Violation of Art. 2;Violation of Art. 5;Violation of Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The circumstances in which the applicant’s brother disappeared are disputed. In accordance with former Article 28 § 1 (a) of the Convention, the Commission conducted an investigation with the assistance of the parties and obtained documentary evidence and oral depositions.

Delegates from the Commission heard witnesses on 17 September 1999 in Strasbourg and from 20 to 22 September 1999 in Ankara. They also visited the offices of the anti-terrorist branch at Ankara Security Directorate on 20 September 1999. Evidence was taken from the following witnesses: the applicant, eleven people who had been in custody at the material time at Ankara Security Directorate and who alleged that they had met Kenan Bilgin there and had witnessed the ill-treatment to which he had been subjected, two public prosecutors who had investigated the case, a deputy director at Ankara Security Directorate and a police officer from the anti-terrorist branch at Ankara Security Directorate.

At 10 a.m. on 12 September 1994 the applicant’s brother, Kenan Bilgin, was arrested at a taxi rank in Dikmen (Ankara) by plainclothes police officers. His family was not informed.

The applicant received three anonymous telephone calls from someone who confirmed that his brother was being held at Gölbaşı (Ankara) with three other prisoners. He was told that his brother’s condition was serious and that he was being administered serum. During the last conversation, which took place on 15 November 1994, the caller said that the applicant’s brother had been moved elsewhere.

On 3 October 1994 Kenan Bilgin’s lawyer, Ms Hatipoğlu, contacted the Human Rights Commission of the Turkish National Assembly. She and two other lawyers also made a written statement to the press.

By an undated letter the applicant requested information from the Principal Public Prosecutor at the Ankara National Security Court about his brother’s health, indicating that his brother had been arrested on 11 September 1994. On 4 October 1994 a similar request was made to the Principal Public Prosecutor by Ms Hatipoğlu, who put the date of the arrest at 13 September 1994.

In his letters in reply dated 10 October 1994 the Principal Public Prosecutor said that no one by the name of Kenan Bilgin had been interviewed and that no warrant had been issued for his arrest.

On 10 October 1994 the applicant made a written statement to the press. The same day, his representatives contacted the Ankara branch of the Human Rights Association about his brother’s case. On 11 October 1994 the association issued an appeal to the provincial governor of Ankara for Kenan Bilgin to be brought before the public prosecutor, while the applicant managed to obtain written statements signed by ten prisoners who had also been held at Ankara Security Directorate between 12 and 27 September 1994, in which they confirmed that Kenan Bilgin had been held there between those dates and subjected to ill-treatment.

On 12 October 1994 Ms Hatipoğlu wrote to the Principal Public Prosecutor at the Ankara National Security Court to enquire what had become of Kenan Bilgin. She explained that although several witnesses affirmed that they had seen him in police custody, the police denied that he had been detained.

On 9 November 1994 the applicant lodged a complaint with the Ankara public prosecutor against the officers who had been on duty while his brother was in custody, namely police officers from the anti-terrorist branch at the Ankara Security Directorate. Inter alia, he gave the names of witnesses who had testified that Kenan Bilgin had been held in the same building as them.

Furthermore, at a hearing on 21 November 1994 in criminal proceedings before the Ankara National Security Court, one of the defendants, whose name was Mr Yılmaz, testified to having met Kenan Bilgin at the Ankara Security Directorate. Another defendant, Mr Çoban, said in evidence before the court that police officers had threatened him, telling him that unless he made a confession he would meet the same fate as Kenan Bilgin.

When making a bail application to the Ankara National Security Court on 1 February 1995, a lawyer, Mr Demir, said that while he and Kenan Bilgin were in custody together they had spoken and Kenan Bilgin had told him that he had been held for twenty-two days and that the police intended to arrange for his disappearance. Kenan Bilgin had also asked Mr Demir to inform his family.

The Government’s position was that while it was true that Kenan Bilgin was a member of the Revolutionary Communist Party of Turkey (TDKP), he was not wanted by the police and had not been arrested by the security forces. As the Ankara public prosecutor had stated in a letter of 23 December 1994 to the Ministry of Justice, the custody records showed that Kenan Bilgin had not been arrested or detained.

In a statement made on 3 or 4 October 1994, a lawyer, Murat Demir, said that he had spoken with Kenan Bilgin, who had informed him that he had been in custody for twenty-two days and that his name had not been entered on the custody record.

Ercan Aktaş stated that prisoners in custody in the offices of the anti-terrorist branch of the Ankara Security Directorate from 13 to 27 August 1994 had been systematically subjected to ill-treatment and that he had seen Kenan Bilgin during that period through an aperture in the cell-door window.

Talat Abay stated that he had been held at the Ankara Security Directorate from 8 to 23 September 1994, during which period he and his fellow inmates had been constantly subjected to ill-treatment. On 18 or 19 September he had met Kenan Bilgin, whom he already knew, in the toilets.

Bülent Kat stated that he had been held at the Ankara Security Directorate from 8 to 23 September 1994. On 18 or 19 September he had managed to make out through an aperture in the cell-door window a group of police officers dragging a prisoner along the ground to the bathroom. Approximately two hours later he had seen a person carrying a doctor’s bag leave the bathroom. He had subsequently learnt that the prisoner’s name was Kenan Bilgin.

Cavit Nacitarhan stated that he had been held at the Ankara Security Directorate from 12 September to 6 October 1994 and had seen Kenan Bilgin on several occasions being led away, unclothed, by police officers.

Müjdat Yılmaz stated that he had been held at the Ankara Security Directorate from 12 to 26 September 1994. He had heard the cries of prisoners being subjected to ill-treatment. Through the cell-door window he had seen a prisoner being dragged along the ground by police officers and had later heard his cries of distress and the police officers’ questions such as: “What is your name? If you do not tell us your name, we will kill you.” Later, he had seen the same prisoner being taken to the toilet and had heard him call out: “My name is Kenan Bilgin! I am registered at the Tunceli Records Office. The police want to kill me. Make sure that public opinion is informed about this!”

Salman Mazı stated that he had been held from 12 to 26 September 1994, during which period police officers had subjected prisoners to ill-treatment. One day, he had seen a prisoner in the toilets. The man was in poor health. He introduced himself as Kenan Bilgin and told him that he had been held since 12 September 1994, that his name had not been entered on the custody record and that he feared he would be executed.

Emine Yılmaz stated that she had been held from 12 to 25 September 1994. She recalled hearing someone call out: “My name is Kenan Bilgin! I was taken into custody on 12 September, but my name is not on the custody record.”

Ayşe Nur İkiz Akdemir stated that while being held in custody between 13 and 25 September 1994 she had heard someone call out: “My name is Kenan Bilgin! I was taken into custody on 12 September and they want to arrange for me to disappear.” According to her, the prisoner she had seen through the cell-door window was Kenan Bilgin. He had difficulty walking and his body bore marks of torture.

Özer Akdemir stated that he had been held from 12 to 25 September 1994 in the offices of the anti-terrorist branch at the Ankara Security Directorate. During that period all the prisoners had been systematically subjected to torture. He had been in cell no. 6. The prisoner in cell no. 8 was subjected to severe ill-treatment every day. He was taken away naked for torture sessions and dragged back to his cell afterwards. He saw him through an aperture in the cell-door window. The four people who took the prisoner away for interrogation were the same four people who had interrogated him, so he would have no difficulty in recognising them. One day, the prisoner from cell no. 8 cried out from the toilets where he had been taken: “My name is Kenan Bilgin. They want to arrange for me to disappear! My name is not on the custody record.” He had been brought back to cell no. 8 later.

The applicant alleged that his brother had been arrested on 11 September 1994 and that eyewitnesses had seen him in custody. He requested information about his brother’s fate. His brother’s lawyer made a similar request alleging that Kenan Bilgin had been taken into custody by police officers from the anti-terrorist branch of the Ankara Security Directorate on 13 September 1994.

In its petition the Ankara Human Rights Association gave the names of the eyewitnesses who had seen Kenan Bilgin at the Ankara Security Directorate.

In a letter of 21 November 1994 referring to the complaints lodged by the applicant’s representatives, the Ankara public prosecutor, Selahattin Kemaloğlu, instructed the public prosecutor’s office at Pendik (Istanbul) to question the applicant about the matters raised. He also instructed the Ankara Security Directorate to start an investigation into the applicant’s allegations.

On 24 November 1994 the Ministry of the Interior informed the Ministry of Foreign Affairs that the Security Directorate had advised that Kenan Bilgin had not been taken into custody, his name had not been entered on the custody record and he was not wanted by the police.

