FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 74318/01 
by Resul SADAK and Others 
against Turkey

The European Court of Human Rights (Fourth Section), sitting on 3 November 2005 as a Chamber composed of:

Sir Nicolas Bratza, President
 Mr J. Casadevall
 Mr R. Türmen
 Mr M. Pellonpää
 Mr R. Maruste
 Mr K. Traja, 
 Ms L. Mijović, judges
and Mr M. O’Boyle, Section Registrar,

Having regard to the above application lodged on 1 April 2001,

Having deliberated, decides as follows:

THE FACTS

The applicants, Mr Resul Sadak, Mr Nihat Osal, Mr Mehmet Çakar, Mr Rüstem Bayar, Mr Tahir Kutlu, Mr Cengiz Balık, Mr İzzet Belge, Mr Abdurrezak İnan, Mr Mehmet Temelkuran, Mr Mehmet Nezir Ayan, Mr Erdal Güler and Mr Yakup Uyar are Turkish nationals and live in Şırnak. They are represented before the Court by Mr T. Elçi, a lawyer practising in Diyarbakır.

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

At the time of the events giving rise to the application, Mr Resul Sadak was the provincial leader and the other applicants were members of the Peoples’ Democracy Party (Halkın Demokrasi Partisi, hereinafter “HADEP”) in Şırnak.

On 23 September 2000 Resul Sadak, Nihat Osal, Mehmet Çakar, Rüstem Bayar, Tahir Kutlu, Cengiz Balık, İzzet Belge, Abdurrezak İnan, Mehmet Temelkuran, Mehmet Nezir Ayan and Yakup Uyar went to Batman in order to participate in the Batman Provincial Congress of HADEP in two cars belonging Yakup Uyar and Erdal Güler. On their way back to Şırnak from Batman, they were stopped in the Düzova village, in Cizre, and taken into custody by gendarmes. The applicants were blindfolded and taken to the Şırnak provincial gendarmerie command.

According to the arrest, custody and seizure report (yakalama, gözaltına alma ve el koyma tutanağı), the cars were stopped following information received by the gendarmes that there were firearms in the cars. The security forces found three Kalashnikov-type weapons, full cartridge clips, three books, three periodicals and two Russian-made hand grenades in the cars. The cars were then seized by the gendarmes.

On 24 September 2000 the security forces conducted searches in Mr Resul Sadak’s house and found a Kalashnikov-type weapon, three Russian-made hand grenades a newspaper published in Kurdish and a book.

On 27 September 2000 Erdal Güler was taken into custody.

On 28 September 2000 the applicants’ lawyers left Diyarbakır in order to go to see the applicants in Şırnak, where they were detained. They were prevented from entering Şırnak by gendarmes. On the next day, the lawyers once more attempted to go to Şırnak. After having waited for hours at check points, they were finally allowed to see their clients and meet the Şırnak public prosecutor.

On an unspecified date, the applicants’ lawyers filed a complaint against the Şırnak provincial gendarmerie command alleging that they had been arbitrarily prevented from entering the city by the gendarmes.

On 24 November 2000 the Şırnak Governor decided not to authorise the opening of a criminal investigation against the gendarmes, considering that the inspections and searches held on the road had been lawful.

In the meantime, on 1 October 2000 the applicants were brought before the Şırnak public prosecutor and the Şırnak Magistrates’ Court (sulh ceza mahkemesi) where they stated that they did not have any knowledge concerning the firearms found in the cars. They maintained that they had been searched two more times on their way to Şırnak and that nothing had been found in the cars. They stated that they had not been subjected to torture or coercion while in custody. Nihat Osal, İzzet Belge, Abdurrezzak İnan and Mehmet Nezir Ayan further contended that they had been blindfolded while being taken to the Şırnak provincial gendarmerie command and that they had signed the statements drawn up by the gendarmes while blindfolded. On the same day, the Şırnak Magistrates’ Court ordered that Mr Resul Sadak, Mr Nihat Osal, Mr Mehmet Çakar, Mr Rüstem Bayar, Mr Tahir Kutlu, Mr Cengiz Balık, Mr İzzet Belge, Mr Abdurrezak İnan, Mr Mehmet Temelkuran, Mr Mehmet Nezir Ayan and Mr Erdal Güler be detained on remand and that Mr Yakup Uyan be released.

On 3 October 2000 the applicants’ representative filed a petition with the public prosecutor’s office at the Diyarbakır State Security Court, stating, inter alia, that on 29 September 2000 he had seen four of the applicants who had contended that they had been kept blindfolded in custody and had signed the statements while blindfolded. He further maintained that he had informed the Şırnak public prosecutor of his clients’ statements.

On 13 October 2000 the detained applicants filed an objection against the Şırnak Magistrates’ Court’s detention on remand order. They further requested that the seized cars be returned to the owners.

