SECOND SECTION

DECISION

Application no . 33617/08 Mustafa NÄ°ÅžANCI against Turkey

The European Court of Human Rights (Second Section), sitting on 27 September 2016 as a Committee composed of:

Valeriu Griţco, President, Stéphanie Mourou-Vikström, Georges Ravarani, judges, and Hasan Bakırcı, Deputy Section Registrar ,

Having regard to the above application lodged on 11 July 2008,

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 Mustafa Nişancı, is a Turkish national, who was born in 1944. He was represented before the Court by Mr A. S. Sürücü and Mr M. Sürücü, lawyers practising in İzmir . The Turkish Government (“the Government”) were represented by their Agent.

2. On 29 July 2005 the applicant was taken into custody on suspicion of murder. On 30 July 2005 he was brought before the investigating judge who ordered his pre-trial detention.

3. On 3 August 2005 the applicant ’ s lawyer objected to his detention. The objection was rejected on the same day.

4. On 15 November 2005 the public prosecutor filed an indictment and charged the applicant with murder and attempted murder, according to Articles 81 and 86 of the Turkish Criminal Code, Law no. 5237.

5. Between 22 December 2005 and 13 September 2006, the İzmir Assize Court held six hearings and examined the applicant ’ s continued detention at the end of each hearing, either of its own motion or upon the applicant ’ s requests. On each occasion, the court ordered the applicant ’ s continued detention, taking into account the nature of the offence, content of the file, the state of the evidence, and severity of the penalty for the offence in question.

6. On 13 September 2006 the İzmir Assize Court sentenced the applicant to ten years ’ imprisonment for murder.

7. On 12 December 2007 the Court of Cassation quashed the judgment of the first instance court.

8. Accordingly, the case was remitted back to the first-instance court. The Ä°zmir Assize Court held three hearings, namely on 6 March 2008 and 3 April 2008 and 15 May 2008.

9. On 15 May 2008 the İzmir Assize Court found the applicant guilty as charged and sentenced him to sum of eleven years, ten months and fifteen days ’ imprisonment.

10. The applicant appealed. On 6 October 2009 the Court of Cassation upheld the judgment.

COMPLAINTS

11. The applicant complained under Article 5 §§ 1 and 3 of the Convention that the length of his pre-trial detention had been excessive and that the domestic courts had rejected his release requests on the basis of stereotyped grounds.

12. Moreover, the applicant allege d under Articles 5 § 4 and 13 of the Convention that there had been no effective remedy provided by the domestic legal system whereby he could effectively challenge his continued pre-trial detention.

13. The applicant furthermore stated under Article 5 § 5 that he had no right to compensation under domestic law in respect of his complaints under Article 5 §§ 3 and 4.

14. The applicant also maintained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention.

THE LAW

A. Complaint under Article 5 § 3 of the Convention

15. The applicant complained under Article 5 §§ 1 and 3 of the Convention about the length of his detention on remand.

16. The Court considers that in the circumstances of the present application it is more appropriate to deal with the applicant ’ s complaints under Article 5 § 3 of the Convention.

17. The Government raised several preliminary objections. However, given that this part of the application is in any case inadmissible for the reasons given below, there is no need to examine them.

18. The Court observes that in the present case, the applicant was taken into police custody on 29 July 2005, and was placed in pre-trial detention on 30 July 2005. Subsequently, on 13 September 2006 the İzmir Assize Court convicted the applicant. From 13 September 2006 until his conviction was quashed by the Court of Cassation on 12 December 2007, he was detained “after conviction by a competent court”, within the meaning of Article 5 § 1 (a) and therefore that period of his detention falls outside the scope of Article 5 § 3 (see Solmaz v. Turkey , no. 27561/02, § 34, 16 January 2007, and the cases cited therein). From 12 December 2007 until his second conviction on 15 May 2008, the applicant was once more in pre-trial detention for the purposes of Article 5 § 3 of the Convention.

19. Accordingly, the first period of the applicant ’ s detention on remand was one year, one month and fifteen days and the second period of the detention on remand was five months and 3 days, namely a total of one year, six months and eighteen days ’ detention on remand.

20. The Court observes that, in prolonging the applicant ’ s detention, the authorities, in addition to the reasonable suspicion against him, principally relied on the nature of the offence, content of the file and the severity of the penalty to which he was liable .

21. The applicant was charged with murder and attempted murder. The Government maintained that in view of the seriousness of the charges against the applicant and the evidence in the case file, the domestic court had had to extend his detention pending the outcome of the trial.

