SECOND SECTION

DECISION

Application no. 40695/10 Ali NERG Ä° Z against Turkey

The European Court of Human Rights (Second Section), sitting on 19 June 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 25 May 2010,

Having regard to the decision of 26 August 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 Ali Nergiz , is a Turkish national, who was born in 1982 and was detained in Diyarbak ı r Prison at the time of the application. He was represented before the Court by Ms M. Danış Be ş ta ş and Mr M. Be ş ta ş , lawyers practising in Diyarbakır.

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 11 October 2008 the applicant was arrested and taken into custody on suspicion of being a member of a terrorist organisation .

5. On 15 October 2008 the applicant was brought before a judge at the Diyarbak ı r Assize Court and he was placed in detention on remand.

6. On 16 December 2008 the Diyarbak ı r public prosecutor filed a bill of indictment with the Diyarbak ı r Assize Court, accusing the applicant of, inter alia , attempting to undermine the unity and integrity of the State, and aiding and abetting a terrorist organisation .

7. On 12 November 2013 the Diyarbak ı r Assize Court convicted the applicant as charged and ordered the continuation of his detention.

8. 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

9. A description of the relevant domestic law and practice can be found in Koçintar v. Turkey (( dec. ), no. 77429/12, §§ 9-26, 39, 1 July 2014).

COMPLAINT

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

THE LAW

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

12. The Government maintained that the applicant had not exhausted domestic remedies, as he was still in detention on remand on 23 September 2012 and should have applied to the Constitutional Court.

13. Having examined the main aspects of the new remedy before the Turkish Constitutional Court, the Court found that the Turkish Parliament had entrusted that court with powers that enabled it to provide, in principle, direct and speedy redress for violations of the rights and freedoms protected by the Convention, in respect of all decisions that had become final after 23 September 2012, and declared it as a remedy to be used (see Hasan Uzun v. Turkey , ( dec. ), no. 10755/13, §§ 68-71, 30 April 2013).

14. The Court further notes that the Constitutional Court ’ s jurisdiction ratione temporis had begun on 23 September 2012 and it was clear from the judgments already delivered that it accepted an extension of its jurisdiction ratione temporis to situations involving a continuing violation which had commenced before the introduction of the right of individual application and had carried on after that date.

15. In the present case the applicant ’ s pre-trial detention commenced on 15 October 2008 and ended on 12 November 2013 when he was convicted. Accordingly, the applicant ’ s detention, including the period before 23 September 2012, fell within the Constitutional Court ’ s temporal jurisdiction (see Koçintar v. Turkey ( dec. ), no 77429/12, §§ 15-26, 39, 1 July 2014, and Levent Bektaş v. Turkey , no. 70026/10, §§ 40-42, 16 June 2015).

16. As a result, taking into account the Government ’ s preliminary 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 12 July 2018 .

Hasan Bakırcı Paul Lemmens              Deputy Registrar President