On the same day, the Diyarbakır State Security Court dismissed the applicants’ objection having regard to the nature of the offence and the state of the evidence. The court did not respond to the applicants’ request concerning the seized cars.

On 16 October 2000 the public prosecutor at the Diyarbakır State Security Court filed an indictment charging the applicants with aiding and abetting the PKK under Article 169 of the Criminal Code and Article 5 of Law no. 3713.

On an unspecified date, the Şırnak public prosecutor filed an indictment with the Şırnak Assize Court (ağır ceza mahkemesi) charging the applicants with illegal possession of firearms and explosives under Article 264 § 5 of the Criminal Code and Article 13 § 2 of Law no. 6136.

On 25 October 2000 the Şırnak Assize Court issued a decision of lack of jurisdiction (görevsizlik kararı) and sent the case-file to the Diyarbakır State Security Court.

On 26 October 2000 the applicants filed a petition with the Diyarbakır State Security Court and requested to be released pending trial.

On 30 October 2000 their request was dismissed.

On 12 December 2000 the Diyarbakır State Security Court held its first hearing and heard the applicants, who denied the veracity of the allegations against them. They maintained that they had not been in possession of any firearm or explosive in the cars and that they were planted by the gendarmes. Resul Sadak, Nihat Osal, Mehmet Çakar, Tahir Kutlu and Abdurrezzak İnan further contended that they were blindfolded when they had signed the statements taken by the gendarmes. Resul Sadak also stated that they had been forced to resign from HADEP.

On the same day, the first-instance court ordered the applicants’ release pending trial and the return of the seized cars to their owners.

On 1 October 2002 the Diyarbakır State Security Court acquitted the applicants of the charge of having aided and abetted the PKK. The first-instance court further considered that there was no evidence in support of the alleged link between the PKK and the firearms and explosives which had been allegedly found in the applicants’ cars. It therefore issued a decision of lack of jurisdiction and sent the case-file to the Court of Cassation for the latter to determine the court that would be competent to examine the case concerning the allegation that the applicants had been in illegal possession of firearms and explosives. The Diyarbakır State Security Court finally decided to request the Şırnak public prosecutor’s office to initiate a criminal investigation as regards the allegation that the applicants had been in possession of illegal publications.

On 8 October 2002 the Diyarbakır State Security Court’s judgment became final.

On 16 September 2003 the Şırnak Assize Court acquitted the applicants of the charge of illegal possession of firearms and explosives. The first-instance court decided not to take the arrest, custody and seizure report drawn up by gendarmes into consideration and found that there was not sufficient and certain evidence against the applicants.

On an unspecified date, the Court of Cassation upheld the judgment of the first-instance court.

COMPLAINTS

The applicants complain under Article 3 of the Convention that they were blindfolded and subjected to coercion during their detention in custody.

The applicants contend under Article 5 § 1 (c) of the Convention that they were unlawfully and arbitrarily deprived of their liberty as there was no reasonable suspicion for their arrest. They further maintain under Article 5 § 3 of the Convention that they were held in custody for an excessive length of time without being brought before a judge or other officer authorised by law to exercise judicial power.

The applicants complain under Article 6 of the Convention that they were denied the right to have access to their lawyers and their relatives during their detention in custody.

They allege under Article 11 of the Convention that they were arrested because they were members of HADEP and that the authorities sought to hinder the activities of that party in Şırnak.

The applicants maintain under Article 1 of Protocol No. 1 that the seizure of the cars which belonged to Erdal Güler and Yakup Uyar constituted an unlawful interference with these two applicants’ right to property.

The applicants complain under Article 14 of the Convention, in conjunction with the above-mentioned Articles, they were discriminated against on the basis of their ethnic identities and political opinions.

THE LAW

1. The applicants complain under Article 3 of the Convention that they were subjected to ill-treatment as they were kept blindfolded throughout their detention in custody and subjected to coercion while in custody.

The Court observes that while some of the applicants and their representatives had maintained before the authorities that the applicants had been blindfolded following their arrest and that they had signed the statements drawn up by security forces while blindfolded, they confined themselves to challenging the veracity of their statements before the gendarmes. Apart from blindfolding, the applicants did not at any stage refer to any sort of ill-treatment which they allegedly suffered. On the contrary, they maintained before the Şırnak Magistrates’ Court that they had not been tortured or subjected to coercion while in custody. The Court therefore does not find the applicants’ submissions to the Court that they were kept blindfolded throughout their detention in custody convincing and considers that the applicants have not laid the basis of an arguable claim that they were ill-treated while custody. Furthermore, the Court recalls that the effect of Article 13 is to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief (see Salman v. Turkey [GC], no. 21986/93, § 121, ECHR 2000-VII). Since the applicants have raised no arguable complaint of a violation of Article 3 of the Convention, no issue arises under Article 13 of the Convention. For these reasons the Court considers that this complaint is inadmissible as being manifestly ill-founded within the meaning of Article 35 § 3 and 4 of the Convention.

