SECOND SECTION

DECISION

Application no. 30978/11 Ali DAMAR against Turkey

The European Court of Human Rights (Second Section), sitting on 3 July 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 15 December 2010,

Having regard to the decision of 6 September 2013,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Ali Damar , is a Turkish national, who was born in 1982 and lives in Mardin . He was represented before the Court by Ms S. Ürper Gökçe , a lawyer practicing in Şırnak .

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 summarized as follows.

4. On 6 March 2008 the applicant was taken into custody.

5. On 7 March 2008 the applicant was placed in detention on remand.

6. On 26 March 2008 and 5 May 2010, respectively, the Diyarbak ı r public prosecutor filed a bill of indictment with the Diyarbak ı r Assize Court charging the applicant with being a member of a terrorist organization and disseminating propaganda in favour of that organization. Subsequently both cases were joined.

7. On 3 March 2011 the Diyarbak ı r Assize Court convicted the applicant and sentenced him to six years and three months ’ imprisonment for committing crimes on behalf of a terrorist organization. For the remaining accusations brought against him the court decided to suspend the pronouncement of the judgments. On the same day the court ordered the applicant ’ s release from detention.

8. On 25 April 2013 the Court of Cassation quashed the judgment. The case was accordingly remitted to the Diyarbak ı r Assize Court.

9. According to the latest information in the case file, the criminal proceedings against the applicant were still pending.

B. Relevant domestic law and practice

10. 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).

COMPLAINT

11. The applicant complained under Article 5 § 3 of the Convention about the length of his detention on remand.

THE LAW

12. The applicant complained under Article 5 § 3 of the Convention about length of his detention on remand.

13. 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”).

14. 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).

15. 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.

16. In the instant case, the Court notes that the applicant ’ s detention ended on 3 March 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.

17. 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. ), n o. 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.

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

For these reasons, the Court, unanimously,

Declares the remainder of the application inadmissible.

Done in English and notified in writing on 6 September 2018 .

Hasan Bakırcı Paul Lemmens              Deputy Registrar President