On 9 December 1994 the deputy director at the Security Directorate, Ülkü Met, sent a letter to the Ankara public prosecutor’s office, the relevant parts of which read:

“... Between 12 September and 21 November 1994 the anti-terrorist branch carried out 249 arrests. Of those arrested, 115 were brought before the principal public prosecutor at the National Security Court and the remaining 134 released. In addition on 16 and 17 October 1994 the Committee for the Prevention of Torture carried out two ad hoc visits to the Security Directorate. They did not report any case of unlawful detention there ... In the interests of an effective investigation, persons remanded in custody, whether members of the same or of different organisations, never see each other unless a confrontation becomes necessary. Even for the purposes of answering a call of nature, remand prisoners are taken to the toilets individually and are accompanied by a warder. Furthermore, members of the same organisation are put in cells that are far apart from each other ... The sole aim of the persons whose names appear in the complaint and who claim to have seen the person known as Kenan Bilgin is to mislead the judicial authorities, to discredit the police and to obstruct the operations being carried out against illegal organisations ... The Turkish police are proud of their 149-year history. Certain people seek to destroy the democratic secular Republic; they commit crimes, arguing that such unlawful acts are legitimate, and make allegations such as the present one to discredit the police and the State.”

On 23 December 1994 the Ankara public prosecutor, Nazmi Şarvan, informed the Ministry of Justice that, while it was true that an investigation had been started into the affairs of members of the TDKP, Kenan Bilgin’s name did not appear on the list of its members.

On 13 January 1995 the Ankara Principal Public Prosecutor, Özden Tönük, sent a letter to the Ankara public prosecutor’s office, which was in charge of the investigation. The relevant parts of the letter read:

“The Committee for the Prevention of Torture (CPT) interviewed prisoners in Ankara Prison who had been transferred from the anti-terrorist branch at the Security Directorate and who said that they had seen Kenan Bilgin in September 1994 in the building where remand prisoners are detained. When we spoke to them, they said that they had seen Kenan Bilgin between 13 and 25 September 1994 through an aperture in their cell-door windows when he was being taken to the toilets, to the torture room or to be photographed. The investigation reveals that the section of the premises where remand prisoners are held contains individual cells with windows in the cell door that enable police officers to communicate with the prisoners or to pass them their food and which can only be opened from the outside by the warders. The cells are aired by a ventilator attached to the ceiling and it is impossible for prisoners to see what is happening outside. Prisoners are interrogated on the floor above in an interview room that complies with European standards. The cells are not numbered but a small sheet of paper bearing the prisoner’s name is attached to the cell door. Persons arrested are photographed and fingerprinted by the technical services at the Security Directorate. Between 1 January and 31 December 1994, 771 people were taken into custody at the anti-terrorist branch of the Security Directorate; of these, 160 were released by the police, 574 brought before a judge and 37 transferred to other branches at the Security Directorate. Thus, with the exception of Kenan Bilgin, there had been no complaints of any disappearances of prisoners being held in custody. According to the inquiry conducted by the CPT on 16 and 17 October 1994, in an unannounced visit to the Security Directorate, there are no reports of unlawful detention on the premises. Considering that the purported witnesses did not know either Kenan Bilgin or his family and that the Security Directorate state that his name was not on the custody record, it can safely be deduced that the allegations of the prisoners regarding the disappearance of the person known as Kenan Bilgin while in custody at the Security Directorate were aimed at misleading public opinion and harming the police as they attempted to mount operations against the illegal organisations.”

On 17 March 1995 the public prosecutor Selahattin Kemaloğlu took witness statements from Cavit Nacitarhan, Özer Akdemir, Salman Mazı, Murat Demir and Müjdat Yılmaz, who were all accused of being members of an illegal extreme left-wing organisation, the TDKP. The following depositions were taken.

(a) Cavit Nacitarhan: “I was arrested on 12 September 1994 and remained in custody for twenty-four days. I did not know Kenan Bilgin. However, after my second day in custody I saw him every day. He would cry out: ‘My name is Kenan Bilgin, I have been in custody since 12 September and my name has not been entered on the records; if anyone is released, please inform the press, lawyers and human rights [associations] about my case.’ I do not know why he was arrested but I saw him over a period of twenty-one days. He was dressed only in his underpants. He did not have the strength to stand unaided and had to be supported by two people. After my release, I saw his photograph in newspaper articles about his disappearance and that is how I recognised him.”

(b) Özer Akdemir: “I was taken into custody on 26 September 1994. I did not know Kenan Bilgin, but I saw him three times at the Security Directorate. He was dressed only in his underpants. I was in cell no. 6 and he was in cell no. 8. When he was taken to the toilets, he would cry out: ‘My name is Kenan Bilgin. They want to arrange for me to disappear. My name has not been entered on the custody records.’ Later, he was taken from his cell. That is all I witnessed. [I] certify that the signature on the written statement made on 16 or 17 September 1994 is mine.”

(c) Salman Mazı: “I certify that I signed the written statement dated 11 October 1994. When I was in custody at the offices of the anti-terrorist branch at the Security Directorate between 12 and 25 September 1994, I saw Kenan Bilgin on several occasions. At one stage, I noticed that he was being dragged by his arm to the toilets in his underpants. He was often taken for interrogation and was severely tortured. He was in cell no. 8. On the eighth day I saw him in the toilets. He said to me in a weak voice: ‘My name is Kenan Bilgin, I was arrested on 12 September at Dikmen. My name has still not been entered on the records. They are probably going to arrange for me to disappear. If you get out of here, contact the public prosecutor’s office and inform the press.’ The warder then appeared and reprimanded him for having spoken to me, before taking him away. Later I recognised his photograph in the newspapers.”

(d) Murat Demir: “I was taken into custody on 10 September 1994 and was put in cell no. 11. Kenan Bilgin was in no. 13 or 14. I did not know him. We were severely tortured. The remand prisoner in no. 13 stopped me and, as I was known as ‘the lawyer’, asked me if I really was a lawyer. He gave me his name and continued: ‘I have been here for twenty-two days. My name has not been entered on the records. They probably want to arrange for me to disappear. I worked at a printer’s. If you are brought before a judge, tell the lawyers that I am here.’ He too was tortured. I heard the sounds of torture and groans. I certify that the signature on the written statement is mine and confirm the content. I saw his photograph in the newspapers later. However, he seemed far more exhausted and tired [in custody].”

(e) Müjdat Yılmaz: “I confirm the content of the written statement of 11 October 1994. I do not know Kenan Bilgin, but I saw him on two or three occasions. I was in cell no. 2. I saw him being taken to the toilets by his torturers and heard him call out: ‘My name is Kenan Bilgin. They want to arrange for me to disappear.’ I saw him like that three times. I am able to recognise these men [the police officers] because they also undressed my wife before my eyes. One of them was smaller than me, approximately 1.80 m tall with a receding hairline and was called ‘boss’ by the others. He was one of the men who took Kenan Bilgin away. I would recognise him without any hesitation. I made a statement to the public prosecutor who came to the prison.”

Referring to the statements of these witnesses, the public prosecutor Selahattin Kemaloğlu enquired of the Ankara Principal Public Prosecutor whether an investigation had been started following the allegations that Kenan Bilgin had been tortured and had disappeared after being taken into custody in the offices of the anti-terrorist branch of the Ankara Security Directorate.

On the instructions of the public prosecutor Selahattin Kemaloğlu, two police officers from the Security Directorate at Üsküdar (Istanbul) took a statement from the applicant on 5 April 1994. The applicant stated that a cousin had informed him that his brother had been arrested in Ankara on 12 September 1994. He and his brothers had gone to the offices of the Ankara Human Rights Association, had consulted lawyers and had learnt that certain prisoners had claimed that Kenan Bilgin had been in custody in the same building as them but had not been brought before a judge for an order to be made for his detention pending trial.

On 16 September 1995 the applicant had given a statement at Kısıklı (Istanbul) police station. He said that he had lodged a complaint with the Ankara public prosecutor’s office and had given the names of witnesses who said that they had seen Kenan Bilgin in the offices of the anti-terrorist branch at the Security Directorate. He had repeated his allegations and asked for news of his brother.

By a letter of 27 December 1995 in which he referred to the applicant’s complaint and statement, the public prosecutor Selahattin Kemaloğlu requested the Pertek (Tunceli) public prosecutor’s office for the locality where the register of births of the Bilgin family was held to conduct an investigation into the alleged disappearance of Kenan Bilgin, and in so doing to have regard to the possibility that he may have taken part in PKK (Workers’ Party of Kurdistan) activities. He added that the Security Directorate considered the allegations of the applicant and his lawyers regarding the alleged disappearance at the hands of the police to be an attempt to damage the police’s reputation.

