SECOND SECTION

DECISION

Application no. 63988/09 SavaÅŸ KARABALI 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 Registra r ,

Having regard to the above application lodged on 20 November 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 Savaş Karabali , is a Turkish national, who was born in 1972 and lives in Antalya. He was represented before the Court by Mr S. Gül , a lawyer practising in Antalya.

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 29 June 2007 the applicant was taken into custody.

5. On 3 July 2007 the Ankara Magistrates ’ Court ordered the applicant ’ s detention on remand.

6. On 6 September 2007 the public prosecutor filed an indictment with the Ankara Assize Court charging the applicant with forming an illegal organisation with an intention to commit crimes.

7. On 15 July 2010 the Ankara Assize Court ordered the applicant ’ s release pending trial.

8. According to the latest information in the case file, the criminal proceedings against the applicant were still pending as of January 2012.

B. Relevant domestic law and practice

9. 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) and Turgut and Others v. Turkey (( dec. ), no. 4860/09, §§ 19-26, 26 March 2013).

COMPLAINTS

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

11. The applicant also alleged under Article 6 of the Convention that the length of the criminal proceedings did not comply with the “reasonable time” requirement. Under the same Article, he further complained that the criminal proceedings against him were unfair.

12. Lastly, the applicant complained under Article 8 of the Convention that his lengthy detention had a negative effect on his family life and on his psychological well-being.

THE LAW

A. Article 5 § 3 of the Convention

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

14. 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”).

15. The Court observes that the domestic remedy in application of Article 141 § 1 (d) of the CCP with regard to length of detention on rema nd was examined in the cases of Demir v. Turkey , (( dec. ), no. 51770/07, §§ 17 ‑ 35, 16 October 2012 and A.Åž. v. Turkey (no. 58271/10, § 85-95, 13 September 2016 ).

16. In the case of 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.

17. In the instant case, the Court notes that the applicant ’ s detention ended on 15 July 2010 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.

18. 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 h as previously departed from the general rule in cases concerning the above-mentioned remedy in respect of the length of detention, which became applicable after the final decision o n the criminal proceedings (see, 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.

19. 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. Other complaints

1. Length of proceedings

20. The applicant complained about the length of the criminal proceedings against him. He relied on Article 6 of the Convention.

21. The Court observes that a domestic remedy has been established in Turkey by Law no. 6384, 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, §§ 47 ‑ 58, 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 domestic 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.

22. In this context, the Court observes that the applicant should make use of the new domestic remedy established by Law no. 6384. Thus, the Court reiterates its conclusion in the case of Turgut and Others (cited above). It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non - exhaustion of domestic remedies.

2. Alleged unfairness of proceedings

23. The applicant complained under Article 6 of the Convention about the alleged unfairness of the criminal proceedings and maintained that the trial court could not be considered as an independent and impartial.

24. The Court observes that the criminal proceedings against the applicant were still pending before the domestic courts and the parties did not inform the Court about the outcome of those proceedings. Therefore, the applicant ’ s complaints under Article 6 concerning the alleged unfairness of the proceedings are therefore premature and must be rejected for non-exhaustion of domestic remedies pursuant to Article 35 §§ 1 and 4 of the Convention.

3 Remaining Complaints

25. As regards the applicant ’ s remaining complaints raised under Article 8 of the Convention, 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.

26. 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