SECOND SECTION

DECISION

Application no . 71438/11 Alp ERS Ä° N against Turkey

The European Court of Human Rights (Second Section), sitting on 24 January 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 24 October 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 Alp Ersin, is a Turkish national, who was born in 1977 and lives in Istanbul. He was represented before the Court by Mr C. B ı çakcı, 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 16 June 2009 the applicant was arrested and taken into police custody on suspicion of drug trafficking.

5. On 18 June 2009 the 9 th Chamber of the Istanbul Assize Court ordered the applicant ’ s detention on remand on suspicion of drug trafficking and membership of an organised crime group .

6. On 25 June 2009 the Istanbul public prosecutor filed an indictment with the Istanbul Assize Court accusing the applicant of the above ‑ mentioned crimes.

7. Between 29 September 2009 and 13 December 2011 the 9 th Chamber of the Istanbul Assize Court held eight hearings during which it ordered applicant ’ s continued detention on the basis of the gravity of the sentence foreseen for the offence in question and the strong suspicion of guilt.

8. On 13 December 2011 the court convicted the applicant as charged and sentenced him to five years and six months ’ imprisonment as well as a fine. The court also ordered the applicant ’ s release, taking into consideration the length of his detention.

9. The applicant appealed against the judgement of 13 December 2011. On 21 January 2013 the Court of Cassation quashed this judgment. The case file was accordingly remitted to the Istanbul Assize Court.

COMPLAINTS

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

11. The applicant further complained under Articles 5 § 4 and 6 § 1 of the Convention that the courts had not taken his pleadings for his release into consideration and that their decisions were short and stereotyped and lacked proper reasoning.

12. The applicant finally complained under Article 6 § 1 of the Convention that the length of the criminal proceedings against him contravened the “reasonable time” requirement.

THE LAW

A. Article 5 of the Convention

13. The applicant complained under Article 5 § 3 of the Convention about about length of his pre-trial detention . Relying on Articles 5 § 4 and 6 § 1 of the Convention, the applicant further complained that the courts did not take his pleadings for his release into consideration and that their decisions were short and lacked proper reasoning.

14. The Court observes at the outset that the applicant ’ s complaints under Article 5 § 4 and 6 § 1 of the Convention should be examined under Article 5 § 3 of the Convention.

15. 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 hereby wishes to express by the way of unilateral declaration its acknowledgment that the applicant ’ s excessive length of pre-trial detention did not meet the standards enshrined in Article 5 § 3 of the Convention.

Consequently, the Government is prepared to pay the applicant, EUR 2.200 (two thousand two hundred euros) to cover any pecuniary and non-pecuniary damage and EUR 400 (four hundred euros) to cover any and all costs and expenses, plus any tax that may be chargeable to the applicant. This 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.

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.”

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

17. 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 paragrap h 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”.

18. 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.

19. 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).

20. 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 ).

21. 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)).

22. 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 ).

23. The Court considers that these amounts should be converted into 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.

24. 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).

25. 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 of the Convention

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

27. 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 Ãœmmühan Kaplan v. Turkey (no. 24240/07, 20 March 2012). Subsequently, in its decision in the case of Müdür 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.

28. In this context, the Court observes that the applicant failed to make use of the new domestic remedy established by Law no. 6384. Thus, the Court reiterates its conclusion in the case of Müdür Turgut and Others (cited above). It therefore concludes that there are no exceptional circumstances capable of exempting the present applicant from the obligation to exhaust domestic remedies.

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

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 16 February 2017 .

Hasan Bakırcı NebojÅ¡a Vučinić              Deputy Registrar President