SECOND SECTION

DECISION

Application no . 16849/12 Abdurrahim AKAY 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 31 January 2012,

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 Abdurrahim Akay, is a Turkish national, who was born in 1994 and lives in I stanbul. He was represented before the Court by Mr M.S. Kızılkaya, 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 9 October 2011 the applicant was arrested on suspicion of preparing a molotov cocktail and membership of a terrorist organisation.

5. On 10 October 2011 the applicant ’ s statement was taken by the public prosecutor and, on the same day, the investigating judge at the Istanbul Magistrates ’ Court ordered his pre-trial detention.

6. On 13 October 2011 criminal proceedings were instituted against the applicant in the Istanbul Juvenile Assize Court. The applicant was accused of praising crime and a criminal, membership of an armed terrorist organisation, using explosive material and contravening the Meetings and Demonstration Marches Act (Law no. 2911).

7. On 17 October 2011, at the end of the preparatory hearing, the Istanbul Juvenile Assize Court decided that the applicant ’ s detention should be continued.

8. On 18 October 2011 the Istanbul Juvenile Assize Court declared lack of jurisdiction and transferred the case to the Istanbul Juvenile Court.

9. On 30 November 2011, at the end of a new preparatory hearing, the Istanbul Juvenile Court decided that the applicant ’ s detention should continue. On 23 December 2011 the trial resumed and at the end of the hearing, the court ordered that the applicant ’ s detention on remand be continued.

10. On 20 January 2012 the applicant was released pending trial. He did not inform the Court about the outcome of the criminal proceedings against him.

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

THE LAW

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

14. 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”). In this regard, the Government submitted several judgments of the Court of Cassation where this court emphasized 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 applicant 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). The Court concluded in its judgement in this case that decision 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 ( A.Ş. , cited above, § 92) .

17. In the instant case, the Court notes that the applicant ’ s detention ended on 20 January 2012 and the proceedings against him are still pending before the first-instance court. As of June 2015 the applicant was entitled, even before related proceedings come to an end, to seek compensation under Article 141 § 1 (d) of the CCP. However, he 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