SECOND SECTION

DECISION

Application no. 36307/09 Cüneyt GEN ÇERİ against Turkey

The European Court of Human Rights (Second Section), sitting on 30 April 2019 as a Committee composed of:

Valeriu Griţco , President, Ivana Jelić , Darian Pavli, judges,

and Hasan Bakırcı, Deputy Section Registrar ,

Having regard to the above application lodged on 29 May 2009,

Having regard to the declaration submitted by the respondent Government on 19 November 2018 requesting the Court to strike the application out of the list of cases and the applicant ’ s reply to that declaration,

Having deliberated, decides as follows:

FACTS AND PROCEDURE

1. The applicant, Mr Cüneyt Genceri , is a Turkish national, who was born in 1975 and lives in istanbul . He was represented before the Court by Mr İ. Akmeşe , a lawyer practising in Istanbul.

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

3. On 3 November 2008 the judge at the Istanbul Assize Court decided to restrict access to the investigation file in accordance with Article 153 § 2 of Law no. 5271 on the Code of Criminal Procedure. Subsequently, on 16 March 2009 the applicant was placed in police custody on suspicion of drug trafficking. On 19 March 2009 the applicant ’ s lawyer asked the court to lift the restriction on the investigation file. On 20 March 2009 the Istanbul Assize Court rejected this objection. On the same day, the applicant was placed in detention on remand. On 14 April 2009 the public prosecutor filed an indictment with the Istanbul Assize Court charging the applicant with membership of an illegal organisation and drug trafficking. On 27 April 2009 the Istanbul Assize Court accepted the indictment, and the restriction on the investigation file was lifted. Between 5 October 2009 and 29 January 2013 the trial court ordered the continuation of the applicant ’ s detention on remand. Between the hearings, the court ex officio examined the applicant ’ s detention on remand at regular intervals on the basis of the case-file and decided to extend it. On 29 January 2013 the Istanbul Assize Court convicted the applicant as charged and sentenced him to imprisonment. The court also ordered the continuation of his detention. On 25 September 2014 the Court of Cassation upheld the judgment of the first ‑ instance court.

4. The case was communicated to the Government.

5. After unsuccessful friendly-settlement negotiations, by letter dated 19 November 2018, the Government informed the Court that they proposed to make a declaration with a view to resolving the issues raised under Article 5 §§ 4 and 5 of the Convention in the application. They further requested the Court to strike out this part of the application in accordance with Article 37 of the Convention.

The declaration provided as follows:

“The Government of Republic of Turkey hereby wish to express, by way of unilateral declaration, their acknowledgement that the applicant ’ s rights to liberty and security did not meet the standards enshrined in Article 5 §§ 4 and 5 of the Convention.

I declare that the Government accordingly offer to pay the applicant EUR 750 (seven hundred and fifty euros) to cover any and all pecuniary and non-pecuniary damages and EUR 150 (one hundred and fifty euros) to cover any and all costs and expenses, plus any tax that may be chargeable to the applicant.

The Government therefore invites the Court to strike the present case out of the list of cases. They suggest that the present declaration might be accepted by the Court as “any other reason” justifying the striking out of the case of the Court ’ s list of cases, as referred to in Article 37 § 1 (c) of the Convention. These sums will be converted into local currency at the rate applicable on the date of payment, and will be payable within three months from the date of notification of the decision taken by the Court to strike the case out of its list of cases. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The payment will constitute the final resolution of the case.”

6. On 3 January 2019 the Court received a letter from the applicant informing the Court that he had agreed to the terms of the Government ’ s declaration.

THE LAW

I. ARTICLE 5 §§ 4 AND 5 OF THE CONVENTION

7. The applicant complained under Article 5 § 4 the Convention his right to have an effective remedy to challenge the lawfulness of his detention had been breached since his objections had been dismissed by the appeal court on the basis of the public prosecutor ’ s written opinions, which had not been communicated to him or to his representative. He further alleged under Article 5 § 5 of the Convention that he had been denied the right to compensation for a breach of his rights under Article 5 § 4 of the Convention.

8. T he Court considers that following the applicant ’ s express agreement to the terms of the declaration made by the Government the case should be treated as a friendly settlement between the parties.

9. It therefore takes note of the friendly settlement reached between the parties as regards the applicant ’ s complaints Article 5 §§ 4 and 5 of the Convention . It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no reasons to justify a continued examination of the application.

10. In view of the above, it is appropriate to strike the case out of the list in so far as it relates to the above complaints .

II. REMAINING COMPLAINTS

A. As regards the length of the applicant ’ s police custody

11. The applicant complained under Article 5 § 3 of the Convention about the length of his detention in police custody.

12. In the present case, the applicant was taken into police custody on 16 March 2009 and his custody ended on 20 March 2009, with his detention on remand. Thus the Court observes that the applicant remained in custody for four days.

