SECOND SECTION

DECISION

Application no . 71750/11 Ali Hıdır POLAT against Turkey

The European Court of Human Rights (Second Section), sitting on 27 June 2017 as a Committee composed of:

Nebojša Vučinić , President, Paul Lemmens, Stéphanie Mourou-Vikström , judges, and Hasan Bakırcı, Deputy Section Registrar ,

Having regard to the above application lodged on 4 November 2011,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

PROCEDURE

1. The case originated in an application (no. 71750/11) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Ali Hıdır POLAT (“the applicant”), on 4 November 2011.

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

3. On 3 January 2013 the complaint concerning the length of the applicant ’ s pre-trial detention was communicated to the Government.

4. The Government objected to the examination of the application by a Committee. After having considered the Government ’ s objection, the Court rejects it.

THE FACTS

5. The applicant, Mr Ali Hıdır Polat , was born in 1960 and lives in Bursa.

A. The circumstances of the case

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

7. On 8 September 2006 the applicant was arrested on suspicion of being one of the leaders of the MLKP, an illegal organization.

8. On 12 September 2006 the applicant was placed in detention on remand by the Istanbul Assize Court.

9. On 17 May 2007 the Istanbul public prosecutor filed his indictment with the Istanbul Assize Court.

10. On 26 October 2007 the first hearing was held before the Istanbul Assize Court.

11. Between 26 October 2007 and 17 May 2011 the court held twelve hearings and ordered the applicant ’ s continued detention on remand.

12. On 17 May 2011 the applicant was released pending trial.

13. At the time of the application, the proceedings were pending before the first-instance court.

B. Relevant domestic law and practice

14. 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).

COMPLAINT

15. The applicant complained under Article 5 § 3 the Convention that the length of his pre-trial detention had been excessive. He maintained that his detention had been unnecessary and that the reasons in the decisions were stereotype.

THE LAW

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

17. The Government rejected the allegation, submitting that the applicant had failed to exhaust domestic remedies, referring to the possibility of claiming compensation for unlawful detention under Article 141 § 1 (d) of the Code on Criminal Procedure (“CCP”).

18. The applicant contested that argument.

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

20. In the case of Demir (cit ed 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.

21. In the instant case, the Court notes that the applicant ’ s detention ended on 17 May 2011 with his release from detention on remand, yet there is no any 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.

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 objection, the Court concludes that the application 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 application inadmissible .

Done in English and notified in writing on 20 July 2017 .

Hasan Bakırcı NebojÅ¡a Vučinić              Deputy Registrar President