SECOND SECTION

DECISION

Application no . 53744/08 Mahir B Ä° L Ä° M against Turkey

The European Court of Human Rights (Second Section), sitting on 5 December 2017 as a Committee composed of:

Julia Laffranque , President, Paul Lemmens , Valeriu Griţco , judges, and Hasan Bakırcı, Deputy Section Registrar ,

Having regard to the above application lodged on 25 October 2008,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Mahir Bilim , is a Turkish national, who was born in 1990 and lives in Mersin. He was represented before the Court by Mr D. YiÄŸit , a lawyer practising in Mersin.

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

The circumstances of the case

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

4. At the time of the events, the applicant was a detainee at the Mersin E Type Prison within the context of another investigation concerning theft.

5. On 13 July 2006 the applicant was placed in detention on remand on suspicion of being involved in the murder of a detainee.

6. On 28 November 2006 the Mersin public prosecutor filed a bill of indictment against the applicant and the criminal proceedings commenced before the Mersin Assize Court.

7. Between 13 February 2007 and 4 November 2008, the Mersin Assize Court held 28 hearings and examined the applicant ’ s continued detention at the end of each hearing, either of its own motion or upon the applicant ’ s requests. On each occasion, the court ordered the applicant ’ s continued detention, taking into account the nature of the offence, the fact that the evidences had not been collected yet, and severity of the penalty for the offence in question.

8. On 4 November 2008 the Mersin Assize Court ordered the applicant ’ s release pending trial.

9. On 19 December 2008 the Mersin Assize Court convicted the applicant and sentenced him to five years and four months ’ imprisonment.

10. On 26 October 2010 the Court of Cassation upheld the judgment.

COMPLAINTS

11. The applicant complained about the length of his pre-trial detention and the fact that the domestic courts used stereotyped reasoning when rejecting his release requests. In this connection, the applicant relied on Article 5 §§ 1, 3 and 4 and Article 13 of the Convention.

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

THE LAW

A. Complaint regarding the length of the applicant ’ s detention and the stereotyped reasoning used by domestic courts

13. The applicant complained that the length of his pre-trial detention had been excessive and that in dismissing his requests for release the courts had used identical, stereotyped reasoning. In this connection, the applicant relied on Article 5 §§ 1, 3 and 4 and Article 13 of the Convention.

14. The Court considers that in the circumstances of the present case, it is more appropriate to deal with the applicant ’ s complaints under solely Article 5 § 3 of the Convention.

15. The Government asked the Court to dismiss this part of the application for non-exhaustion of domestic remedies, referring to the possibility of claiming compensation for unlawful detention under Article 141 of the Code on Criminal Procedure (“CCP”).

16. The Court observes that the domestic remedy in application of 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), where it was held that that remedy had to be exhausted by the applicants whose convictions became final.

17. In the instant case, the Court notes that the applicant ’ s conviction became final on 26 October 2010. From that date onwards the applicant was entitled to seek compensation under Article 141 of the CCP (see Demir , cited above, § 35), but 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 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. ), 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 part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

B. Complaint regarding Article 5 § 5 of the Convention

20. The applicant complained under Article 5 § 5 of the Convention that he had no right to compensation under domestic law in respect of his complaints under Article 5 of the Convention.

21. 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). As noted above (see paragraphs 16-18), the Court observes that, assuming that there has been a violation of his rights under Article 5, § 1, 2, 3 or 4, the applicant would have the right to claim compensation under Article 141 of the CCP, which provides an effective remedy to the applicant within the meaning of Article 5 § 5 of the Convention. Accordingly, 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.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 11 January 2018 .

Hasan Bakırcı Julia Laffranque              Deputy Registrar President