SECOND SECTION

DECISION

Application no. 45169/10 Mahfuz ARSLAN against Turkey

The European Court of Human Rights (Second Section), sitting on 10 April 2018 as a Committee composed of:

Ledi Bianku , President, Nebojša Vučinić , Jon Fridrik Kjølbro , judges, and Hasan Bakırcı, Deputy Section Registrar ,

Having regard to the above application lodged on 15 June 2010,

Having regard to the decision of 9 September 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

A. The circumstances of the case

1. The applicant, Mr Mahfuz Arslan , is a Turkish national, who was born in 1981 and lives in Diyarbakır. He is represented before the Court by Mr M. Beştaş and Ms M. Danış Beştaş , lawyers practising in Diyarbakır.

2. The Turkish Government (“the Government”) are represented by their Agent.

3. The facts of the case, as submitted by the parties, may be summarised as follows.

4 . On 9 September 2009 the applicant was taken into police custody. On 10 September 2009 he was brought before the investigating judge at the Batman Magistrates ’ Court, who ordered his pre-trial detention on suspicion of membership of an illegal organisation.

5. On 25 September 2009 criminal proceedings were brought against the applicant by the Diyarbakır Public Prosecutor.

6. On 4 March 2010 the Diyarbakır Assize Court found the applicant guilty as charged and sentenced him to a total of one year and eight months ’ imprisonment.

7. On 28 March 2013 the Court of Cassatio n quashed the judgment of first– instance court. The case was accordingly remitted before the first ‑ instance court.

8. On 9 July 2013 the Diyarbakır Assize Court decided to suspend the proceedings against the applicant. That decision became final on 3 October 2013.

B. Relevant domestic law and practice

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

COMPLAINT

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

THE LAW

11. 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”).

12. The Court observes that the dome stic remedy provided by Article 141 of the CCP with regard to length of detention on remand was examined in the case of Åžefik Demir v. Turkey (( de c. ), 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.

13. In the instant case, the Court notes that the applicant ’ s detention on remand ended on 4 March 2010 and the Diyarbakır Assize Court ’ s decision suspending the proceedings against him became final on 3 October 2013 (see paragraph 10 above). From that date onwards the applicant was entitled to seek compensation under Article 141 of the CCP (see Şefik Demir , cited above, § 35), but he failed to do so.

14. 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.

15. 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.

For these reasons, the Court, unanimously,

Declares the remainder of the application inadmissible.

Done in English and notified in writing on 17 May 2018 .

Hasan Bakırcı Ledi Bianku              Deputy Registrar President