des
droits de l'homme 1989 p. 516).  For this reason the applicants were
not obliged to exhaust the said remedy in order to comply with Article
26 (Art. 26) of the Convention.

b)      The Government have not mentioned any domestic remedy
available to the applicants with regard to their detention
incommunicado, by the police, as such.  Apparently this particular
form of detention was an administrative practice.  The Commission
notes, however, that the applicants referred to their detention
incommunicado before the State Security Court and the Court of
Cassation in support of their complaints that their confessions had
been obtained by torture, in violation of Article 3 (Art. 3) of the
Convention, and that their rights of defence under Article 6 (Art. 6)
of the Convention had been restricted - complaints which were finally
determined at the domestic level by the Court of Cassation.

        The applicants have thus also complied with the six months'
time-limit laid down in Article 26 (Art. 26) of the Convention.

        The Commission concludes in respect of the applicants'
complaints under Article 3 (Art. 3) of the Convention that the
Government's objection of non-exhaustion of domestic remedies must be
rejected and that the applicants have complied with the six months'
rule.

(ii)    Merits

        The Government submit that the applicants have failed to
substantiate their allegations or introduce any evidence
whatsoever to support their claims that they were subjected to
treatment contrary to Article 3 (Art. 3) of the Convention.  They
were examined on two occasions, at the beginning and at the
end of police custody.  The forensic reports showed that there were no
bruises or marks consistent with ill-treatment.  As to the fourteen
days of custody spent incommunicado, the applicants did not
mention any psychological torture.

        The applicants submit that they were subjected to torture and
ill-treatment as explained in their complaints.  The contents of their
statements to the police clearly show that they were forced to give
information about themselves and their contacts.  The Public Prosecutor
tried to cover up the ill-treatment inflicted by the police by saying
that he had himself ordered the investigations, in spite of the fact
that he had not been informed of the applicants' arrest until seven days
after the event.

        The Commission has conducted a preliminary examination of the
parties' submissions.  It notes that the applicants were for fourteen
days held in detention incommunicado and that they have provided
detailed descriptions of their alleged ill-treatment during this
period.  The Commission considers that the complaints under Article 3
(Art. 3) of the Convention raise complex issues of law and fact, the
resolution of which requires an examination of the merits.  It follows
that these complaints are not manifestly ill-founded within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

II.     Article 5 (Art. 5) of the Convention

        The applicants allege violations of Article 5 paras. 1 (a), 1
(c), 3 and 4 (Art. 5-1-a, 5-1-c, 5-3, 5-4) of the Convention in that:
-       they were not arrested for the purpose of being brought before
a judge but rather with the intention of extracting information and
confessions from them;
-       they were kept in police custody for fourteen days;
-       while in police custody, they had no remedy to challenge its
lawfulness;
-       the length of their detention on remand was not reasonable.

        However, the Commission is not required to decide whether or
not the facts alleged by the applicants disclose any appearance of a
violation of Article 5, as Article 26 (Art. 5, 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 notes that the applicants were deprived of
their liberty until 29 November and 7 December 1988 respectively,
whereas the applications were introduced on 9 November 1989, i.e. more
than six months later.  It follows that the complaints under Article 5
(Art. 5) of the Convention have been introduced out of time and must
therefore be rejected under Article 27 para. 3 (Art. 27-3) of the
Convention.

III.    Article 6 (Art. 6) of the Convention

(i)     Independence and impartiality of the Courts

        The applicants complain that their case was not heard by an
independent and impartial tribunal as required by Article 6 para. 1
(Art. 6-1) of the Convention, which reads as follows:

        "In the determination ... of any criminal charge against him,
        everyone is entitled to a ... hearing ... by an independent
        and impartial tribunal established by law."

