SECOND SECTION

DECISION

Application no. 49005/09 Abdullah YALÇ I N against Turkey

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

Julia Laffranque , President, Stéphanie Mourou-Vikström , Arnfinn Bårdsen , judges,

and Hasan Bakırcı, Deputy Section Registrar ,

Having regard to the above application lodged on 17 August 2009,

Having regard to the declaration submitted by the respondent Government on 6 September 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 Abdullah Yalçın , is a Turkish national, who was born in 1973 and lives in Diyarbakır. He was represented before the Court by Mr M. Özbekli , a lawyer practising in Diyarbakır.

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

3. The applicant complained under Article 6 §§ 1 and 3 of the Convention that he had been denied the assistance of a lawyer during the initial stages of the criminal proceedings, and that his conviction was based on the statements he had made to the police in the absence of a lawyer. He further complained under Article 5 § 1 of the Convention that his deprivation of liberty during the period between 31 December 2010 and 7 February 2011 had been unlawful, in breach of the Article 102 § 2 of the Code of Criminal Procedure (“CCP”) in force at the material time, which provided for a maximum period of detention of ten years. Lastly, the applicant alleged under Article 5 § 3 of the Convention that the length of his detention on remand had been excessive.

4 . The application was communicated to the Government under Article 5 §§ 1 and 3 and Article 6 §§ 1 and 3 of the Convention.

5. After unsuccessful friendly-settlement negotiations, by a letter dated 6 September 2018 the Government informed the Court that they proposed to make a declaration with a view to resolving the issues raised by the application.

6. The declaration provided as follows:

“The Government of Turkey acknowledge that in the present case there has been a violation of the applicant ’ s rights under Articles 6 §§ 1 and 3 of the Convention in the light of the well-established case-law of the Court.

The Government also recalls that Law no. 4928 on 15 July 2003 repealed the provision concerning the systemic restriction on the right of access to a lawyer.

The Government further emphasises that Article 311 § 1 (f) of the Code on Criminal Procedure, as amended by Law no.7145 of 31 July 2018, now requires reopening of criminal proceedings in cases where the European Court of Human Rights decides to strike an application out of its list of cases following a friendly settlement or a unilateral declaration. The Government considers that the aforementioned remedy is capable of providing redress in respect of the applicants ’ complaints under Article 6 of the Convention.

The Government thus offer to pay the applicant, Abdullah YALÇIN, EUR 500 (five hundred euros) to cover any pecuniary and non-pecuniary damage as well as costs and expenses, plus any tax that may be chargeable to the applicant with a view to resolving the above-mentioned case pending before the European Court of Human Rights.

This sum will be converted into Turkish liras at the rate applicable on the date of payment, and will be payable within three months from the date of notification of the decision by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. 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.”

7. On 5 November 2018, 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

A. As regards the complaints under Article 6 §§ 1 and 3 of the Convention

8. Having regard to the applicant ’ s complaints under Article 6 §§ 1 and 3 of the Convention, the Court finds 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 in so far as it relates to the above complaint . 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 complaint .

B. As regards the complaint under Article 5 § 1 of the Convention

11. The applicant further complained under Article 5 § 1 of the Convention that his deprivation of liberty was unlawful for the period between 31 December 2010 and 7 February 2011. In that connection, he alleged that he should have been released by the entry into force of Article 102 of the Code on Criminal Procedure (“CCP”) on 31 December 2010, which provided for a maximum period of detention for ten years, as he had already been detained for ten years when the provision in question entered into force.

12. The Government raised a preliminary objection concerning the exhaustion of domestic remedies as, in their view, the applicant should have requested compensation pursuant to Article 141 § 1 (a) of the CCP.

13. The Court observes that the domestic remedy in application of Article 141 § 1 (a) of the CCP with regard to the lawfulness of deprivation of liberty was examined in the case of Mustafa Avci v. Turkey , no. 39322/12, §§ 63-67, 23 May 2017.

14. In the instant case the Court notes that the applicant was released on 7 February 2011 with his release pursuant to Article 102 § 2 of the CCP, whereas his conviction became final on 17 March 2011 with the decision of the Court of Cassation. The Court observes that the applicant, although he was entitled, failed to seek compensation under Article 141 § 1 (a) of the CCP.

15. 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. ), 11929/12, 28 January 2014). The Court takes the view that the exception should be applied in the present case as well , despite the fact that the applicant ’ s complaint relates to the legality of his detention under article 5 § 1 of the Convention.

16. 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.

C. As regards the complaint under Article 5 § 3 of the Convention

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

18. The Government asked the Court to reject this complaint due to non-exhaustion of domestic remedies. In this respect, they submitted that the applicant should have requested compensation pursuant to Article 141 (d) of the Code on Criminal Procedure (“CCP”).

19. The Court observes that the domestic remedy in application of Article 141 § 1 (d) of the CCP with regard to 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).

20 . The Court recalls that in its decision in the case of Demir v. Turkey (no. 51770/07, §§ 17-35, 16 October 2012), it has examined a similar complaint and declared it inadmissible for non ‑ exhaustion of domestic remedies as the applicant 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.

21 . In the instant case, the Court observes that the applicant ’ s detention on remand ended on 14 December 2010 by the Diyarbakır Assize Court ’ s judgment convicting him which became final on 17 March 2011 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.

22 . 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. ), 11929/12, 28 January 2014). The Court takes the view that the exception should be applied in the present case as well.

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

For these reasons, the Court, unanimously,

Decides to strike the application out of its list of cases pursuant to Article 39 of the Convention in so far as it relates to the complaints under Article 6 §§ 1 and 3 of the Convention ;

Declares the remainder of the application inadmissible.

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

Hasan Bakırcı Julia Laffranque Deputy Registrar President