SECOND SECTION

DECISION

Application no. 59845/10 Hasan Hüseyin ERBAŞ against Turkey

The European Court of Human Rights (Second Section), sitting on 4 September 2018 as a Committee composed of:

Paul Lemmens, President, Valeriu Griţco , Stéphanie Mourou-Vikström , judges, and Hasan Bakırcı, Deputy Section Registrar ,

Having regard to the above application lodged on 20 September 2010,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Hasan Hüseyin Erbaş , is a Turkish national, who was born in 1975 and lives in Istanbul. He was represented before the Court by Mr N. Sansur , a lawyer practising in Istanbul.

2. The Turkish Government (“the Government”) were 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. On 25 March 2005 the applicant was taken into custody.

5. On 29 March 2005 the applicant was brought before a judge at the Ä°stanbul Assize Court who placed him in detention on remand.

6. On 21 April 2005 the public prosecutor filed a bill of indictment with the Ä°stanbul State Security Court.

7. On 2 May 2005 the trial court held a preparatory hearing and ordered the continuation of the applicant ’ s detention.

8. Following the abolition of the State Security Courts, the case against the applicant was transferred to the Istanbul Assize Court.

9. On 10 March 2010 the applicant lodged an objection against the decision of 5 March 2010 which was delivered ex officio regarding his continued detention.

10. In the hearing held on 16 March 2010, in which the applicant and his lawyer were present, the trial court ordered the continuation of the applicant ’ s detention.

11. On 5 April 2010 the applicant once again filed an objection against the decision of 5 March 2010, alleging that the court had not rendered its decision on his objection of 10 March 2010. On 14 April 2010 the trial court dismissed this objection, stating that it had already taken into consideration his objection and dismissed it at the hearing on 16 March 2010, and once again ordered the continuation of his detention.

12. On 18 May 2010 the applicant filed an objection against the ex officio decision of 14 May 2010 on the continuation of his detention. On 25 May 2010 the appeal court dismissed the objection without holding an oral hearing.

13. On 14 January 2011 the applicant was released from detention on remand.

14. According to the latest information in the case file, the criminal proceedings against the applicant were still pending as of July 2011.

B. Relevant domestic law and practice

15. A description of the relevant domestic law and practice can be found in A.Ş. v. Turkey (no. 58271/10, § 34-35, 13 September 2016), Altınok v. Turkey (no. 31610/08, §§ 28-32, 29 November 2011) and Turgut and Others v. Turkey (( dec. ), no. 4860/09, §§ 19-26, 26 March 2013).

COMPLAINTS

16. 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 the courts had used identical, stereotyped reasoning when deciding on the continuation of his detention. He further alleged under Article 6 § 2 that his right to be presumed innocent was violated because he had been detained on remand for an excessive length of time.

17. Under Article 5 § 4 of the Convention, the applicant alleged that there had been no effective remedy whereby he could effectively challenge his detention on remand. In this connection, he also relied on Article 13 of the Convention.

18. The applicant also alleged under Article 6 of the Convention that the length of the criminal proceedings did not comply with the “reasonable time” requirement.

THE LAW

A. Article 5 § 3 of the Convention

19. 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 the courts had used identical, stereotyped reasoning when deciding on the continuation of his detention. He further complained under Article 6 § 2 of the Convention that his right to be presumed innocent had been violated because he had been detained for an excessive length of time.

20. The Court considers that it is more appropriate to examine the applicant ’ s complaints from the standpoint of Article 5 § 3 alone as they mainly concern the length of the applicant ’ s pre-trial detention (see Can v. Turkey ( dec. ), no. 6644/08, 14 April 2009).

21. 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 request compensation pursuant to Article 141 of the Code on Criminal Procedure (“CCP”).

22. 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, §§ 17-5, 16 October 2012).

23. 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.

24. In the instant case, the Court notes that the applicant ’ s detention ended on 14 January 2011 with his release from detention on remand, yet there is no information whether the proceedings against him are still pending or have become final. However, the Court observes that the applicant was entitled, in both situations, to seek compensation under Article 141 § 1 (d) of the CCP. However, he failed to do so.

25. 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.

26. 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.

B. Article 5 § 4 of the Convention

27. Relying on Article 5 § 4 of the Convention, the applicant complained about not being able to appear before the court when his detention on remand was reviewed. The applicant also complained under Article 13 of the Convention about the lack of an effective remedy provided by the domestic legal system, whereby he could effectively challenge his continued pre-trial detention.

28. The Court considers that the applicant ’ s complaint under Article 13 should be examined under Article 5 § 4 of the Convention, being the lex specialis in the matter.

29. The Government contested that argument.

30. In the present case, the applicant was placed in detention on remand on 29 March 2005. At the end of the hearing held on 16 March 2010, the Istanbul Assize Court decided on the continuation of the applicant ’ s detention. Both the applicant and his lawyer were present in that hearing. The applicant filed an objection against this decision on 5 April 2010.

31. On 14 May 2010 the trial court prolonged the applicant ’ s pre ‑ trial detention ex officio . The applicant subsequently filed an objection against this decision.

32 . The Court observes that these objections were dismissed respectively on 14 April 2010 and 25 May 2010 by the courts, without holding an oral hearing. Nevertheless, the applicant had appeared before the trial court 29 days and 70 days, respectively, before his objections were examined by the appeal court. 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.

33. The Court thus concludes that the lack of an oral hearing during the proceedings did not violate Article 5 § 4 (see Altınok v. Turkey , no. 31610/08, §§ 54-55, 29 November 2011; Adem Serkan Gündoğdu v. Turkey , no. 67696/11, §§ 35-48, 16 January 2018).

34. 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.

C. Article 6 § 1 of the Convention

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

36. 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 this part of the application should be declared inadmissible for non-exhaustion of domestic remedies as the applicant should apply to the Compensation Commission.

37. 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.

38. 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.

39. 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).

40. 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.

D. Remaining Complaint

41. The applicant raised further complaint under Article 14 of the Convention.

42. In the light of the material in its possession and in so far as the matters complained of are within its competence, the Court finds that these complaint does not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with the Article 35 § 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 27 September 2018 .

Hasan Bakırcı Paul Lemmens Deputy Registrar President