SECOND SECTION

DECISION

Application no. 58881/11 Abdurrahim DEMIR 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 1 July 2011,

Having regard to the decision of 7 June 2013,

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 Abdurrahim Demir , is a Turkish national, who was born in 1963 and lives in İ stanbul . He was represented before the Court by Ms H. Çekiç Gündüz , a lawyer practising in İ stanbul .

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 12 October 1995 the applicant was taken into custody.

5. On 25 October 1995 the judge at the İ stanbul State Security Court ordered the applicant ’ s detention on remand.

6. On 29 November 1995 the public prosecutor filed an indictment with the Ä° stanbul State Security Court, charging the applicant with membership of a terrorist organisation.

7. On 27 December 2007 the trial court found the applicant guilty as charged and sentenced him to aggravated life imprisonment.

8. On 10 November 2008 the Court of Cassation quashed the judgment and remitted the case to the first-instance court.

9. On 4 January 2011 the applicant was released pending trial.

10. On 27 December 2012 the court once again convicted the applicant and sentenced him to aggravated life imprisonment.

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

B. Relevant domestic law and practice

12. A description of the relevant domestic law and practice can be found in A.Ş v. Turkey (( dec. ), no. 58271/10, §§ 34-35, 13 September 2016), and Şefik Demir v. Turkey (( dec. ), no. 51770/07, §§ 29-33, 16 October 2012).

COMPLAINTS

13. The applicant complained under Article 5 § 3 of the Convention that the length of his pre-trial detention had been excessive and that his detention was prolonged on grounds which failed to provide any relevant and sufficient reasons justifying the continuation of his detention. The applicant also 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.

14. 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.

THE LAW

A. As regards the applicant ’ s complaint under Article 5 § 3 of the Convention

15. The applicant complained under Article 5 § 3 of the Convention that the length of his pre-trial detention had been excessive and that his detention was prolonged on grounds which failed to provide any relevant and sufficient reasons justifying 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.

16. 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).

17. 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”).

18. 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).

19. In the case of Şefik Demir (citied 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.

20. In the instant case, the Court notes that the applicant ’ s detention ended on 4 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.

21. 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.

22. 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. As regards the applicant ’ s complaint under Article 5 § 5 of the Convention

23. 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.

24. 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 Septemb er 1990, § 38, Series A no. 185- A). As noted above (see paragraphs 16-18), the Court observes that, even assuming that there has been a violation of his rights under Article 5 § 1, 2, 3 or 4, the applicant would have the right to claim compensation under Article 141 of the CCP, which provides an effective remedy to the applicant within the meaning of Article 5 § 5 the Convention.

25. Accordingly, 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 remainder of the application inadmissible.

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

Hasan Bakırcı Paul Lemmens              Deputy Registrar President