By letters of 9 October and 27 November 1996 the Pertek public prosecutor instructed the district gendarmerie to make enquiries of the people with whom Kenan Bilgin was in close contact in order to establish whether he had joined the ranks of the PKK.

On 3 December 1996 the gendarmes took a statement from someone who lived in the village in which Kenan Bilgin was born. He said that the Bilgin family had left the village forty years earlier and that he did not know whether Kenan Bilgin was a member of the PKK.

On 9 July 1997 the public prosecutor Selahattin Kemaloğlu instructed the Ankara Security Directorate to carry out a search for Kenan Bilgin. The relevant part of his letter reads as follows.

“An investigation has been carried out into allegations by İrfan Bilgin that his brother, who was arrested on 12 September 1994 at Dikimevi (Ankara), was taken into custody in the offices of the anti-terrorist branch of the Ankara Security Directorate, that he was seen by other prisoners but has given no signs of life since. Other enquiries have been made into the possibility that Kenan Bilgin belongs to the PKK organisation or that attempts have been made to damage the police’s reputation, and enquiries have been made of the authorities of the village where he was born and in the locality where he resides. However, it is not been possible to reach any conclusion in this case.

“I wish to request your department to start an investigation into every eventuality, namely whether Kenan Bilgin disappeared while in police custody, or whether he has joined the ranks of the PKK or has been hiding in secret in Turkey and has in fact been used by people close to him with a view to damaging the reputation of the police. I should be grateful if you would then inform me of the result of your findings.”

The delegation visited the premises in which prisoners were held at the offices of the anti-terrorist branch of the Ankara Security Directorate. It was informed that alterations had been made to the layout of the cells on the ground floor at the end of 1994. There were now thirteen cells (three cells having been converted into a single cell) running along one side of a long, narrow corridor. The delegation found an empty room at the end of that corridor, with a small corridor leading off to the adjoining toilets. The prisoners’ names and numbers were written on cards inserted into slots above the doors with the reverse side facing outwards. The police officer in charge of the premises said: “Prisoners have no possibility of seeing or speaking to each other and their movements in the premises are made in accordance with official regulations. Dishes are passed directly through the door with the prisoners being required to stand back. The police officer in charge of the premises where prisoners are held has a list of the people in custody and of the cell numbers, and prisoners do not change cells while in custody.” The delegation carried out two experiments on the premises.

(i) Two delegates were shut in two adjoining cells. One said his name out loud. He was heard by the other and by the group in the corridor.

(ii) A delegate was shut in a cell and a lawyer from the delegation in a cell two doors away. In order to establish what they could hear, they were asked to speak in their cells. The lawyer heard the delegate’s voice but said that the noise from the ventilation system prevented him from making out what he said.

The delegation then visited the interrogation room on the first floor.

The name Kenan Bilgin does not appear on the custody records at the Ankara Security Directorate. The records show that several people were arrested and taken into custody at the Directorate between 8 and 29 September 1994, including Bülent Kat and Talat Abay on 8 September, Salman Mazı, Müjdat Yılmaz and Emine Öğün on 12 September, Sahir Çoban, Ayse Nur İkiz Akdemir, Özer Akdemir and Ercan Aktaş on 13 September, Murat Demir on 27 September, and Cavit Nacitarhan on 25 September.

On 17 September in Strasbourg and between 20 and 22 September 1999 in Ankara, three Commission delegates took the following depositions.

İrfan Bilgin is the applicant and Kenan Bilgin’s brother. He said that his brother had been arrested on 12 September 1994 at Dikmen (Ankara) and that he had been informed of the arrest approximately twenty days later.

His brother had been arrested as part of an operation that had been carried out by the security forces in different localities on the same day against members of the revolutionary movement.

Kenan Bilgin had previously been in custody in 1977 and had spent three years in prison. He had been a member of the revolutionary movement since 1976 and had been on the police’s wanted list. In 1993 he had been arrested at Gaziantep (a town in south-east Turkey) in possession of false identity papers. He had been held for twenty-five days and severely tortured. He had told his family that the police had made threats on releasing him, warning him: “This time, you are safe, you have escaped with your life, but the next time we catch you, you will not leave here alive.”

The applicant said that following his brother’s disappearance he had received two or three telephone calls from one Coşkun, who had informed him that his brother was being held at Gölbaşı (Ankara) and subjected to torture. He was in very poor shape and on a drip.

The applicant said that he had contacted people who claimed to have been held on the same premises as Kenan Bilgin. After speaking to them, he had lodged applications with the Ministry of the Interior, the National Security Court, the Secretary of State for Human Rights and the Security Directorate. However, despite the evidence of several prisoners, those authorities had denied that his brother had ever been in custody.

The applicant said that he had lodged a complaint with the public prosecutor’s office. However, he was unaware whether an investigation had been started. He had been required to attend the offices of the anti-terrorist branch at the Istanbul Security Directorate either once or twice and had repeated his allegations.

The witness is a lawyer who currently lives in Germany, where he has been granted political asylum. He said that he was arrested by police officers from the Ankara Security Directorate in his office on 27 September 1994 and held by the anti-terrorist branch for thirteen days. He was detained in a small cell and had changed cells on three or four occasions.

He gave the following description of the premises where prisoners were held. The cells were not numbered and ran the length of one side of a corridor. On the other side of the corridor was a room used for torture, toilets, a bathroom that was also used for torture, the warders’ office and two other cells that were larger and better furnished than the others. The doors were equipped with small windows, approximately 20 to 30 cm across, through which the prisoners could be observed. Both the windows and the cell doors were opened from time to time by the warders. By pressing his head firmly against the aperture in the cell-door window, he was able to see what was going on outside and had thus seen the other prisoners when they were taken away to be tortured.

When first taken into custody he had been put in a cell between the toilets and the bathroom that doubled up as a torture chamber. The prisoner in the cell next door was a university lecturer. The witness said that he had heard groans coming from the cell next to the lecturer’s. He explained that he was systematically tortured and that one evening, at the end of the torture session and after he had been taken back to his cell, the prisoner, who was groaning and was in very poor shape had said to him: “I have been detained for twenty-two days. My name is Kenan Bilgin. You are the lawyer of a close relative of mine, Hüseyin Özaslan, who is currently being held in Ankara Prison. My name has not been entered on the custody records. They are going to arrange for me to disappear. Could you inform my family and the lawyers that I have been detained?” On hearing this, the witness had tried to reassure the man, saying that he now had an eyewitness to his detention and that he could no longer be regarded as having disappeared. A few days later, on returning to his cell after another torture session that had lasted all night, he noticed that all the prisoners had changed cells. He had not see Kenan Bilgin again.

The witness said that detention in police cells was not always entered on the custody record and that the police officers used that practice as a form of torture. He had heard them tell certain prisoners in custody: “We have not entered your name on the custody record. We can do as we please with you.”

He said that he did not know Kenan Bilgin personally. Kenan Bilgin’s lawyer, Ms Hatipoğlu, had asked him while visiting the prison whether he had met Kenan Bilgin at the police station and he had informed her of their conversation.

Cavit Nacitarhan said that he had been arrested on 12 September 1994 by the police for being a member of an illegal organisation, the TDKP. He had been held in custody for twenty-four days. For eighteen or nineteen days he had been taken for interrogation twice daily at 10 a.m. and 10 p.m. During the interrogation sessions he had been systematically tortured. For the remainder of his time in custody he had been given medical attention to remove the marks left by the injuries on his body.

He described the events following his arrest as follows: he had firstly been taken to a place called Gölbaşı, where the police officers had threatened to kill him unless he cooperated with them; he had been interrogated there before being taken to the Ankara Security Directorate.

The witness gave the names of other people who had been in custody during the same period. He said that he had learnt their names following a confrontation that had been organised with them or after meeting some of them in the prison. He had heard Kenan Bilgin’s name while in police custody.

He related how, in general, prisoners were taken to the toilets in groups of four or five. However, that did not apply to certain prisoners, including himself and another prisoner. They were only allowed to leave their cells to go to the toilet when the doors of the other cells had been shut. Prisoners’ names, apart from his own and that of another prisoner who he later discovered was Kenan Bilgin, were written on small cards that were fastened to the cell doors. On seeing Kenan Bilgin’s photographs in the press, he had immediately realised that it was the same person. One day, when all the cells were closed, he had attempted to see what was going on in the corridor by looking through a small aperture next to the cell-door window. Although his angle of view had been very restricted, he had been able to make out two police officers leading a nearly naked prisoner whose eyes were blindfolded. The prisoner had been taken back to his cell many hours later. He had seen him several times being dragged across the floor to or from his cell.

