SECOND SECTION

DECISION

Application no. 3804/09 Mehmet Emin TOLUN 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 13 January 2009,

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 Mehmet Emin Tolun, is a Turkish national, who was born in 1985 and lives in I stanbul . He was represented before the Court by Mr M. Dikan, 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 6 November 2004 the applicant was arrested and taken into custody on suspicion of theft and murder. O n 9 November 2004 the applicant was placed in detention on remand.

5. On 10 November 2004 the public prosecutor filed a bill of indictment with the Kadıköy Assize Court.

6. On 28 March 2006 the Kadıköy Assize Court convicted the applicant and sentenced him to eleven years and eight months ’ imprisonment. The court also ordered the continuation of the applicant ’ s detention.

7. On 6 July 2007 the Court of Cassation quashed the judgment of the first-instance court. The case was accordingly remitted before the first ‑ instance court.

8. At each hearing, the trial court examined the applicant ’ s continued detention, and having regard to the nature of the offence, the risk of absconding and the severity of the envisaged penalty, it ordered the continuation of the applicant ’ s detention.

9. At the hearing held on 23 December 2008, to which both the applicant and his lawyer attended, the court ordered the continuation of the applicant ’ s detention. Subsequently, the applicant filed an objection against this decision and on 26 December 2008 the 2 nd Chamber of Kadıköy Assize Court dismissed the applicant ’ s objection having regard to the content of the case file, the state of evidence, the risk of interfering with evidence and of absconding.

10. On 29 January 2009 the Kadıköy Assize Court once again convicted the applicant and sentenced him to eleven years and eight months ’ imprisonment. The court also ordered the applicant ’ s release pending trial.

11. The case file does not contain any further information about the outcome of the appeal proceedings before the Court of Cassation.

B. Relevant domestic law and practice

12. A description of the relevant domestic law and practice can be found in Turgut and Others v. Turkey ((dec.), no. 4860/09, §§ 19-26, 26 March 2013).

COMPLAINTS

13. The applicant complained under Article 5 § 4 of the Convention that he did not have an effective remedy to challenge the lawfulness of his detention. He maintained that his release request was dismissed without proper reasoning by the domestic courts, which used stereotyped wording in dismissing his request.

14. The applicant further maintained under Article 5 § 5 that he had no right to compensation under domestic law in respect of his compl aint under Article 5 of the Convention.

15. Finally, t he applicant alleged under Article 6 § 1 of the Convention that the criminal proceedings brought against him had not been concluded within a reasonable time.

THE LAW

A. As regards the applicant ’ s complaint under Article 5 § 4 of the Convention

16. The applicant complained under Article 5 § 4 of the Convention that he did not have an effective remedy to challenge the lawfulness of his detention. He maintained that his release request was dismissed without proper reasoning by the domestic courts, which used stereotyped wording in dismissing his request.

17. The Government contested that argument.

18. The Court reiterates that arrested or detained persons 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. This means that the competent court has to examine “not only compliance with the procedural requirements set out in [domestic law] but also the reasonableness of the suspicion grounding the arrest and the legitimacy of the purpose pursued by the arrest and the ensuing detention” (see the Brogan and Others v. the United Kingdom , 29 November 1988, § 65, Series A no. 145-B, and Nikolova v. Bulgaria [GC], no. 31195/96, § 58, ECHR 1999 ‑ II).

19. While Article 5 § 4 of the Convention does not impose an obligation on a judge examining an appeal against detention to address every argument contained in the appellant ’ s submissions, its guarantees would be deprived of their substance if the judge, relying on domestic law and practice, could treat as irrelevant, or disregard, particular facts invoked by the detainee which could cast doubt on the existence of the conditions essential for the “lawfulness”, in the sense of the Convention, of the deprivation of liberty ( Nikolova, cited above, § 61 ).

20. In the present case, at the end of the hearing held on 23 December 2008, the Kadıköy Assize Court decided on the continuation of the applicant ’ s detention. In his objection of 24 December 2008 against the court ’ s aforementioned decision, the applicant argued that there had been no risk of his absconding and of interferin g with evidence. However, on 26 December 2008, after having examined this objection, the Kadıköy Assize Court dismissed it taking into consideration the state of evidence and the risk of interfering with evidence and of absconding.

21. The applicant ’ s submissions in the above-mentioned objection did not contain any arguments requiring the Assize Court to provide a different reasoning in its examination of the lawfulness of his detention. The Court is thus satisfied that the scope of the review of the lawfulness of the applicant ’ s detention carried out by the domestic court complied with the requirements of Article 5 § 4 of the Convention.

22. In view of the above, 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.

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 not been provided with effective domestic remedies with regard to his complaint under Article 5 § 4 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 September 1990, § 38, Series A no. 185 ‑ A). The right to compensation set forth in paragraph 5 therefore presupposes that a violation of one of the preceding paragraphs of Article 5 has been established, either by a domestic authority or by the Court.

25. Accordingly, the Court cannot consider an applicant ’ s claim based exclusively on Article 5 § 5 unless a breach of Article 5 §§ 1 to 4 has been established directly or in substance, either by the domestic authorities or by the Court itself. It follows that as the applicant ’ s case does not disclose such a breach, his claim under Article 5 § 5 should be rejected for being incompatible ratione materiae with the provisions of the Convention.

C. As regards the applicant ’ s complaint under Article 6 § 1 of the Convention

26. 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.

27. The Government noted that pursuant to Law no. 6384 a Compensation Commission had been established to deal with applications concerning the length of proceedings and the non-execution of judgments. They maintained that the applicant had to apply to the Compensation Commission to exhaust the domestic remedies.

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

29. The Court notes that in its decision in the case of Ümmühan Kaplan (cited above, § 77) it stressed that it could nevertheless examine applications of this type which had already been communicated to the Government.

30. 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).

31. It therefore concludes that this part of the application must be also rejected under Article 35 §§ 1 and 4 of the Convention for non ‑ exhaustion of domestic remedies.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

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

Hasan Bakırcı Paul Lemmens              Deputy Registrar President