13. The Court notes that, during the period of that the applicant ’ s custody, he was heard by the police and the public prosecutor. In addition, he was arrested in the context of an investigation involving several others suspects accused of membership of a criminal organisation and illegal drug trafficking. In this regard, given the context in which the applicant was arrested, the Court concludes that the applicant ’ s detention in police custody for four days cannot be considered unreasonable.

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

B. As regards the length of the applicant ’ s pre-trial detention

15. The applicant complained under Article 5 § 3 of the Convention that the length of his pre-trial detention had been excessive. He also submitted that his detention had been prolonged without any relevant and sufficient reasons justifying the continuation of his detention.

16. The Government maintained that the applicant had not exhausted domestic remedies, as he was still in detention on remand on 23 September 2012 and should have applied to the Constitutional Court.

17. Having examined the main aspects of the new remedy before the Turkish Constitutional Court, the Court found that the Turkish Parliament had entrusted that court with powers that enabled it to provide, in principle, direct and speedy redress for violations of the rights and freedoms protected by the Convention, in respect of all decisions that had become final after 23 September 2012, and declared it as a remedy to be used (see Hasan Uzun v. Turkey , ( dec. ), no. 10755/13, §§ 68-71, 30 April 2013).

18. The Court further notes that the Constitutional Court ’ s jurisdiction ratione temporis had begun on 23 September 2012 and it was clear from the judgments already delivered that it accepted an extension of its jurisdiction ratione temporis to situations involving a continuing violation which had commenced before the introduction of the right of individual application and had carried on after that date.

19. In the present case the applicant ’ s pre-trial detention commenced on 16 March 2009 and ended on 29 January 2013 when he was convicted. Accordingly, the applicant ’ s detention, including the period before 23 September 2012, fell within the Constitutional Court ’ s temporal jurisdiction (see Koçintar v. Turkey ( dec. ), no 77429/12, §§ 15-26, 39, 1 July 2014 and Levent Bektaş v. Turkey , no. 70026/10, §§ 40-42, 16 June 2015).

20. As a result, taking into account the Government ’ s preliminary objection, the Court 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.

C. Concerning the applicant ’ s inability to be present before the appeal court examining the objections to his detention

21. The applicant complained under Article 5 § 4 of the Convention about not being able to appear before the court when his pre- trial detention was reviewed.

22. The Government contested that argument.

23. In the present case, the applicant was placed in pre-trial detention on 20 March 2009. The applicant subsequently filed an objection against this decision.

24. The Court notes that the applicant ’ s objection was dismissed on 30 March 2009 by the appeal court, without holding an oral hearing. Nevertheless, the applicant had appeared before the trial court ten days before his objection was examined. In these circumstances, the Court does not consider that a further oral hearing before the appeal court was required for the purposes of Article 5 § 4 of the Convention (see, Çelik v. Turkey , no. 6670/10, § 18, 17 March 2015).

25. The Court concludes that this part of the complaint is manifestly ill ‑ founded and must be rejected, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

D. Concerning the restriction of access to the investigation file

26. The applicant complained that on account of the restriction placed on his access to the investigation file, he had not been able to challenge the evidence which had been the grounds for the decision to detain him on remand.

27. The Government contested that argument.

28. The Court observes that people who have been arrested or detained are entitled to a review bearing upon the procedural and substantive conditions which are essential for the “lawfulness”, in the sense of the Convention, of their deprivation of liberty. A court examining an appeal against detention must provide guarantees of a judicial procedure. The proceedings must be adversarial and must always ensure “equality of arms” between the parties, the prosecutor and the detained person (see Ceviz v. Turkey , no. 8140/08, § 41, 17 July 2012).

29. In the instant case, the Court notes that on 3 November 2008 the judge at the Ä°stanbul Assize Court decided to restrict access to the investigation file to ensure proper conduct of the investigation. However, on 18 and 20 March 2009, the applicant was questioned, in the presence of his lawyer, by the police and later by both the public prosecutor and investigating judge. He was informed about the charges of which he was suspect. The applicant gave elaborated statements and denied his involvement in illegal drug trafficking.

30. In the light of the foregoing, the Court considers that both the applicant and his lawyer had sufficient knowledge of the content of the investigation file and that they had the opportunity to challenge the pre-trial detention order (see Ceviz , cited above, §§ 41-44; Karaosmanoğlu and Özden , no. 4807/08, § 74, 17 June 2014; and Ayboğa and Others v. Turkey , no. 35302/08, § 17, 21 June 2016).

31. The Court concludes that this part of the application is manifestly ill ‑ founded and must be rejected, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

E. Length of the criminal proceedings

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

33. 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. They 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.

34. The Court observes that, as pointed out by the Government, 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.

35. The Court notes that in its decision 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.

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

37. 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.

F. Article 13 of the Convention

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

39. 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).

40. 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,

Decides to strike the application out of its list of cases, in so far as it relates to the complaints under Article 5 §§ 4 and 5 of the Convention, in accordance with Article 39 of the Convention;

Declares the remainder of the application inadmissible.

Done in English and notified in writing on 23 May 2019 .

Hasan Bakırcı Valeriu Griţco Deputy Registrar President