A few days later he had heard a prisoner saying: “My name is Kenan Bilgin. My name has not been entered on the custody record. Please inform my family and public opinion about my case.” He had heard the same person cry out several times from the bathroom that had been converted into a torture chamber. The man had been asked repeatedly: “What is your name? Tell us your name. Do not shout.”

On 26 September a confrontation had been organised with other prisoners who had been arrested as part of the same operation. Kenan Bilgin was not among them. On 3 October 1994 the witness had again seen Kenan Bilgin being led away by police officers. He was in very poor shape. That same evening there seemed to be a panic and the doors had remained closed throughout the evening. Police officers were running in all directions. Since that day, he had not seen Kenan Bilgin again. In his opinion, Kenan Bilgin was executed on 3 October.

The witness said that the applicant had visited him in prison in 1996 and that was how he had informed him of the date he was taken into custody. They had had a very short discussion about Kenan Bilgin. He said that he had sent a written statement through his representatives certifying that Kenan Bilgin had been present at the Ankara Security Directorate.

According to the witness, although he had been taken into custody on 12 September 1994, his detention had not been recorded until 26 September 1994, after his admission to hospital. He had informed the public prosecutor of that fact but the public prosecutor had merely accepted the police officers’ account.

Bülent Kat said that he had been arrested on 8 September 1994 with two other people and had remained in custody in the offices of the anti-terrorist branch of the Ankara Security Directorate for fifteen days. When first detained, three or four prisoners were being held; a week later, their number had risen to approximately fifty.

The first prisoner he noticed was Cavit Nacitarhan, who was the nephew of a member of Parliament and occupied the cell next to his. The police officers had began the torture sessions with Cavit, whose body was swollen and covered in bruises and who had difficulty walking. The witness had a clear view of prisoners being taken to the torture chamber, which was diagonally opposite his cell.

He related how, after Cavit Nacitarhan was interrogated, it was the turn of another prisoner to suffer the same treatment. The question he heard most often was: “What is your name?” The prisoner’s cries had turned into grunts and groans. The last time he had seen him brought by a group of police officers for a torture session, either on 18 or 19 September, was identical to the others: the same groans, the same question, the same insults, the same cries. The witness went on: “Suddenly, there was total silence. The police officers came out of the torture chamber and a man carrying a black bag went inside. He looked like a doctor, but was probably from the police. They brought the prisoner out, dragging him behind them.”

The witness said that the warders opened the windows in their cell doors from time to time to give them bread or water. However, the aperture in the windows to the cells of Cavit Nacitarhan and the prisoner referred to above were kept shut.

He said that he did not know Kenan Bilgin before his arrest and had identified him from photographs in the press.

In practice, detention at the anti-terrorist branch was not entered on the records on the day the prisoner was taken into custody. The practice depended on how the interrogation proceeded.

The witness repeated that Kenan Bilgin had been on the same premises as him for at least fifteen days and had been tortured throughout that period.

He stated that he had signed a statement on 11 October 1994 as testimony for the benefit of public opinion and had made a statement to the public prosecutor.

Talat Abay said that he had been arrested on 8 September 1994 as a member of an illegal organisation, Rizgari, and had been held in custody for fifteen days at the Ankara Security Directorate. On 12 September a number of people had been taken into custody and all the cells were occupied. While in custody, prisoners were systematically subjected to torture.

He had known Kenan Bilgin before September 1994, as he had stayed at the witness’s home for almost two years in 1985 and 1986.

He had seen Kenan Bilgin on the night of 18 or 19 September 1994, when he was taken to the toilet. They had made eye contact but had not spoken.

The witness said that he had made a written statement confirming that Kenan Bilgin had been held in custody. In addition, he added that at his trial before the National Security Court he had testified to meeting Kenan Bilgin at the Ankara Security Directorate.

The witness, who was a student at the material time, had been held in custody from 13 to 27 September 1994, for being a member of the PKK.

As he had said in his written statement, he and the other prisoners had been systematically taken for torture sessions. The torture chamber was near his cell. For several nights another prisoner had been taken to the torture chamber after him. He was always asked the same question, “What is your name?”, and he had heard cries and groans. He had seen him once, through an aperture in the cell-door window, for five or six seconds, from the front and distinctly, being supported by two police officers. The prisoner could not walk without assistance and dragged his feet. The witness had subsequently learnt, after being transferred to prison, that the prisoner’s name was Kenan Bilgin.

The witness said that he had no difficulty in being certain that the prisoner who had groaned and cried out in agony was Kenan Bilgin, since he had seen almost all of the other prisoners in prison.

The police officers would accompany them to the toilet and when they washed their hands and faces in the wash basins, they had an opportunity of meeting other prisoners.

Sahir Çoban accompanied the delegates when they visited the offices of the anti-terrorist branch of the Ankara Security Directorate.

At the material time he was a teacher. He had been arrested by the police on 12 September 1994 in the village where he taught for aiding and abetting an illegal organisation. He had been detained at the Ankara Security Directorate on 13 September 1994.

The witness reported his findings concerning the premises visited by the delegates of the Commission. The premises had been altered. The cells had been ventilated through the open cell-door windows, there being no ventilation through the ceiling. The room where the custody records were made up had been at what was now the entrance. The cells had been smaller and closer together and there had been additional cells along another corridor. The witness had been held in one of those cells and had remained there for approximately seven days. On the second or third day of his detention, he had been able to make out, through the open window in his cell door, two other prisoners in cells diagonally opposite his own, approximately three metres away. He did not know Kenan Bilgin before his arrest. He had seen his photograph in the offices of the Human Rights Association. He had made a statement that he had seen him in custody at the Security Directorate and had agreed to give evidence to that effect.

After making his statement he had been intimidated, in the presence of his wife, by a police officer who had visited him at the school where he taught. The police officer had made threats such as: “You eat from the State’s plate. I will not allow you to dirty that plate. You will suffer the same fate as Kenan Bilgin.” He added that, despite the threats, he had deposed before the National Security Court in November 1994.

Müjdat Yılmaz said that he had been accused of being a member of the TDKP. He had been arrested on 12 September 1994 and had remained in custody until 26 September 1994.

As his two closest relatives had also been detained on the same premises, he had endeavoured to keep watch through an aperture in the cell-door window to see what was happening in the corridor. On 16 or 17 September he had seen a prisoner in the toilets, with his back to the wall. The prisoner was exhausted and did not have the strength to remain upright. He was being insulted and pulled backwards by his hair. The witness had seen the same prisoner on another occasion, in similar circumstances, being dragged along by police officers. On the third occasion he saw him, the prisoner was in very poor shape and incapable of standing up. He had cried out: “My name is Kenan Bilgin. I am registered at Tunceli. The police want to kill me. When you get out of here, inform public opinion about my case.” The officers in charge had prevented him from saying any more by taking hold of him by his hair and hitting him. After being transferred to prison, the witness had learnt that the prisoner concerned was called Kenan Bilgin.

The witness said that it was possible to communicate from one cell to another by raising one’s voice and that he had thus been able to converse from time to time with his niece.

In addition to his written statement he had made a deposition in prison in which he had stated that he could identify the police officers who had dragged Kenan Bilgin back to his cell. The same officers had undressed his wife before his eyes and he was certain he would recognise them.

Salman Mazı said that he had been arrested for aiding and abetting the TDKP and held in custody from 12 to 26 September 1994.

He had seen Kenan Bilgin in person three times and for almost fifteen days had heard his groans when he was taken away for interrogation.

Two prisoners were treated differently from the others. One was Cavit Nacitarhan. They were taken separately to the toilet, being dragged there by their arms by two police officers. On his eighth day in custody, while the witness was washing his hands in the washroom, one of the two prisoners had been brought there. He looked exhausted and had whispered: “My name is Kenan Bilgin. I was taken into custody on 12 September and my name has still not been entered on the record. I think they want to kill me or to arrange for me to disappear. Inform public opinion about my case.” The warder had intervened and dragged him back to his cell. He had seen him a second time, lying on his bed in his cell opposite the toilets in his underpants. A day or two later, he had seen him through the window in his cell door. He was being dragged away.

The witness affirmed that he had heard Kenan Bilgin cry out from his cell, giving his surname, first name and the name of the province from which he came.

Emine Öğün said that she had been arrested with her husband on 12 September 1994 for being a member of an illegal organisation and had remained in custody until 25 September 1994.

Two days before her release, when asking for water through the window in her cell door, she had seen a prisoner in a bad condition who had said to her: “My name is Kenan Bilgin. I was taken into custody on 12 September.”

Ayşe Nur İkiz Akdemir said that she had been arrested on 12 September 1994 at Çanakkale. She had been detained at the Ankara Security Directorate from 13 to 25 September.

