SECOND SECTION

DECISION

Application no . 14129/11 Hac ı İNAN against Turkey

The European Court of Human Rights (Second Section), sitting on 4 November 2014 as a Chamber composed of:

Guido Raimondi , President, Işıl Karakaş , Nebojša Vučinić , Helen Keller , Paul Lemmens , Egidijus Kūris , Robert Spano , judges, and Abel Campos , Deputy S ection Registrar ,

Having regard to the above application lodged on 27 December 2010 ,

Having regard to the decision of 11 December 2012 ,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Mr Hac ı İnan, is a Turkish national, who was born in 1959 and is serving a prison sentence in Bolu F-type prison. He is represented before the Court by Mr N. Özdemir, a lawyer practising in Diyarbakır.

2 . The Turkish Government (“the Government”) are represented by their Agent.

A. The circumstances of the case

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

4 . According to the applicant ’ s submissions , he was arrested at gunpoint by police officers from the anti-terrorist branch of the Istanbul Security Directorate on 18 May 2000. The arrest and custody report drafted by the police indicate that he was taken into custody on 21 May 2000. According to this report, during the arrest, officers used force as the applicant attempted to flee.

5 . Between 24 and 26 May 2000 the applicant made statements to the police. He was questioned, in particular, about his alleged links to Hizbullah , an illegal organisation , and complicity in a homicide.

6 . On 27 May 2000 the applicant was referred to a doctor at the end of his detention in police custody. According to the medical report issued in respect of the applicant, he had sustained injuries to the right and left sides of his back and his left elbow. The doctor concluded that these injuries rendered the applicant unfit to carry out daily activities for three days.

7 . On the same day the applicant was brought before a public prosecutor and then before the duty judge at the Istanbul State Security Court. He denied his statements taken i n police custody , alleging that he had been tortured. The judge ordered the applicant ’ s detention on remand on suspicion of membership of Hizbullah and committing offences on its behalf.

8 . On 8 June 2000 the public prosecutor filed a bill of indictment against the applicant, along with a number of other persons, with the Istanbul State Security Court. The applicant was charged with attempting to undermine the constitutional order, an offence proscribed under Article 146 § 1 of the former Criminal Code.

9 . In 2001 the case against the applicant and his co-accused was joined with another case brought against a number of other persons who had been charged with membership of Hizbullah .

10 . State Security Courts were abolished by Law no. 5190 of 16 June 2004 , published in the Official Gazette on 30 June 2004 . The case against the applicant was therefore transferred to the Istanbul Assize Court.

11 . On 3 September 2009 the applicant maintained before the Istanbul Assize Court that his police statement s did not reflect the truth , as he had been subject to ill-treatment during his detention in police custody.

12 . On 27 October 2010 the applicant ’ s lawyer submitted to the first ‑ instance court that the applicant ’ s police statement s as well as a number of documents in the case file should not be used as evidence against him as the applicant had been subjected to torture in police custody. He further noted that no investigation had been initiated into the applicant ’ s allegations of ill-treatment.

13 . On 4 January 2011 the Istanbul Assize Court ordered the applicant ’ s release pending trial. However, he was not released from prison on account of other charges against him.

14 . On 18 October 2011 the applicant was released from prison.

15 . On 16 February 2012 the Istanbul Assize Court convicted the applicant as charged and sentenced him to life imprisonment without the possibility of parole. With the final decision the Assize Court issued an order for the applicant ’ s arrest.

16 . On 15 May 2013 the Court of Cassation upheld the judgment of 16 February 2012 in so far as it concerned the applicant.

17 . According to the applicant ’ s submissions, meanwhile , in 2000, he lodged a petition with the Fatih public prosecutor ’ s office against the police officers who had allegedly inflicted torture on him. During the same year, the Fatih public prosecutor initiated an investigation into the allegations of ill-treatment of the applicant, along with six other persons, who were the applicant ’ s co-accused.

18 . On 25 December 2002 the Fatih public prosecutor decided not to bring criminal proceedings against the police officers suspected of torture and inhuman treatment, holding that there was insufficient evidence in support of the complainants ’ allegations. In his decision, the public prosecutor also decided that the decision be served on the complainants in accordance with Article 164 of the former Code o f Criminal Procedure. According to this decision, within the context of the investigation, the Fatih public prosecutor examined the medical reports issued in respect of the complainants and obtained statements of a number of police officers who had been on duty at the time of the complainants ’ detention in police custody. There is nothing in the case file demonstrating that the applicant lodged an appeal against the decision of the Fatih public prosecutor.

B. Relevant domestic law

19 . A description of the relevant domestic law can be found in Nurettin Aldemir and Others v. Turkey , nos. 32124/02, 32126/02, 32129/02, 32132/02, 32133/02, 32137/02 and 32138/02, § 23, 18 December 2007; Åžefik Demir v. Turkey ((dec.), no. 51770 /07, §§ 11-15, 16 October 2012) ; and Müdür Turgut and Others v. Turkey ((dec.), no. 4860/09, §§ 19 ‑ 26, 26 March 2013).

COMPLAINTS

20 . The applicant complained under Article 3 of the Convention that he had been subjected to ill-treatment in police custody and that no effective investigation had been instigated into his allegations of ill-treatment.

21 . The applicant further maintained under Article 5 § 3 of the Convention that the length of his pre-trial detention had been excessive.

22 . The applicant contended under Article 6 § 1 of the Convention that the criminal proceedings against him had not been concluded within a reasonable time.

23 . The applicant finally complained under Article 13 of the Convention that there was no effective domestic remedy in respect of his complaint regarding the length of the proceedings.

