SECOND SECTION

DECISION

Application no. 679/08 Ä°hsan KARTAL against Turkey

The European Court of Human Rights (Second Section), sitting on 7 July 2020 as a Committee composed of:

Valeriu Griţco , President, Arnfinn Bårdsen , Peeter Roosma , judges, and Hasan Bakırcı, Deputy Section Registrar ,

Having regard to the above application lodged on 27 December 2007,

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 Ä°hsan Kartal , is a Tu rkish national, who was born in 1984 and is detained in TekirdaÄŸ . He was represented before the Court by Mr Ä°. AkmeÅŸe , a lawyer practising in Istanbul.

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

The circumstances of the case

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

4 . On 11 April 2006 the applicant was arrested on suspicion of having planted an explosive device in a service bus that carried judges and public prosecutors. On 14 April 2006 he was brought before an investigating judge who ordered his detention on remand.

5 . On 9 May 2006 the Istanbul Public Prosecutor filed an indictment against the applicant charging him with undermining integrity of the State and the unity of the nation.

6 . At the end of each hearing the court reviewed the applicant ’ s pre-trial detention. Taking into account the seriousness of the offence with which the applicant had been charged and the state of the evidence, the court decided to maintain his detention on remand.

7 . After the third hearing, held on 14 March 2007, the applicant filed an objection against the detention order and asked to be released. On 21 March 2007 the Istanbul Assize Court rejected the applicant ’ s request after examining it on the basis of the case file and without holding a hearing. In its judgment, the Assize court took into account a written opinion filed by the public prosecutor, which was not communicated to the applicant or his lawyer.

8 . On 7 December 2007 the Istanbul Assize Court found the applicant guilty as charged and sentenced him to life imprisonment.

9 . On 27 October 2008 the Court of Cassation upheld the applicant ’ s conviction.

COMPLAINTS

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

11 . The applicant complained under Article 5 § 4 of the Convention about the non-communication of the public prosecutor ’ s opinion and the lack of a hearing during the proceedings to challenge the lawfulness of the detention.

12 . The applicant further maintained under Article 5 § 5 that he had no right to compensation under domestic law in respect of his complaints under Article 5 of the Convention.

13 . The applicant complained under Article 6 § 1 of the Convention that the proceedings before the national courts had not been concluded within a reasonable time.

14 . The applicant further alleged a violation of Article 13 of the Convention that there existed no effective remedy under Turkish law whereby he could challenge the excessive length of the proceedings in dispute.

THE LAW

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

16 . The Government asked the Court to reject this complaint for non ‑ exhaustion of domestic remedies. In this respect, they submitted that the applicant should have availed himself of the remedy which would have enabled him to request compensation pursuant to Article 141 of the Code on Criminal Procedure (“CCP”).

17 . The Court observes that the possibility of a seeking a remedy in domestic law, under Article 141 § 1 (d) of the CCP, in respect of complaints concerning alleged excessive length of detention on remand was examined in the cases of A.Åž. v. Turkey (no. 58271/10, §§ 85 ‑ 95, 13 September 2016), and Åžefik Demir v. Turkey , (( dec. ), no. 51770/07, §§ 17-35, 16 October 2012).

18 . In the case of Şefik Demir (cited above) the Court held that that remedy had to be exhausted by the applicants whose convictions became final. It further ruled in its judgment of A.Ş. (cited above, § 92) that as of June 2015 the domestic remedy provided for in Article 141 § 1 (d) of the CCP had to be exhausted by the applicants even before the proceedings became final.

19 . In the instant case, the Court observes that the applicant ’ s detention on remand ended on 7 December 2007 by the Istanbul Assize Court ’ s judgment convicting him, and the judgment became final on 27 October 2008 with the Court of Cassation ’ s decision. As a result, from that date onwards, the applicant had the possibility of initiating compensation proceedings pursuant to Article 141 of the Criminal Procedure Code. However, he failed to do so.

20 . The Court reiterates that the assessment of whether domestic remedies have been exhausted is normally carried out with reference to the date on which the application was lodged with the Court. However, as the Court has held on many occasions, this rule is subject to exceptions, which may be justified by the particular circumstances of each case (see İçyer v. Turkey ( dec. ), no. 18888/02, § 72, ECHR 2006 ‑ I). The Court has previously departed from this rule in cases concerning the above-mentioned remedy in respect of the length of detention, which became applicable after the final decision on the criminal proceedings (see also, among others, Tutal and Others v. Turkey ( dec. ), no. 11929/12, 28 January 2014). The Court takes the view that the exception should be applied in the present case as well.