        The Government maintain that the State Security Courts, which
are special courts set up to deal with offences against the existence
and continuity of the State, are ordinary courts, given that they were
established in accordance with the provisions of Article 143 of the
Constitution.  As they are independent judicial organs, no public
authority or agent could give instructions to such courts.  State
Security Courts are composed of three members one of whom is a
military judge.  A civil judge acts as president and all judges have
attained the first grade in the career scale.  The presence of a
military judge in the Court does not prejudice its independence, this
judge being a judge by career and not belonging to the military.  The
judges of State Security Courts evaluate the evidence and take their
decisions in accordance with the law and on their own conscientious
conviction as required by Article 138 of the Turkish Constitution.  The
verdicts of such courts are subject to review by the High Court of
Appeal.

        The applicants argue that the State Security Courts were
established in 1984 to replace extraordinary military courts for the
hearing of cases regarding certain offences, especially political
offences.  The State Security Court established after 1984 should not

have tried the applicants, who had been accused of crimes which had
occurred in 1981-1982.  The High Council of Judges and Prosecutors
which appoints the judges of the State Security Courts and which may
influence their careers is under pressure from the executive given the
fact that its President is the Minister of Justice and the two other
members are from the Ministry of Justice.  The judges and prosecutors
are supervised by inspectors of justice from the Ministry.  The
presence of a military judge and a number of military prosecutors at
the State Security Court causes a problem concerning the independence
of that court, the military judges being responsible to their
commander as military officers.

        The Commission has conducted a preliminary examination of the
parties' submissions.  It considers that in this respect the
applications raise issues of fact and law, the resolution of which
requires an examination of the merits.  It follows that this part of
the applications is not manifestly ill-founded.

(ii)    "Fair trial"

        The applicants complain that their trial was not fair as
required by Article 6 para. 1 (Art. 6-1) of the Convention in that their
statements to the police were taken into account by the trial court.
They also claim that they were not promptly informed of the charges
against them (Article 6 para. 3 (a) (Art. 6-3-a)), that they did not
have adequate time and facilities during their time in police custody
for the preparation of their defence (Article 6 para. 3 (b) (Art.
6-3-b)), that they did not have access to their lawyers during their
police custody (Article 6 para. 3 (c) (Art. 6-3-c)) and that their
request to have the police officers brought as witnesses before the
Court was refused (Article 6 para. 3 (d) (Art. 6-3-d)).

        The Government submit that the applicants and the other
accused were in possession of all the information required for their
defence.  They became aware of the accusations brought against them
when being interrogated by the police, given the fact that the alleged
offences appeared at the top of the statements they signed.  The
applicants had been notified by the arrest warrant about the basis and
the reasons for their arrest on the day following their arrest.  They were
charged in an indictment dated 28 September 1987, indicating the
nature and the elements of the offences they had committed, the
applicable provisions of law, the supporting evidence, the acts of the
accused etc.  The applicants were defended by their lawyers from the
beginning of the trial.  Both the applicants and their lawyers had
every facility for the preparation of a full and free defence.  Under
Article 136 of the Code of Criminal Procedure and a circular from the
Ministry of Justice, the applicants could have asked for lawyers while
in custody but they did not avail themselves of that opportunity.  The
verdict was not based on statements made to the police.  The right to
keep silent and the right to defend oneself are recognised by the
Constitution.  The first applicant did not answer the questions put
by the police.  The criminal charges within the meaning of Article 6
para. 1 (Art. 6-1) of the Convention were laid in the indictment dated 28
September 1987.  The evidence on which the verdict was based was
discussed after this date and during the trial stage.  The Court's
refusal to hear the police officers who arrested the applicants did
not influence the verdict.

        The applicants maintain that the statements made by co-accused
with regard to themselves and their own statements had been extracted
under torture.  Nevertheless, the Public Prosecutor drew up the
indictment on the basis of these documents and submitted them to the
registry of the Court.  Moreover, during the hearings, the State
Security Court read the statements made by the applicants to the
police during their custody, in spite of the lawyers' objections and
in spite of all the complaints of ill-treatment.  The applicants had
been forced, while in police custody, to give information about the
members of the Communist Party and about their relationship with the
Party.  They were not informed about the charges against them.  During
their detention in police custody, they were denied facilities for
preparing their defence.  They did not have access to their lawyers,
the political section of the police being closed to everybody,
including lawyers.  They were held incommunicado during this time
in violation of Article 136 of the Code of Criminal Procedure, which
stipulates that the client must be able to meet his lawyer at every
stage of the proceedings.  The Court refused to hear the policemen and
two other detainees (not accused but held in custody with the
applicants) as witnesses in order to determine the relationship
between the applicants and the Turkish Communist Party.