She affirmed that she had heard someone cry out “My name is Kenan Bilgin”, and had caught a glimpse, through her cell window, of a dark man, bald and with a moustache, whom she had later identified as Kenan Bilgin.

The witness said that the public prosecutor had taken a statement from her in prison and had asked her to describe the circumstances in which she had seen Kenan Bilgin.

Özer Akdemir said that he had been arrested on 12 September 1994 for being a member of an illegal organisation and had remained in custody until 25 September.

He had been systematically subjected to torture while in detention. He had been able to see through an aperture in the cell-door window that the prisoner in cell no. 8 was subjected to more intensive torture then he. He had seen him being dragged along by four police officers, two of them supporting him by the arms. On the same date he had seen a person with a bag go into cell no. 8 and had heard someone say: “He is not taking any milk. He is not drinking any milk.” On another occasion the witness had seen, again through the window in his cell door, the same prisoner being taken to the toilet. The prisoner had cried out: “My name is Kenan Bilgin. They want to arrange for me to disappear.”

The witness explained that in principle prisoners were not allowed to communicate with each other. However, they would either speak in whispers while at the wash basins or attempt to make themselves heard between cells.

The witness affirmed that he had drafted his written statement in the prison where he was detained. He had been questioned about it by the public prosecutor .

Özden Tönük said that at the material time he had been the Ankara Principal Public Prosecutor, a position he still held. He had not been directly responsible for the investigation into the allegations concerning Kenan Bilgin’s disappearance. His letter of 13 January 1995 to the Ankara public prosecutor’s office contained a description of the actual conditions of detention and of the quarters used for holding prisoners at the Ankara Security Directorate.

He had been to the Security Directorate and had inspected the premises. He had heard evidence from people who said that they had seen Kenan Bilgin in custody. Without giving details, the witness affirmed that their statements were inconsistent. He declined to comment on the conclusion, which read: “Accordingly, it has been concluded that the statements of the persons held in custody were not true.”

The witness explained that he had drafted his report at the request of the Ministry of Justice and had not organised any confrontation between the prisoners who claimed to have seen Kenan Bilgin and the police officers present on the premises at the material time.

Selahattin Kemaloğlu said that at the material time he had been the Ankara public prosecutor. He was now the public prosecutor for the district of Elmadağ (Ankara).

The witness said that it had been another prosecutor, Özden Tönük, who had started the investigation into Kenan Bilgin’s disappearance. The witness had been assigned to the case after a complaint was lodged by Kenan Bilgin’s brother.

He summarised his investigation as follows. He had sent a letter to the Ankara Security Directorate enquiring whether Kenan Bilgin had been detained there. The police had replied that he had at no stage been in custody. He had taken evidence from the witnesses whose names had been supplied by İrfan Bilgin and they had repeated their written statements, saying that they had seen Kenan Bilgin, in very poor shape, in custody at the Ankara Security Directorate. After hearing that evidence he had become convinced that Kenan Bilgin had disappeared like many others.

The witness went on to say: “At the material time there had been a number of cases of disappearances and, as a prosecutor, I was very disturbed by this. On hearing the evidence of the witnesses, I realised that the information given by the police did not reflect the truth. I received no replies to the letters I sent to other police departments. I sent the documents from the investigation to the Principal Public Prosecutor, Özden Tönük, with a request for the cases to be joined. However, the case file was returned to me. I asked the Principal Public Prosecutor to institute criminal proceedings against the head of the Security Directorate under the laws that made it an offence to refuse to cooperate with the relevant prosecuting authorities, as he had failed to produce a list of the police officers on duty when the alleged offences were committed. As the authorities did not respond, I was unable to interview the police officers or to arrange a confrontation with the eyewitnesses. The police enjoyed a sort of immunity at the time. I was not able to visit the premises where the prisoners were detained.”

The witness explained that 12 September was a relatively sensitive date in Turkey and that, at that time of the year, several thousand people were being held in police custody; some of them later disappeared. He said: “At the material time we, the prosecutors, were unable to inspect prisons or police stations. During a visit to the Security Directorate, I heard certain noises and asked the police officers where they were coming from. They replied that they had recorded the sound of people crying out in pain with a view to subduing prisoners. With regard to the present case, I tried to investigate it to the best of my ability. I had strong suspicions but did not manage to get very far. I am of Kurdish origin and my telephone line was being monitored. I was transferred to Elmadağ (Ankara), the district where I worked thirty years ago.”

Mehmet Karataş said that at the material time he was a police officer with the anti-terrorist branch of the Ankara Security Directorate. He was responsible for compiling the custody records.

He described how the custody records were held. The following information was noted on them: the surname and first name of the accused; the surname and first names of the accused’s mother and father; the accused’s date of birth; and the date and time the accused was taken into custody. He said that it was impossible for the name of a person taken into custody to be omitted from the record and that he was under fairly strict instructions in that regard. He said that a custody report was sent every day to the departmental head and to the public prosecutor at the National Security Court.

He indicated that the labels attached to the door handles were numbered and that the prisoners’ names were written on other labels that were affixed to the cell doors.

With regard to the complaint concerning Kenan Bilgin’s disappearance, he had not been interviewed by the authorities and had not been the subject of any investigation. The witness was unable to say whether a prosecutor had inspected the premises in connection with the investigation. According to him, all the allegations of torture had been invented by certain movements hostile to the government and were totally unfounded.

He said that before the events that had given rise to the present case Kenan Bilgin had been arrested for being a member of the TDKP. He had been charged and had served his sentence. He had also been taken into custody for other activities as a member of that illegal organisation. His name was on file and the anti-terrorist branch had his case file containing details of his criminal record and of his membership of an illegal organisation.

Ülkü Met said that at the material time he was deputy director at the Ankara Security Directorate.

He stated that after Kenan Bilgin’s brother had lodged the complaint, the public prosecutor had begun an investigation and had made four or five written requests to the Security Directorate for information, but he had not inspected the premises.

The witness stated that the operation carried out by the police against the TDKP between 12 September and 21 November 1994 was routine and had been undertaken on the basis of information and statements received. The police had relatively large numbers of files on persons who were in custody or had been convicted for belonging to illegal organisations. He said that Kenan Bilgin had not been arrested during the operation; his name was not on the custody record and, in his opinion, the other prisoners’ claims that Kenan Bilgin had been detained at the Security Directorate had been concocted by militants.

He explained that at all times at least two police officers were on duty with the responsibility of carrying out body searches on anyone who had been arrested, collecting their personal effects and getting them to sign a list setting these out. They were also required to enter the names of persons arrested on the custody record.

The witness dismissed all allegations of ill-treatment or torture during custody and stated that, while he had been deputy director, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) had carried out two ad hoc visits to the Security Directorate. He was, however, unable to comment on the two public statements made by the CPT, in which they had found: “Torture and other forms of ill-treatment were still important characteristics of police custody.”

The witness rejected the assertion of the public prosecutor Selahattin Kemaloğlu that the Security Directorate had failed to cooperate with him and said that prosecutors in charge of investigations could inspect the premises at any time.

The principles and procedures relating to liability for illegal acts may be summarised as follows.

Under the Turkish Criminal Code all forms of homicide (Articles 448-55) and attempted homicide (Articles 61 and 62) constitute criminal offences. It is also an offence for a government employee to subject someone to torture (Article 243) or ill-treatment (Article 245). The authorities’ obligations in respect of conducting preliminary investigations into acts or omissions capable of constituting such offences that have been brought to their attention are governed by Articles 151 to 153 of the Code of Criminal Procedure. Offences may be reported to the authorities or the security forces as well as to public prosecutors’ offices. The complaint may be made in writing or orally. If it is made orally, the authority must make a record of it (Article 151).

If there is evidence to suggest that a death is not due to natural causes, members of the security forces who have been informed of that fact are required to advise the public prosecutor or a criminal court judge (Article 152). By Article 235 of the Criminal Code, any public official who fails to report to the police or a public prosecutor’s office an offence of which he has become aware in the course of his duties is liable to imprisonment.

A public prosecutor who is informed by any means whatsoever of a situation that gives rise to suspicion that an offence has been committed is obliged to investigate the facts in order to decide whether or not there should be a prosecution (Article 153 of the Code of Criminal Procedure).

In the case of alleged terrorist offences, the public prosecutor is deprived of jurisdiction in favour of a separate system of national security prosecutors and courts established throughout Turkey.

If the suspected offender is a civil servant and if the offence was committed in the course of his duties, the preliminary investigation of the case is governed by the Law of 1914 on the prosecution of civil servants, which restricts the public prosecutor’s jurisdiction ratione personae at that stage of the proceedings. In such cases it is for the relevant local administrative council (for the district or province, depending on the suspect’s status) to conduct the preliminary investigation and, consequently, to decide whether to prosecute. Once a decision to prosecute has been taken, it is for the public prosecutor to investigate the case.