21 . As a result, taking into account the Government ’ s objection, the Court concludes that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

22 . Relying on Article 5 § 4 of the Convention, the applicant complained that the reviews of his detention had been conducted on the basis of the case file, and that in delivering its decisions the appeal courts had taken account of public prosecutors ’ written opinions, which had not been communicated to him or his representative.

23 . The Court notes that Article 5 § 4 of the Convention applies to proceedings before a court following an appeal against a decision extending a person ’ s detention. The applicant filed such an ob jection after the hearing of 14 March 2007. The Assize Court rejected that objection on 21 March 2007. However, the present application was lodged with the Court on 27 December 2007, that is more than six months later. As a result, the applicant ’ s complaint in relation to that review procedure must be rejected for non-compliance with the six-month time-limit, pursuant to Article 35 §§ 1 and 4 of the Convention.

24 . Apart from the above–mentioned objection filed by the applicant, there have been eleven occasions where the Assize Court reviewed the applicant ’ s continued detention on its own motion. The Court observes that proceedings by which the prolongation of a detention is examined at the court ’ s own motion, separately and in addition to the proceedings which a detained person is entitled to take, do not fall within the scope of Article 5 § 4 of the Convention (see Altınok v. Turkey , no. 31610/08 , §§ 39-40, 29 November 2011, and Ali Rıza Kaplan v. Turkey , no. 24597/08 , § 25, 13 November 2014). It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 §§ 3 and 4.

25 . The applicant complained under Article 5 § 5 of the Convention that he had no right to compensation under domestic law in respect of his complaints under Article 5 of the Convention.

26 . The Court reiterates that paragraph 5 of Article 5 is complied with where it is possible to apply for compensation in respect of a deprivation of liberty effected in conditions contrary to paragraphs 1, 2, 3 or 4 ( Wassink v. the Netherlands , 27 September 1990, § 38, Series A no. 185 ‑ A). The right to compensation set forth in paragraph 5 therefore presupposes that a violation of one of the preceding paragraphs of Article 5 has been established, either by a domestic authority or by the Court.

27 . Accordingly, the Court cannot consider an applicant ’ s claim based exclusively on Article 5 § 5 unless a breach of Article 5 §§ 1 to 4 has been established directly or in substance, either by the domestic authorities or by the Court itself. It follows that as the applicant ’ s case does not disclose such a breach, his claim under Article 5 § 5 should be rejected for being incompatible ratione materiae with the provisions of the Convention.

28 . The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement laid down in Article 6 § 1 of the Convention.

29 . The Government maintained that this part of the application should be declared inadmissible for non-exhaustion of domestic remedies as the applicant should apply to the Compensation Commission.

30 . The Court observes that a new domestic remedy has been established in Turkey following the application of the pilot judgment procedure in the case of Ümmühan Kaplan v. Turkey (no. 24240/07, 20 March 2012). Subsequently, in its decision in the case of Turgut and Others v. Turkey (( dec. ), no. 4860/09, 26 March 2013), the Court declared a new application inadmissible on the ground that the applicants had failed to exhaust domestic remedies, that is to say the new remedy. In so doing, the Court considered in particular that this new remedy was a priori accessible and capable of offering a reasonable prospect of redress for complaints concerning the length of proceedings.

31 . The Court notes that in its judgment in the case of Ümmühan Kaplan (cited above, § 77) it stressed that it could nevertheless examine, under its normal procedure, applications of this type which had already been communicated to the Government.

32 . However, taking account of the Government ’ s preliminary objection with regard to the applicant ’ s failure to make use of the domestic remedy established by Law no. 6384, the Court reiterates its conclusion in the case of Turgut and others (cited above).

33 . It therefore concludes that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

34 . The applicant further alleged a violation of Article 13 of the Convention that there existed no effective remedy under Turkish law whereby they could challenge the excessive length of the proceedings in dispute.

35 . The Court recalls that the Compensation Commission established by Law No. 6384 provides for a remedy to the applicant within the meaning of Article 13 of the Convention to complain about the length of proceedings for the purposes of Article 6 § 1 of the Convention (see Turgut and Others , cited above, §§ 59-60).

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

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 17 September 2020 .

Hasan Bakırcı Valeriu Griţco Deputy Registrar President