2. The applicants contend under Article 5 § 1 (c) of the Convention that they were unlawfully and arbitrarily deprived of their liberty as there was no reasonable suspicion for their arrest.

The Court reiterates that having a “reasonable suspicion” presupposes the existence of facts or information which would satisfy an objective observer that the person concerned might have committed the offence (Fox, Campbell and Hartley v. the United Kingdom, judgment of 30 August 1990, Series A no. 182, p. 16, § 32). However, facts which raise a suspicion need not be of the same level as those necessary to justify a conviction or even the bringing of a charge, which comes at a later stage of the process of criminal investigation (Murray v. the United Kingdom, judgment of 28 October 1994, Series A no. 300-A, p. 27 § 55).

In the instant case, Resul Sadak, Nihat Osal, Mehmet Çakar, Rüstem Bayar, Tahir Kutlu, Cengiz Balık, İzzet Belge, Abdurrezak İnan, Mehmet Temelkuran, Mehmet Nezir Ayan and Yakup Uyar were taken into custody following information received by the gendarmes that there were firearms in the cars in which these applicants were travelling. According to the arrest, custody and seizure report, the gendarmes found, inter alia, three Kalashnikov-type weapons, full cartridge clips, and two Russian-made hand grenades in the cars. The last applicant, Erdal Güler, was taken into police custody four days after the arrest of the other applicants as he was the legal owner of one of the cars.

In these circumstances, the Court is of the opinion that the aforementioned elements are sufficient to support the conclusion that there was “reasonable suspicion” for the applicants’ arrest. It further considers that the fact that the applicants were eventually acquitted does not of itself call into question the existence of a reasonable suspicion within the meaning of Article 5 § 1 (c).

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

3. The applicants maintain under Article 5 § 3 of the Convention that they were held in custody for an excessive length of time without being brought before a judge or other officer authorised by law to exercise judicial power.

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that 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.

4. The applicants complain under Article 6 of the Convention that they were denied the right to have access to their lawyers. They further maintain that their inability to see their relatives during their detention in custody adversely affected their defence rights.

The Court observes that the applicants were acquitted at the end of the both sets of criminal proceedings against them. Any alleged unfairness in their trials before the domestic courts must be considered to have been rectified by the judgments acquitting them. Thus, they can no longer claim to be victims of the alleged violation (see Ahmet Yavuz and Others v. Turkey (dec.), no. 38827/02, 4 January 2005).

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

4. The applicants allege under Article 11 of the Convention that they were arrested and criminal proceedings were brought against them because they were members of HADEP and that the authorities sought to hinder the activities of that party in Şırnak.

The Court observes that according to the report drawn up by the security forces, the applicants were arrested following information received by the gendarmes that there were firearms in the cars in which they were travelling. The applicants were subsequently prosecuted for aiding and abetting the PKK and illegal possession of firearms and explosives, but not for their affiliation to HADEP. Furthermore, they were acquitted at the end of the both sets of proceedings against them. The Court considers, therefore, that the criminal proceedings against the applicants cannot be viewed in terms of an interference with their rights under Article 11 of the Convention.

It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

5. Two of the applicants, Erdal Güler and Yakup Uyar, complain under Article 1 of Protocol No. 1 that the seizure of their cars for more than two months violated their right to property.

The Court observes that the seizure of the cars belonging to Erdal Güler and Yakup Uyar was carried out as part of the criminal proceedings in order to safeguard the evidence. The Court further observes that the cars were returned to the owners once the first-instance court considered that the relevant evidence had been collected. Therefore, even assuming that the applicants have exhausted the domestic remedies, the Court considers that the seizure in question amounted to an interference with their property right but one which was lawful and proportionate to the aim pursued in the circumstances of the present case.

It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

6. The applicants finally complain under Article 14 of the Convention, in conjunction with Articles 3, 5, 6 and 11 of the Convention and Article 1 of Protocol No. 1, that they were discriminated against on the basis of their political opinions and ethnic identities.

The Court observes that the applicants did not submit any evidence in support of their allegation under Article 14 of the Convention. The Court is of the opinion that the applicants have failed to substantiate their allegation and to lay the basis of an arguable claim of a breach of Article 14.

It follows that this complaint is manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicants’ complaint concerning their right to be brought promptly before a judge;

Declares the remainder of the application inadmissible.

Michael O’Boyle Nicolas Bratza 
 Registrar President

SADAK AND ELEVEN OTHERS v. TURKEY DECISION


SADAK AND ELEVEN OTHERS v. TURKEY DECISION