An appeal to the Supreme Administrative Court lies against a decision of the local administrative councils. If a decision not to prosecute is taken, the case is automatically referred to that court.

Under section 13 of Law no. 2577 on administrative procedure, anyone who sustains damage as a result of an act by the authorities may, within one year after the alleged act was committed, claim compensation from them. If the claim is rejected in whole or in part or if no reply is received within sixty days, the victim may bring administrative proceedings.

Article 125 §§ 1 and 7 of the Constitution provides:

“All acts or decisions of the authorities are subject to judicial review ...

The authorities shall be liable to make reparation for all damage caused by their acts or measures.”

That provision establishes the State’s strict liability, which comes into play if it is shown that in the circumstances of a particular case the State has failed in its obligation to maintain public order, ensure public safety or protect people’s lives or property, without it being necessary to show a tortious act attributable to the authorities. Under these rules, the authorities may therefore be held liable to compensate anyone who has sustained loss as a result of acts committed by unidentified persons.

The CPT has carried out seven visits to Turkey. The first two visits, in 1990 and 1991, were ad hoc visits considered necessary in the light of the considerable number of reports received from a variety of sources containing allegations of torture or other forms of ill-treatment of persons deprived of their liberty, in particular, those held in police custody. A third visit took place at the end of 1992. There were further visits in October 1994, August and September 1996, and October 1997. The CPT’s reports on these visits, other than the one in October 1997, have not been made public, as the State’s consent is required for publication and has not been forthcoming.

The CPT has issued two public statements.

In its public statement adopted on 15 December 1992, the CPT concluded that torture and other forms of severe ill-treatment were important characteristics of police custody. On its first visit in 1990, the following types of ill-treatment were constantly alleged, namely hanging by the wrists tied together behind the back (Palestinian hanging), electric shocks, beating of the soles of the feet (falaka), hosing with pressurised cold water and incarceration in very small, dark, unventilated cells. Its medical examinations disclosed clear medical signs consistent with very recent torture and other severe ill-treatment of both a physical and psychological nature. The on-site observations in police establishments revealed extremely poor material conditions of detention.

On its second visit, in 1991, it found that no progress had been made in eliminating torture and ill-treatment by the police. Many persons made complaints of similar types of ill-treatment – an increasing number of allegations were heard of forcible penetration of bodily orifices with a stick or truncheon. Once again, a number of the persons making such claims were found on examination to display marks or conditions consistent with their allegations. On its third visit, from 22 November to 3 December 1992, its delegation was inundated with allegations of torture and ill-treatment. Numerous persons examined by its doctors displayed marks or conditions consistent with their allegations. It listed a number of these cases. At the Ankara and Diyarbakır Security Directorates, it found equipment that could be used for torture and the presence of which had no other credible explanation. The CPT concluded in its statement that “the practice of torture and other forms of severe ill-treatment of persons in police custody remain[ed] widespread in Turkey”.

In its second public statement issued on 6 December 1996, the CPT noted that some progress had been made over the intervening four years. However, its findings after its visit in 1994 demonstrated that torture and other forms of ill-treatment were still important characteristics of police custody. In the course of the 1996 visits, CPT delegations once again found clear evidence of the practice of torture and other forms of severe ill-treatment by police.


Violation of Art. 5-3 (lack of prompt court review);Violation of Art. 5-4;Remainder inadmissible;Non-pecuniary damage - financial awards;Costs and expenses partial award - Convention proceedings

The applicants were born in 1951 and 1979 respectively and live in Bodrum. The second applicant is the son of the first applicant.

On 28 June 2001 the Muğla Security Directorate asked the Bodrum Chief Public Prosecutor to issue an arrest warrant for sixteen persons who were suspected of being involved in an organised criminal gang. The gang was allegedly involved in bribing officials, threatening people into selling their property and in money laundering. The first applicant’s name was included in the list. Upon the request of the Bodrum Chief Public Prosecutor, the Bodrum Magistrates’ Court issued a warrant allowing the police to conduct searches of the houses of the suspected persons and to arrest them for the purposes of interrogation.

On the same day both applicants were taken into custody in Bodrum. The first applicant was arrested at his home. During the search of his residence the police found two pistols, five hunting rifles, one wire strangulation cord, one butterfly knife, four sets of handcuffs, five commando knives, two cartridge clips and twelve cartridges. The police prepared a search and arrest report, which was signed by the applicant.

The second applicant was working as a security guard in an exchange office owned by Ö.A, the person suspected of being the leader of the gang. While the police were conducting a search of the exchange office in order to arrest Ö.A., the second applicant arrived on the scene and was taken into custody for interrogation.

On 30 June 2001 the Muğla Security Directorate requested authorisation from the Bodrum Public Prosecutor to extend the applicants’ detention in police custody, as there were a number of suspects.

On 4 July 2001 both applicants gave statements to the police. They denied any involvement with the gang. In his statement, the first applicant explained that he knew Ö.A. and had occasionally lent him money. He also confirmed that he had bought a shop from him. However, he denied the allegation that he had been instructed by Ö.A. to threaten people.

On 5 July 2001 both applicants were interrogated by the Bodrum Public Prosecutor. During their questioning, the applicants repeated the statements they had made to the police. The second applicant was subsequently released. On the same day the first applicant was brought before the investigating judge at the Bodrum Magistrate’s Court, who subsequently ordered his detention on remand.

On 11 July 2001 the first applicant filed an objection against the remand decision.

On 23 August 2001 the İzmir State Security Court Public Prosecutor filed a bill of indictment with the İzmir State Security Court against the applicants and sixteen others, accusing them of being involved in the activities of an organised criminal gang, namely by bribing officials and threatening people.

On 17 September 2001 the first applicant filed a petition with the court, requesting his release.

On 17 October 2001 the applicants’ trial began at the İzmir State Security Court. At the end of the hearing, taking into consideration the seriousness of the offence and the evidence in the case file, the court ruled that the first applicant should be kept in detention on remand.

On 23 October 2001 the first applicant’s representative challenged the decision to continue to detain the first applicant on remand before the Istanbul State Security Court, via the registry of the Izmir State Security Court. He alleged that there was insufficient evidence to keep his client in detention. Upon the request of the Istanbul State Security Court, the public prosecutor submitted an opinion on 19 October 2001.

On 22 November 2001 the court refused the first applicant’s request for release. This decision was sent to the Registry of the İzmir State Security Court on 3 December 2001.

On 13 December 2001 the İzmir State Security Court held its second hearing and released the first applicant pending trial.

On 2 May 2002 the court sentenced the first applicant to five months’ imprisonment and acquitted the second applicant.

The fourth paragraph of Article 128 of the Code of Criminal Procedure (as amended by Law no. 3842/9 of 18 November 1992) provides that any person who has been arrested and/or in respect of whom a prosecutor has made an order for his or her continued detention may challenge that measure before the appropriate district judge and, if successful, be released.

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;

(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 allowed by statute for that purpose;

(4) who have been deprived of their liberty without a court order after the statutory time allowed 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 term of imprisonment shorter than the period spent in detention or ordered to pay a pecuniary penalty only...”


David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza

The applicant, Mr Krzysztof Długiewicz, is a Polish national who was born in 1969 and lives in Helmstedt, Germany. He was represented before the Court by Mr J. Angermann, a lawyer practising in Helmstedt, Germany. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.

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

On 21 May 2004 the applicant was arrested by the police.

On 22 May 2004 the Gdańsk District Court (Sąd Rejonowy) decided to detain the applicant on remand in view of the reasonable suspicion that he had smuggled into Poland a large quantity of an illegal substance used for the production of amphetamines. The court held that his detention was necessary to secure the proper course of the proceedings as there was a fear that the applicant would attempt to influence witnesses or evade his trial since he lived in Germany.

On 14 June 2004 the Gdańsk Regional Court (Sąd Okręgowy) dismissed an appeal by the applicant against the decision to detain him.

On 13 August and 17 November 2004 the District Court further extended the applicant’s detention. In the latter decision the court relied on the likelihood that a heavy sentence might be imposed on the applicant.

On 16 December 2004 the applicant was charged with having committed other offences relating to prostitution, deriving profits from it and participating in an organised criminal gang.

On 10 February 2005 the applicant and two co-accused were indicted before the Gdańsk Regional Court.

On the same day the trial court extended the applicant’s detention, referring to the grounds given previously and holding that there was a risk that the accused would try to put pressure on witnesses.

