CASE OF FILIZ AND KALKAN v. TURKEY
Violation of Art. 5-3;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
Georg Ress
9. On 28 July 1996 police officers from the anti-terrorist branch of the İzmir Security Directorate arrested the applicants on suspicion of membership of an illegal organisation, the PRK-Rızgari. 10. On 5 August 1996 the İzmir State Security Court ordered the applicants' detention on remand. 11. On 28 August 1996 the Chief Public Prosecutor filed an indictment with the İzmir State Security Court charging the applicants with membership of the PRK-Rızgari and undertaking actions against the indivisible integrity of the state. The charges were brought under Articles 125 and 168 of the Criminal Code. 12. In a judgment dated 14 August 1997 the İzmir State Security Court acquitted Ms Melahat Filiz of the charges, holding that there was insufficient evidence to convict her. The court found Mr Nadir Kalkan guilty of the offences under Articles 125 and 168 and sentenced him to capital punishment. 13. On 19 September 1997 Mr Kalkan lodged an appeal with the Court of Cassation. The applicant did not submit any information concerning the outcome of the criminal proceedings against him. 14. Article 19 of the Constitution provides: “Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with the formalities and conditions prescribed by law: ... The arrested or detained person must be brought before a judge within forty-eight hours at the latest or, in the case of offences committed by more than one person, within fifteen days ... These time-limits may be extended during a state of emergency... ... A person deprived of his liberty for whatever reason shall have the right to take proceedings before a judicial authority which shall give a speedy ruling on his case and order his immediate release if it finds that the deprivation of liberty was unlawful. Compensation must be paid by the State for damage sustained by persons who have been victims of treatment contrary to the above provisions, as the law shall provide.” 15. Article 168 of the Criminal Code provides: “Any person who, with the intention of committing the offences defined in Articles ..., forms an armed gang or organisation or takes leadership ... or command of such a gang or organisation or assumes some special responsibility within it shall be sentenced to not less than fifteen years' imprisonment. The other members of the gang or organisation shall be sentenced to not less than five and not more than fifteen years' imprisonment.” 16. Article 125 of the Criminal Code provides: “It shall be an offence, punishable by the death penalty, to commit any act aimed at subjecting the State or any part of the State to domination by a foreign State, diminishing the State's independence or removing part of the national territory from the State's control.” 17. Under Articles 3 and 4 of the Prevention of Terrorism Act (Law no. 3713 of 12 April 1991), the offences defined in Articles 125 and 168 of the Criminal Code are classified as “terrorist” acts. Pursuant to Article 5 of Law no. 3713, penalties laid down in the Criminal Code as punishment for the offences defined in Articles 3 and 4 of the Act are increased by one half. 18. Under Article 9 of Law no. 3842 on procedure in the state security courts, only these courts can try cases involving the offences defined in Articles 125 and 168 of the Criminal Code. 19. At the material time, Article 30 of Law no. 3842 of 18 November 1992, amending the legislation on criminal procedure, provided that, with regard to offences within the jurisdiction of state security courts, any arrested person had to be brought before a judge within 48 hours at the latest, or, in the case of offences committed by more than one person, within 15 days.