        The Commission has conducted a preliminary examination of the
parties' submissions.  It considers that also in this respect the
applications raise complex issues of law and fact, the resolution of
which requires an examination of the merits.  It follows that also this
part of the applications is not manifestly ill-founded.

IV.     Articles 9, 10 and 11 in conjunction
        with Article 14 (Art. 9+14, 10+14, 11+14) of the Convention

        The applicants complain of violations of Article 9 (Art. 9)
(freedom of thought), Article 10 (Art. 10) (freedom of expression) and
Article 11 (Art. 11) (freedom of association), taken alone or in
conjunction with the prohibition of discrimination in Article 14 (Art.
14) of the Convention, in that they were sentenced to four years and
two months' imprisonment for being members of the Turkish Communist
Party.

(i)     Exhaustion of domestic remedies

        The Government argue that the applicants failed to exhaust a
domestic remedy in that in the course of the proceedings they neither
invoked Articles 9, 10, 11 and 14 (Art. 9, 10, 13, 14) of the
Convention nor asked the Court to refer the case to the Constitutional
Court.

        The applicants reply that they did not challenge Article 141
and 142 of the Criminal Code because they were trying to prove that
they were innocent and not members of the Turkish Communist Party.

        The Commission notes that the trial court, in its judgment of
29 November 1988, refused to refer the case to the Constitutional
Court, given the fact that the latter had already stated that the
provisions of Article 141 of the Criminal Code were not inconsistent
with freedom of thought and thus not unconstitutional.

        The Commission concludes that the remedy indicated by the
Government cannot be considered as an effective remedy which the
applicants were required to exhaust under Article 26 (Art. 26) of the
Convention (cf., mutatis mutandis, as regards a complaint to the
German Federal Constitutional Court, No. 8544/79, Öztürk, Dec.
19.12.81, D.R. 26 p. 55).

        It follows that the Government's objection of non-exhaustion
of domestic remedies must be rejected.

(ii)    Merits

        The Government state that the applicants were accused of
participating in the activities of an organisation aiming at the
dictatorship of the proletariat.  This accusation was considered proved
and the applicants were sentenced by the Court to four years and two
months' imprisonment.  The applicants were conditionally released in
November/December 1988, one year and three months after their arrest.
On 12 April 1991, Article 141 of the Turkish Penal Code, under which
they had been convicted, was abrogated.

        The applicants submit that Article 141 of the Criminal Code
was an adaptation of the "Code of State Security" promulgated by the
Mussolini Government in Italy.  After the amendments to this Article on
16 July 1938, which removed the expression "by force", this offence
was committed by the mere adherence to a particular opinion.  The
applicants maintain that the Communist Party has been held to be an
association of the type defined in that article, i.e. an association
having the aim of imposing the authority of one social class.
Therefore the freedom to manifest one's beliefs, the freedom of
expression and of association could not be exercised by persons
holding communist views.

        The Commission has carried out a preliminary examination of
the parties' submissions.  It considers that also in this respect the
applications raise complex issues of fact and law that cannot be
resolved without an examination of the merits.  It follows that also
this part of the application is not manifestly ill-founded.

        For these reasons, the Commission, by a majority,

        DECLARES INADMISSIBLE the applicants' complaints under
                              Article 5 (Art. 5) of the Convention concerning
                              their deprivation of liberty;

        DECLARES ADMISSIBLE, without prejudging the merits of the
                             case, the remainder of the applications.





        Secretary to the Commission          President of the Commission



             (H.C. KRÜGER)                       (C.A. NORGAARD)