On 15 March 2005 the Gdańsk Regional Court decided that the Gdynia District Court was competent to try the applicant’s case. That decision was quashed on appeal by the Gdańsk Court of Appeal (Sąd Apelacyjny) on 27 April 2005.

On 28 June, 27 September and 15 December 2005 and 14 March 2006 the Gdańsk Regional Court extended the applicant’s pre-trial detention. The trial court reiterated the grounds given previously and found that the accused had not proved the existence of circumstances justifying their release. The court also held that keeping the applicant in detention was necessary to secure the proper course of the trial as not all the witnesses had been heard yet.

The applicant lodged an appeal against the decision of 28 June 2005 but it was dismissed on 3 August 2005 by the Gdańsk Court of Appeal.

As the length of the applicant’s detention had reached the statutory timelimit of two years laid down in Article 263 § 3 of the Code of Criminal Procedure (Kodeks postępowania karnego), the Regional Court applied to the Gdańsk Court of Appeal (Sąd Apelacyjny), asking for the applicant’s detention to be extended beyond that term. The Gdańsk Court of Appeal extended his detention on 18 May and 30 August 2006. The court justified it by the probability that a severe sentence might be imposed on the applicant, which made it likely that, if released, he would obstruct the proceedings.

The applicant appealed against the decision of 30 August 2006 but the appeal was dismissed by the Gdańsk Court of Appeal on 13 September 2006.

Applications by the applicant for release or for the imposition of other preventive measures were dismissed on 2 February 2005 and on 14 March and 10 August 2006.

The trial court held the first hearing on 27 October 2005. Thereafter, hearings were held at regular intervals.

On 24 November 2006 the Gdańsk Regional Court gave judgment in the applicant’s case. The applicant was convicted as charged and sentenced to four years’ imprisonment and a fine. The applicant did not appeal against that judgment and it became final.

On 2 December 2006 the applicant was released.

The relevant domestic law and practice concerning the imposition of detention on remand (aresztowanie tymczasowe), the grounds for its prolongation, release from detention and rules governing other, so-called “preventive measures” (środki zapobiegawcze) are set out in the Court’s judgments in the cases of Gołek v. Poland (no. 31330/02, §§ 27-33, 25 April 2006) and Celejewski v. Poland (no. 17584/04, §§ 22-23, 4 August 2006).


CASE OF PIALOPOULOS AND OTHERS v. GREECE

Violation of P1-1;Violation of Art. 6-1;Not necessary to examine Art. 13;Just satisfaction reserved

The first applicant is a Greek citizen, born in 1951 and living in Pefki in Attika. The second applicant is also a Greek citizen born in 1930 and living in Filothei in Attika. The third applicant is the first applicant’s stepbrother. He is a Greek citizen, born in 1964 and living in Athens. The fourth applicant is the first applicant’s sister. She is a Greek citizen, born in 1949 and living in Geneva.

On 11 February 1987 the first two applicants bought a plot of land in Neo Psihiko of a total surface of 7,723 m2 (block No 16 on the town plan). The first applicant became the owner of 83% of the plot and the second applicant of the rest. On 12 February 1987 the Prefecture (Nomarhia) of Eastern Attika gave the two applicants permission to demolish some old buildings that existed on the plot.

On 18 February 1987 the two applicants applied to the Prefecture for a permit to build a multi-storey shopping centre thereon.

On 25 February 1987 at a meeting of the Municipal Council of Neo Psihiko the mayor informed the councillors that urgent action had to be taken to block the proposed development and accepted that unusual means were being used to forestall the delivery of the permit. However, a councillor drew the mayor’s attention to the fact that the municipality lacked adequate means to expropriate the applicants’ plot.

On 1 June 1987 the Prefect of Eastern Attika decided not to issue any new building permits in respect of commercial premises of a certain size (buildings exceeding 1/4 of the maximum authorised size) in Neo Psihiko for a year (decision no. 10311/1987 published in the Official Gazette on 10 June 1987). He exempted commercial premises for which an application had already been lodged, provided that the file was “complete” in accordance with the presidential decree of 8 September 1983.

On 5 June 1987 the Ministry for the Environment, Town Planning and Public Works advised the first two applicants that the file which they had submitted together with their application for a building permit was “complete”. Given the Prefect’s decision of 1 June 1987, the file “would continue to be considered complete pending resumption of the delivery of new building permits”.

On 31 July 1987 the Prefect of Eastern Attika decided “to extend the freeze on new building licences in respect of block No. 16 in Neo Psihiko by six months as from 13 September 1987”.

On 1 March 1988 the Prefect decided to change the authorised use of the applicants’ plot from development land to park land (decision no. 13580/277/87/1988 published in the Official Gazette on 24 March 1988). Following this decision, the first two applicants requested the town planning authorities of the prefecture to decide who should compensate them for the expropriation of their plot of land. On 16 June 1988 the town planning authorities decided that the applicants should be expropriated by, among others, the Municipality of Neo Psihiko (act no. 51/88). The municipality appealed to the Prefect who, on 26 September 1988, confirmed act no. 51/88 of the town planning authorities and ordered the municipality to compensate the two applicants in respect of 5,697 m2. The municipality appealed against the prefect’s decision of 26 September 1988 to the Secretary General of the Ministry for the Environment, Town Planning and Public Works claiming that it should not bear on its own the cost of compensating the applicants for the 5,697 m2 in question. On 4 January 1989 the Secretary General confirmed the decision of 26 September 1988 of the prefect (decision no. 84888/4910/1989).

On 19 January 1989 the first two applicants asked the single-member first instance civil court (monomeles protodikio) of Athens provisionally to determine their compensation. On 16 November 1989 the court decided that the two applicants should receive 732,300,000 drachmas.

On 20 February 1989 the Municipality of Neo Psihiko applied to the Council of State (Simvulio Epikratias) for judicial review of decision no. 84888/4910/1989 of the Secretary General of the Ministry for the Environment, Town Planning and Public Works. The first two applicants intervened in favour of the Secretary General.

On 28 September 1989 the Secretary General of the Ministry for the Environment, Town Planning and Public Works approved a new town plan for Neo Psihiko, which was published in the Official Gazette on 9 October 1989.

On 21 May 1990 the Prefect of Eastern Attika decided to amend the new town plan of Neo Psihiko. It was provided that the applicants’ plot could only be used as a park and for underground parking. The decision was published in the Official Gazette on 5 June 1990.

On 31 July 1991 the first two applicants requested the Court of Appeal (efetio) of Athens to declare under Article 17 § 4 of the Constitution and Article 11 of legislative decree no. 727/1971 that the Prefect’s decision no. 13580/277/87/1988 concerning the expropriation had been revoked ipso jure on 16 May 1991 because the compensation fixed provisionally had not been paid within eighteen months from the first instance civil court’s decision of 16 November 1989. The State and the Municipality of Neo Psihiko were parties to the proceedings. On 8 November 1991 the Athens Court of Appeal acceded to the applicants’ request (decision no. 9779/1991).

On 21 and 26 February 1992 the Municipal Council of Neo Psihiko discussed the future of the applicants’ plot. On the second occasion, the mayor stated that he had been unable to conclude a loan in order to compensate the applicants in full. He also stated that the owners of neighbouring plots of land had informed him that they lacked the funds to pay part of the applicants’ compensation. Some councillors made proposals which would have lowered the value of the applicants’ plot.

On 4 March 1992 the first two applicants received a letter from the Municipality of Neo Psihiko referring to negotiations which had been conducted with them. The two applicants were invited to agree to a plan for the development of the plot. According to the plan, the municipality would acquire part of the plot and transform it into a park. The applicants would be allowed to construct a building with a two-storey underground garage. There would be shops on the ground floor and offices on the other floors.

On 23 March 1992 the Legal Council of State (Nomiko Simvulio tu Kratus) decided not to appeal in cassation against the decision of the Court of Appeal. On 13 May 1992 it informed the Prefecture of Eastern Attika and the Ministry for the Environment, Town Planning and Public Works accordingly and requested them to take the necessary steps to give effect to that decision.

On 6 July 1992 the Municipal Council of Neo Psihiko discussed the outcome of the negotiations with the first two applicants. The mayor invited the members of the council not to lose sight of the fact that the municipality risked finding itself in a position where it would be unable to pay full compensation to the two applicants for the expropriation of their plot. In the end, the council decided to request the prefecture to expropriate the plot (decision no. 96/92). It proposed the creation of a park, an underground garage and a public building. The two applicants protested.

On 8 July 1992 the first two applicants requested the Prefect of Eastern Attika formally to revoke decision no. 13580/277/87/1988, as he was required to do by the law.

