SECOND SECTION

DECISION

Application no . 27774/11 Özkan KAYA against Turkey

The European Court of Human Rights (Second Section), sitting on 25 April 2017 as a Committee composed of:

Nebojša Vučinić , President, Valeriu Griţco , Stéphanie Mourou-Vikström , judges,

and Hasan Bakırcı, Deputy Section Registrar ,

Having regard to the above application lodged on 17 January 2011,

Having regard to the declaration submitted by the respondent Government on 5 August 2016 requesting the Court to strike the application out of the list of cases and the applicant ’ s reply to that declaration,

Having deliberated, decides as follows:

FACTS AND PROCEDURE

1. The applicant, Mr Özkan Kaya, is a Turkish national, who was born in 1985 and lives in Istanbul. He was represented before the Court by Mr H. Akgül , a lawyer practising in Istanbul.

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 3 March 2008 the applicant was arrested on suspicion of membership of an illegal organisation .

5. On 6 March 2008 the investigating judge at the Istanbul Assize Court ordered the applicant ’ s pre-trial detention on suspicion of membership of an illegal organisation , having regard to the existence of strong suspicion that the applicant had committed the offence.

6. On 4 April 2008 the Istanbul public prosecutor filed an indictment with the Istanbul Assize Court accusing the applicant of membership of an illegal organisation, disseminating propaganda for it and storage of hazardous materials .

7. On 14 August 2008 the first hearing was held before the Istanbul Assize Court. During the subsequent hearings, the Istanbul Assize Court rejected the applicant ’ s release requests having regard to the nature of the offence and the strong suspicion that the applicant had committed the offence in question.

8. On 7 July 2011 the Istanbul Assize Court released the applicant from detention on remand.

9. On 24 May 2012 the court convicted the applicant as charged and sentenced him to seven years and eleven months ’ imprisonment.

10. On 12 March 2014 the Court of Cassation upheld the judgment of the first instance court.

COMPLAINTS

11. The applicant complained under Article 3 of the Convention that he had been subjected to ill-treatment during his police custody.

12. The applicant further alleged under Article 5 § 3 of the Convention that the length of his detention on remand had been excessive.

13. The applicant also stated under Article 6 § 1 of the Convention that the length of the criminal proceedings against him contravened the “reasonable time” requirement.

14. Under Article 6 of the Convention, the applicant further argued that he had been denied legal assistance during his police custody and that the proceedings against him had been unfair.

15. Relying on Articles 11 and 13 of the Convention, the applicant also alleged a breach of his right to freedom of assembly and right to an effective remedy.

THE LAW

A. Article 5 § 3 of the Convention

16. The applicant complained under Article 5 § 3 of the Convention and about the length of his pre-trial detention .

17. After the failure of attempts to reach a friendly settlement, by a letter of 5 August 2016 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by this part of the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.

The declaration provided as follows:

“The Government of the Republic of Turkey hereby wishes to express by the way of unilateral declaration its acknowledgment that the applicant ’ s rights to liberty and security did not meet the standards enshrined in Article 5 of the Convention.

I declare that the Government accordingly offer to pay the applicant 3,000 (three thousand) euros to cover any and all pecuniary and non-pecuniary damages and EUR 500 (five hundred euros) to cover any and all costs and expenses, plus any tax that may be chargeable to the applicant.

The Government therefore invites the Court to strike the present case out of the list of cases. They suggest that the present declaration might be accepted by the Court as “any other reason” justifying the striking out of the case of the Court ’ s list of cases, as referred to in Article 37 §1 (c) of the Convention

This above mentioned sum will be converted into the national currency at the rate applicable on the date of payment, and will be free of any further taxes that may be applicable. It will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay this sum within the said three-month period, the Government undertakes to pay simple interest on it, from the expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The payment will constitute the final resolution of the case.”

18. The applicant did not submit any response to the declaration of the Government .

19. The Court re iterates that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified, under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:

“ for any other reason established by the Court, it is no longer justified to continue the examination of the application . ”

20. It also reiterates that in certain circumstances, it may strike out an application under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued.

21. To this end, the Court has examined the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment ( Tahsin Acar v. Turkey (preliminary objections) [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI; WAZA Sp. z o.o . v. Poland ( dec. ), no. 11602/02, 26 June 2007; and Sulwińska v. Poland ( dec. ), no. 28953/03, 18 September 2007).

22. The Court has established in a number of cases, including those brought against Turkey , its practice concerning complaints about the length of detention (see, for example, Cahit Demirel v. Turkey , no. 18623/03 , §§ 21 ‑ 28, 7 July 2009 ).

23. Having regard to the nature of the admissions contained in the Government ’ s declaration, as well as the amount of compensation proposed – which is consistent with the amounts awarded in similar cases – the Court considers that it is no longer justified to continue the examination of the application (Article 37 § 1 (c)).

24. Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the application (Article 37 § 1 in fine ).

25. The Court considers that these amounts should be converted into the currency of the respondent State at the rate applicable at the date of payment, and paid within three months from the date of notification of the Court ’ s decision issued in accordance with Article 37 § 1 of the European Convention on Human Rights. In the event of failure to settle within this period, simple interest shall be payable on the amount in question at a rate equal to the marginal lending rate of the European Central Bank plus three percentage points.

26. Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the application could be restored to the list in accordance with Article 37 § 2 of the Convention ( Josipović v. Serbia ( dec. ), no. 18369/07, 4 March 2008).

27. In view of the above, it is appropriate to strike the case out of the list in so far as it relates to the above complaint .

B. Article 6 § 1 of the Convention

28. The applicant complained about the length of the criminal proceedings against him. He relied on Article 6 § 1 of the Convention.

29. The Court observes that a new domestic remedy has been established in Turkey by Law no. 6384, 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 (( dec. ), no. 4860/09, §§ 47 - 58, 26 March 2013) , the Court declared a new application inadmissible on the ground that the applicants had failed to exhaust domestic remedies once a 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.

30. The Court further recalls that in its judgment in the case of Ümmühan Kaplan v. Turkey (cited above, § 77) it stressed that it could pursue the examination of applications of this type which were already communicated to the Government.

31. The Government requested the Court to declare this part of the application inadmissible for non-exhaustion of domestic remedies, referring to Law no. 6384 which provides for a remedy capable of redressing the Convention grievances of persons who complain about the length of proceedings. The applicant contested the Government ’ s argument.

32. In the light of the case of Turgut and Others ( dec. ), cited above, there are no exceptional circumstances capable of exempting the present applicant from the obligation to exhaust domestic remedies. Accordingly, the applicant should avail himself of the new remedy offered by Law no. 6384.

33. It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

C. As to the remaining complaints

34. As regards the applicant ’ s remaining complaints raised under Articles 3, 5, 6, 11 and 13 of the Convention, 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 in the light of all the material in its possession, and in so far as the matters complained of are within its competence .

35. It follows that this part of the application should be rejected in accordance with Article 35 § 4 of the Convention.

For these reasons, the Court, unanimously,

Takes note of the terms of the respondent Government ’ s declaration under Article 5 § 3 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;

Decides to strike that part of the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention.

Declares the remainder of the application inadmissible .

Done in English and notified in writing on 18 May 2017 .

Hasan Bakırcı NebojÅ¡a Vučinić              Deputy Registrar President