SECOND SECTION

DECISION

Application no . 53086/11 Numan KAYAALP and others against Turkey

The European Court of Human Rights (Second Section), sitting on 16 May 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 5 August 2011,

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

Having deliberated, decides as follows:

THE FACTS

1. A list of the applicants, who are all Turkish nationals and reside in Istanbul, is set out in the appendix. The applicants were represented by H. Çalışçı , a lawyer practising in Istanbul.

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 12 July 2010 the applicants were arrested by police officers from the Istanbul Police Headquarters on suspicion of having been involved in activities of a terrorist organisation. On 15 July 2010 the applicants ’ statements were taken by the public prosecutor. The same day, the investigating judge at the Istanbul Assize Court ordered the pre-trial detention of the applicants.

5. The applicants ’ representative challenged this decision and maintained that the evidence in the file was not sufficient to justify keeping the applicants in detention. Relying on the United Nations Convention on the Rights of the Child, he requested that the applicants be released. On 27 July 2010 this objection was dismissed by the appeal court.

6. On 16 December 2010 criminal proceedings were instituted against the applicants in the Istanbul Juvenile Assize Court. They were charged with membership of an armed terrorist organisation, making propaganda in support of an armed terrorist organisation, unlawful possession and transfer of hazardous materials and damage to property.

7. On 23 December 2010, at the end of the preparatory hearing, the Istanbul Juvenile Assize Court decided that the applicants ’ detention should continue.

8. In hearings held on 11 February and 10 March 2011, taking into account the seriousness of the offence and the state of the evidence, the court ordered that the applicants ’ detention on remand be continued.

9. On 18 April 2011 the applicants were released pending trial.

10. According to the information in the case file, the proceedings against applicants are still pending.

B. Relevant domestic law and practice

11. A description of the relevant domestic law and practice can be found A.Ş. v. Turkey ( no. 58271/10 , § 34-35, 13 September 2016).

COMPLAINT

12. The applicants complained under Article 5 § 3 of the Convention about the excessive length of their detention on remand.

THE LAW

13. The applicants complained under Article 5 § 3 of the Convention about the excessive length of their detention on remand.

14. The Government rejected the allegation, submitting that the applicants 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”). In this regard, the Government submitted several judgments of the Court of Cassation where this court emphasised that there was no need to wait for the proceedings to become final in order to decide on the compensation claims under above-mentioned article of CCP.

15. The applicants contested that argument.

16. 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 case of A.Ş. v. Turkey (no. 58271/10 , § 85-95, 13 September 2016). It ruled in its judgment 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 (see, A.Ş. , cited above, § 92) .

17. In the instant case, the Court notes that the applicants ’ detention ended on 18 April 2011 and the proceedings against them are still pending before the first-instance court. Accordingly, as of June 2015, the applicants were entitled, even before related proceedings come to an end, to seek compensation under Article 141 § 1 (d) of the CCP. However, they 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.), 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 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 15 June 2017 .

Hasan Bakırcı Julia Laffranque              Deputy Registrar President

Appendix

Name of Applicant

Date of Birth

01/07/1993

03/06/1995

19/06/1994