THE LAW

A. As regards the applicant ’ s complaint under Article 3 of the Convention

24 . The applicant alleged under Article 3 of the Convention that he had been ill-treated whilst detained at the Istanbul Security Directorate. He further maintained that his complaint regarding his alleged ill-treatment lodged with the public prosecutor ’ s office had yielded no result.

25 . The Government submitted that the applicant had failed to comply with the six-month rule. In this connection, they maintained that the Fatih public prosecutor had decided not to bring criminal proceedings against the suspected police officers on 25 December 2002 whereas the applicant lodged his application with the Court on 27 December 2010.

26 . The applicant did not comment on the Government ’ s objection.

27 . Before considering whether the applicant submitted his application to the Court in compliance with the six-month time-limit, the Court considers it necessary to examine the issue of exhaustion of domestic remedies in the present case.

29 . It follows that, despite the Court ’ s well-established case-law that an appeal against decisions of public prosecutors not to prosecute constitutes, in principle, an effective and accessible remedy , for allegations under Article 3, the applicant ’ s complaint in this respect cannot be rejected by the Court on the ground that the domestic remedies have not been exhausted.

30 . Turning to the issue of the six-month time-limit, the Court observes that the Fatih public prosecutor initiated an investigation into the applicant ’ s allegations of ill-treatment soon after he had lodged his complaint in the year 2000; he examined the medical reports issued in respect of the applicant and took statements from a number of police officers. As a result of this investigation, on 25 December 2002 the public prosecutor issued a decision. The Court notes at this juncture that Article 164 of the former Code of Criminal Procedure, in force at the relevant time, provided for notification of public prosecutors ’ decisions not to prosecute the accused and the complainants. The Court further observes that the applicant did not claim that this decision had not been notified to him. Nor did he submit that he had been hindered in obtaining information on the progress made in that investigation. Besides, t here is nothing in the case file to suggest that the applicant was prevented from doing so by intimidation or otherwise.

31 . Furthermore, on the basis of the documents submitted by the parties, the Court cannot but notice that the applicant raised his allegations of ill ‑ treatment only on two occasions and not before the year 2009 before the trial courts and that, in these submissions, he confined himself to challenging the admissibility of his police statement s as evidence (see paragraphs 11 and 12 above).

32 . In these circumstances, the Court is led to conclude that after submitting a petition to the Fatih public prosecutor ’ s office in 2000, the applicant remained totally passive with regard to his complaint of ill ‑ treatment until 27 December 2010, the date on which he lodged his application with the Court. Neither the applicant nor his lawyer enquired about the developments in the investigation or attempted to object to the decision taken by the public prosecutor. While the applicant ’ s inactivity for a certain period can be explained by the fact that he was in detention on remand, he could nevertheless have been expected to display due diligence , to take steps to keep track of the investigation ’ s progress, and to lodge his application with the Court with due expedit ion, in any case long before 27 December 2010 (see Mocanu and Others v. Romania [ GC], nos. 10865/09, 45886/07 and 32431/08 , § 263, ECHR 2014 (extracts) ).

33 . In view of the foregoing and the applicant ’ s failure to demonstrate the existence of specific circumstances which might have prevented him from observing the six-month time-limit, the Court finds that this part of the application has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

B. As regards the applicant ’ s complaint under Article 5 § 3 of the Convention

34 . The applicant contended under Article 5 § 3 of the Convention that the length of his detention on remand had been unreasonably long.

35 . Referring to the possibility of claiming compensation for unlawful detention under Article 141 of the Code of Criminal Procedure (Law no. 5271), the Government submitted that the applicant had failed to exhaust domestic remedies.

36 . The applicant replied that the remedy referred to by the Government was not effective.

37 . The Court recalls that in its decision in the case of Åžefik Demir v. Turkey (no. 51770/07, §§ 17-35, 16 October 2012), it declared the applicant ’ s complaint under Article 5 § 3 of the Convention inadmissible for non ‑ exhaustion of domestic remedies as he had failed to use the remedy provided in Article 141 of the Code of Criminal Procedure, despite the fact that the first-instance court ’ s judgment against him had become final.

38 . In the instant case, the Court observes that the applicant ’ s detention on remand ended in 2011 and the Istanbul Assize Court ’ s judgment convicting him became final on 15 May 2013 with the Court of Cassation ’ s decision (see paragraph 16 above). As a result, from that date onwards, the applicant could have sought compensation pursuant to Article 141 of the Code of Criminal Procedure, but he failed to do so.

39 . It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

C. As regards the applicant ’ s complaint under Article 6 § 1 of the Convention

40 . The applicant complained that the length of the criminal proceedings against him did not comply with the “reasonable time” requirement of Article 6 § 1 of the Convention.

41 . The Government noted that pursuant to Law no. 6384 a new Compensation Commission had been established to deal with applications concerning the length of proceedings and the non ‑ execution of judgments. They maintained that the applicant had not exhausted domestic remedies, as he had not made any application to that Compensation Commission: this ground had also been recognised by the Court in its decision in the case of Müdür Turgut and Others (cited above).

D. As regards the applicant ’ s complaint under Article 13 of the Convention

43 . The applicant submitted under Article 13 of the Convention that he had no effective remedy in domestic law whereby he could challenge the length of the criminal proceedings against him.

44 . The Government argued that the complaint was inadmissible in the light of the establishment of the above-mentioned Compensation Commission.

45 . The Court notes that in its Müdür Turgut and Others decision it held that the Compensation Commission established by Law no. 6384 provides an effective remedy within the meaning of Article 13 of the Convention with regard to complaints about the length of proceedings under Article 6 § 1.

For these reasons, the Court, unanimously,

Declares inadmissible the remainder of the application.

Abel Campos Guido Raimondi Deputy Registrar President