SECOND SECTION

DECISION

Application no . 33300/10 Ersan NAZLIER 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 13 May 2010,

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 Ersan Nazlıer , is a Turkish national, who was born in 1980 and is currently serving a prison sentence in Diyarbakır Prison. He was represented before the Court by Mr M. Beştaş , a lawyer practising in Diyarbakır.

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

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

4. On 7 June 2006 the applicant was arrested in Diyarbakır on suspicion of membership of a terrorist organisation .

5. Following his interrogation by the public prosecutor and the Diyarbakır Assize Court, the applicant was placed in pre-trial detention.

6. On 20 June 2006 the Diyarbakır Public Prosecutor filed a bill of indictment with the Diyarbakır Assize Court, accusing the applicant with membership of a terrorist organisation and carrying false identity documents.

7. On 28 June 2006 the Diyarbakır Assize Court admitted the indictment and ordered the continuation of the applicant ’ s pre-trial detention.

8. On 24 November 2006 the Diyarbakır Public Prosecutor filed a second indictment with the Diyarbakır Assize Court, charging the applicant under Article 302 of the Criminal Code with attempting to undermine the constitutional order. In particular, the applicant was accused of killing a soldier. Both cases were joined.

9. Between 28 June 2006 and 12 March 2013 the Diyarbakır Assize Court held forty- six hearings. At the end of each hearing, the court reviewed the applicant ’ s pre-trial detention. Taking into account the seriousness of the offence with which the applicant had been charged and the state of the evidence, it decided to keep him in detention. The applicant and his lawyer were present at each hearing.

10. On 12 March 2013 the Diyarbakır Assize Court found the applicant guilty as charged and sentenced him to life imprisonment. The court also ordered the applicant ’ s continued detention. The applicant appealed.

11. O n 18 March 2014 the judgment of the first-instance court was upheld by the Court of Cassation.

COMPLAINTS

12. The applicant complained under Article 5 § 3 of the Convention that the length of his pre-trial detention had been excessive. He also submitted that the courts had used identical, stereotyped reasoning when deciding on the continuation of his detention. In that connection, he also relied on Article s 3, 6 § 2, 7 and 8 of the Convention, arguing that the excessive length of his pre-trial detention amounted to ill-treatment, breached his right to presumption of innocence and his right to private life. The applicant further claimed that the length of his detention on remand had turned into a punishment without a conviction.

13. The applicant alleged under Article 5 § 4 and Article 13 of the Convention that the domestic legal system had not provided any effective remedy whereby he could effectively challenge his continued pre-trial detention.

14. The applicant contended under Article 6 § 1 of the Convention that the criminal proceedings against him had not been completed within a reasonable time.

15. Under Article 6 of the Convention, the applicant further stated that the principle of equality of arms had been breached as the indictment of the public prosecutor had been admitted by the trial court without first consulting the applicant or his lawyer.

16. Lastly, relying on Article 14 of the Convention, the applicant alleged that he had been subjected to discrimination because of the nature of the offence with which he was charged.

THE LAW

A. Article 5 § 3 of the Convention

17. The applicant complained under Articles 3, 5 § 3 , 6 § 2, 7 and 8 of the Convention about the length of his detention on remand.

18. The Court considers that in the circumstances of the present application it is more appropriate to deal with the applicant ’ s complaints only under Article 5 § 3 of the Convention.

19. The Government maintained that the applicant had not exhausted domestic remedies. They pointed out that as the first-instance court ’ s judgment against him had become final, the applicant should have sought compensation before the domestic courts pursuant to Article 141 of the Code on Criminal Procedure.

20. The Court recalls that in its decision in the case of Şefik Demir v. Turkey (no . 51770/07, §§ 17-35, 16 October 2012), it declared the applicant ’ s complaint under Article 5 § 3 of the Convention inadmissible for non-exhaustion of domestic remedies.

21. In the instant case, the Court observes that the applicant ’ s detention on remand ended on 12 March 2013 with his conviction by the Diyarbakır Assize Court. On 18 March 2014 this decision became final with the Court of Cassation ’ s decision (see paragraph 11 above). From that date onwards, the applicant could have sought compensation pursuant to Article 141 of the Code of Criminal Procedure (see Şefik Demir, cited above , § 35) , but he failed to do so.

22. 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.

23. As a result, taking into account the Government ’ s preliminary 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. Article 6 § 1 of the Convention

24. The applicant complained that the length of the criminal proceedings against him did not comply with the “reasonable time” requirement of Article 6 § 1 of the Convention.

25. The Government noted that pursuant to Law no. 6384 a new Compensation Commission had been established to deal with applications concerning the length of proceedings and the non ‑ execution of judgments. They maintained that the applicant had not exhausted domestic remedies, as he had not made any application to that Compensation Commission: this ground had also been recognised by the Court in its decision in the case of Turgut and Others (( dec. ), no. 4860/09, 26 March 2013).

26. The Court observes that, as pointed out by the Government, a domestic remedy was established in Turkey 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 (cited above), the Court declared a new application inadmissible on the ground that the applicants had failed to exhaust domestic remedies once the new domestic remedy had come into being. 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.

27. The Court notes that in its decision in the case of Ümmühan Kaplan (cited above, § 77) it stressed that it could nevertheless pursue the examination of such complaints under the normal procedure in cases which had been communicated to the Government prior to the entry into force of the new remedy.

28. This being so, taking into account the Government ’ s preliminary objection with regard to the applicant ’ s failure to make use of the new domestic remedy established by Law no. 6384, the Court reiterates its conclusion the case of Turgut and Others . It therefore concludes the complaint of the excessive length of the criminal proceedings must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies (see Rifat Demir v. Turkey , no. 24267/07, § 35, 4 June 2013, and Yiğitdoğan v. Turkey (no. 2), no. 72174/10, § 59, 3 June 2014).

C. Other complaints

29. The applicant submitted under Articles 5 § 4 and 13 of the Convention that there had been no effective remedy whereby he could effectively challenge his pre-trial detention . The applicant also complained under Article 6 § 1 of the Convention that the principle of equality of arms had been breached as the trial court had admitted the indictment without first consulting the defence . In addition, relying on Article 14 of the Convention the applicant alleged that he had received unfavorable treatment because of the offence with which he had been charged.

30. In the light of the material in its possession and in so far as the matters complained of are within its competence, the Court finds that these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. 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 11 January 2018 .

Hasan Bakırcı Julia Laffranque              Deputy Registrar President