SECOND SECTION

DECISION

Application no. 61000/08 Uğur ÖZÇELIK against Turkey

The European Court of Human Rights (Second Section), sitting on 29 May 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 6 December 2008,

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 Uğur Özçelik , is a Turkish national, who was born in 1971 and lives in Istanbul. He was represented by his wife Ms F. B. Özçelik before the Court.

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 summaris ed as follows.

4. On 29 November 2005 the applicant was taken into custody.

5. On 2 December 2005 he was placed in detention on remand.

6. On unspecified date the public prosecutor filed an indictment with the Bakırköy Assize Court charging the applicant with forgery and fraud.

7. On 30 July 2008 in a hearing held in the presence of the applicant, the Bakırköy Assize Court convicted the applicant as charged and sentenced him to a total of six years and four months ’ imprisonment and a fine.

8. The applicant failed to file an appeal within the prescribed time-limit.

B. Relevant domestic law and practice

9. A description of the relevant domestic law and practice can be found in Demir v. Turkey (( dec. ), no. 51770/07, §§ 29-33, 16 October 2012).

COMPLAINTS

10. The applicant complained under Article 5 § 3 of the Convention that the length of his pre-trial detention had been excessive.

11. The applicant further complained under Article 5 § 4 of the Convention that there had been no effective remedy provided by the national legal system whereby he could challenge his continued pre-trial detention.

12. The applicant alleged under Article 6 of the Convention that the criminal proceedings against him had not been concluded within a reasonable time and that the domestic courts had erred in evaluation and interpretation of domestic law.

13. Lastly, the applicant complained under Article 7 of the Convention that the new criminal code had been applied retroactively against him.

THE LAW

A. Article 5 § 3 of the Convention

14. The Government asked the Court to reject the application 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”).

15. The Court observes that the domestic remedy provided by Article 141 of the CCP with regard to length of detention on remand was examined in the case of Demir v. Turkey (( dec. ), no. 51770/07, §§ 17-35, 16 October 2012), and it was held that that remedy had to be exhausted by the applicants whose convictions became final.

16. In the instant case, the Court notes that the applicant ’ s detention on remand ended on 30 July 2008 and the Bakırköy Assize Court ’ s decision convicting him became final (see paragraph 10 above). From that date onwards the applicant was entitled to seek compensation under Article 141 of the CCP (see Demir , cited above, § 35), but 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. ), 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.

18. 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. Remaining Complaints

19. As regards the remaining complaints, the Court holds that in the light of the material in its possession and in so far as the matters complained of are within its competence, these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

20. 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 21 June 2018 .

Hasan Bakırcı Paul Lemmens              Deputy Registrar President