On 30 November 1992 the Council of State examined the Municipality of Neo Psihiko’s application for judicial review of decision no. 84888/4910/1989 of the Secretary General of the Ministry for the Environment, Town Planning and Public Works. The first two applicants, who had intervened in favour of the Secretary General, claimed that this decision did not produce any legal effects because on 8 November 1991 (decision no. 9779/1991) the Court of Appeal had declared that it had been ipso jure revoked. However, the Council considered that, the decision of the appeal court notwithstanding, the administration was under an obligation formally to revoke decision no. 13580/277/87/1988 expropriating the plot. As long as this had not happened, decision no. 84888/4910/1989 could be judicially reviewed. Moreover, the Council considered that the Secretary General of the Ministry for the Environment, Town Planning and Public Works had illegally ordered the Municipality of Neo Psihiko to bear on its own the cost of compensating the applicants for the 5,697 m2 in question. The owners of other neighbouring property were liable as well. The Council of State, therefore, decided to quash decision no. 84888/4910/1989 (decision no. 3730/1992).

On 3 December 1992 the town planning authorities of the Prefecture of Eastern Attika asked the Municipality of Neo Psihiko whether it wished to expropriate the applicants’ plot again and drew its attention to the conditions for doing so. On 19 February 1993 the town planning authorities informed the municipality that, if it wanted the plot to be expropriated, a decision by the municipal council concerning the necessary funds should be adopted before 26 April 1993. On both occasions the town planning authorities informed the municipality that, if it did not take the necessary measures for a fresh expropriation, the prefecture would proceed to the revocation of the first expropriation as it was required to do by law.

On 23 March 1993 the first two applicants applied to the prefecture for a building permit.

On 12 April 1993 the Ministry for the Environment, Town Planning and Public Works informed the Prefecture of Eastern Attika that, decision no. 3730/1992 of the Council of State notwithstanding, the prefecture had to comply with decision no. 9779/1991 of the Athens Court of Appeal and officially revoke the expropriation decision. The ministry also considered that the amendment of the town plan of 21 May 1990 amounted to a new expropriation. According to the case-law of the Council of State, this would be lawful only if there was a serious town-planning need and the money for the compensation was readily available.

On 25 May 1993 the Municipal Council of Neo Psihiko requested the Prefect of Eastern Attika to re-issue act no. 51/88 on the persons liable to pay compensation taking into consideration decision no. 3730/1992 of the Council of State or else to adopt a new decision expropriating the applicants’ plot of land. The municipal council declared that it was ready to pay the compensation required in order for the expropriation to be completed (decision no. 87/1993).

On 17 June 1993 the first two applicants, with a view to reaching a friendly settlement, applied for a building permit offering, at the same time, to construct at their expense a public building for the municipality.

On 19 August 1993 the Prefect of Eastern Attika considered that the municipality’s case for a new expropriation was not convincing and decided to free part of the applicants’ plot for development (decision no. 26224/839/1993 published in the Official Gazette on 3 September 1993). On 20 October 1993 the Municipality of Neo Psihiko applied to the Council of State for judicial review of this decision. The first two applicants intervened in the proceedings in favour of the Prefect.

On 10 July 1995 the Council of State considered that its previous decision no. 3730/1992 could not affect the obligation of the Prefect of Eastern Attika to comply with decision no. 9779/1991 of the Athens Court of Appeal of 8 November 1991 and officially revoked the first expropriation decision. The Council of State found that the Prefecture of Eastern Attika had complied with the above-mentioned decision of the Court of Appeal by issuing decision no. 26224/839/1993. However, this decision had not taken into consideration the fact that the Municipality of Neo Psihiko had fully cooperated in the first expropriation procedure. Neither had it taken into consideration the fact that the main reason for the non-completion of the first expropriation procedure had been the dispute which had arisen as to who should have compensated the first two applicants. In the light of all the above, the Council found that the Prefect of Eastern Attika’s decision not to accede to the municipality’s request for a second expropriation did not contain adequate reasons. The Council of State, therefore, quashed decision no. 26224/839/1993 of the Prefect of Eastern Attika (decision no. 3927/95).

On 2 May 1996 the second applicant requested the Mayor of Neo Psihiko to provide him with a certified copy of the municipality’s budget and of the minutes of the meeting of the municipal council at which the budget had been approved.

On 9 May 1996 the town planning authorities of the Prefecture of Athens, which had taken over the functions of the Prefecture of Eastern Attika, informed the Municipality of Neo Psihiko that, since decision no. 26224/839/1993 of the Prefect of Eastern Attika had been quashed, it was still under an obligation to comply with decision no. 9779/1991 of the Athens Court of Appeal. It also invited the municipality to inform it within 30 days whether there existed a serious town-planning need for the expropriation of the applicants’ plot of land and whether there existed sufficient funds in the municipality’ budget for compensating the applicants. Finally, the prefecture warned the municipality that, in the absence of a prompt reply, it would change the authorised use of the applicants’ plot to development land.

The Mayor of Neo Psihiko replied to the Prefecture of Athens on 9 July 1996 requesting that the applicants’ plot should be expropriated for the following reasons. On the one hand, a number of supermarkets and banks had been recently built in the area, which attracted 5,000 persons and a lot of traffic every day. On the other hand, there were no parks or parking space. As a result, if a new development were authorised, the situation would become intolerable. The mayor referred to the Prefect of Eastern Attika’s decision of 21 May 1990 according to which the applicants’ plot could only be used as a park and for underground parking. The mayor also informed the prefecture that provision had been made for 450,000,000 drachmas in the municipality’s budget for 1996 and an additional sum would be made available in 1997.

On 27 September 1996 the Prefecture of Athens asked the municipality to clarify within ten days whether the sum of 450,000,000 drachmas had been earmarked for the expropriation of the applicants’ plot, what was the estimated total cost of the expropriation, whether the additional sum required existed and, if not, which were the sources from which it could be obtained and what were the prospects of obtaining it. The municipality was again threatened with a decision changing the authorised use of the applicants’ land.

On 16 November 1996 the first two applicants invited the Prefect to comply with decision no. 3927/1995 of the Council of State and decision no. 9779/1991 of the Athens Court of Appeal.

Having received no reply, on 6 February 1997 the second applicant requested the Prefecture of Athens to inform him of the conditions for the development of his plot in Neo Psihiko. On 14 February 1997 the Prefecture of Athens informed the second applicant that, according to the decision of the Prefect of Eastern Attika of 21 May 1990, the plot could only be used as a park and for underground parking. Decision no. 26224/839/1993 of the Prefect of Eastern Attika had been quashed by the Council of State. When the two applicants had originally applied for a building permit there were no restrictions on their plot of land. However, on 1 June 1987 and 31 July 1987 the prefect of Eastern Attika had decided to suspend the delivery of building permits of the kind requested by the two applicants.

On 14 October 1997 the second applicant applied to the town planning authorities of the prefecture for permission to construct an open-air parking area on his plot. The authorities turned his application down referring, inter alia, to the decision of the Prefect of Eastern Attika of 21 May 1990. On 17 October 1997 the second applicant applied to the town planning authorities for permission to construct an underground garage. On 4 November 1997 the authorities replied that the garage would be built by the appropriate organ after the conclusion of the expropriation.

Following a further query by the first two applicants, on 11 December 1997 the Prefecture of Athens informed them that, according to the decision of the Prefect of Eastern Attika of 21 May 1990, their plot of land could only be used as a park and for underground parking and that the decision in question had not been revoked.

On 19 December 1997 the first applicant transferred 20.75% of the plot to the third applicant and 20.75% to the fourth applicant.

On 16 March 1998 the town planning authorities of the Prefecture of Athens informed the Legal Council of State that the decision of 21 May 1990 of the Prefect of Eastern Attika amounted to an expropriation of the applicants’ plot. However, when the town planning authorities wrote to the Municipality of Neo Psihiko on 9 May 1996, they were not aware of this decision. Following the quashing of decision no. 26224/839/1993 of the Prefect of Eastern Attika by the Council of State, the use of the applicants’ plot is governed by the decision of 21 May 1990. The town planning authorities, further to a request by the Municipality of Neo Psihiko, were in the course of determining those liable to pay compensation because of the expropriation.

According to decision no. 3284/86 of the Council of State, an expropriation that has been revoked may be re-imposed only if there is a serious town-planning need and the authorities are able to pay appropriate compensation immediately. In 1986 the Ministry for the Environment, Town Planning and Public Works issued a circular informing the authorities of this development (circular no. 141/1986).

According to the case-law of the Council of State, amendments to town plans must be published in the Official Gazette together with a detailed plan. Otherwise they are null and void (decisions nos. 488/91 and 489/91).