22. The Court accepts that the reasonable suspicion against the applicant of having committed these serious offences could have warranted his detention.

23. Nevertheless, as to the grounds for the continued detention, the domestic courts applied law and practice under which there was a presumption that detention on remand was necessary in cases where the sentence faced went beyond a certain threshold of severity. In the instant case, the applicant was charged with murder for which he may be sentenced to life imprisonment.

24. The severity of the sentence faced is a relevant element in the assessment of the risk of absconding or re-offending. The Court accepts that in view of the seriousness of the accusation against the applicant the authorities could justifiably consider that such an initial risk was established. However, the Court has repeatedly held that the gravity of the charges cannot by itself serve to justify long periods of detention on remand (see Gamze Uludağ v. Turkey , no. 21292/07 , § 35, 10 December 2013 ).

25. However, in the circumstances of the present case, the Court does not discern any significant periods of inactivity by the national authorities. It therefore considers that the grounds given for the applicant ’ s pre-trial detention were “relevant” and “sufficient” to justify holding the applicant in custody for the entire period concerned, namely eighteen months and nineteen days.

26. The Court thus concludes that during the impugned period the domestic authorities handled the applicant ’ s case with due diligence.

27. It follows that this part of the application is manifestly ill-founded and must be rejected under Article 35 §§ 3 (a) and 4 of the Convention.

B. Complaint under Article 5 § 4 of the Convention

28. The applicant further complained under Article 5 § 4 of the Convention about the alleged shortcomings in the procedure for reviewing his detention.

29. The Government contested that argument.

30. The Court considers that this complaint is unsubstantiated as the applicant has not made any specific argument concerning the means by which the domestic authorities violated his right under Article 5 § 4 of the Convention (see Filiz v. Turkey , no. 28074/08 , § 69, 4 March 2014) .

31. The Court concludes that this part of the application is inadmissible as being manifestly ill-founded in accordance with Article 35 §§ 3 and 4 of the Convention.

C. Complaint under Article 5 § 5 of the Convention

32. The applicant complained under Article 5 § 5 of the Convention that he had not been provided with effective domestic remedies with regard to his complaints under Articles 5 §§ 3 and 4 of the Convention.

33. The Government contested that argument.

34. The Court reiterates that paragraph 5 of Article 5 is complied with where it is possible to apply for compensation in respect of a deprivation of liberty effected in conditions contrary to paragraphs 1, 2, 3 or 4 ( Wassink v. the Netherlands , 27 September 1990, § 38, Series A no. 185 ‑ A) . The right to compensation set forth in paragraph 5 therefore presupposes that a violation of one of the preceding paragraphs of Article 5 has been established, either by a domestic authority or by the Court. Accordingly, the Court cannot consider an applicant ’ s claim based exclusively on Article 5 § 5 unless a breach of Article 5 §§ 1 to 4 has been established directly or in substance, either by the domestic authorities or by the Court itself. As the applicant ’ s case does not disclose such a breach, his claim under Article 5 § 5 should also be rejected for being incompatible ratione materiae .

D. Complaints under Articles 6 of the Convention

35. Relying on Article 6 § 1 of the Convention, the applicant argued that the criminal proceedings against him had lasted too long.

36. The Court observes at the outset that a new domestic remedy has been established in Turkey to deal with complaints concerning the length of proceedings since the application of the pilot judgment procedure in the case of Ümmühan Kaplan v. Turkey (no. 24240/07, 20 March 2012), which remedy has been considered, a priori , accessible and capable of offering a reasonable prospect of redress (see Turgut and Others v. Turkey (dec.), no. 4860/09, 26 March 2013). The Court has, however, also stressed in the case of Ümmühan Kaplan (cited above, § 77) that it may nevertheless pursue the examination of such complaints under the normal procedure in cases which have already been communicated to the Government prior to the entry into force of the new remedy.

37. In view of the above, and bearing in mind that the Government did not raise an objection in respect of the new domestic remedy in the instant case, the Court decides to pursue the examination of the present complaint (see Hasan Yazıcı v. Turkey , no. 40877/07, §§ 71-73, 15 April 2014).

38. The Court notes that the proceedings began on 29 July 2005 with the applicant ’ s arrest and ended on 6 October 2009 with the final decision of the Court of Cassation. Therefore, they lasted for a period of four years and three months at two levels of jurisdiction.

39. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the criteria established by its case-law, particularly the complexity of the case, the conduct of the applicant and of the relevant authorities and what was at stake for the applicant in the dispute (see, among others, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000 ‑ VII, and Humen v. Poland [GC], no. 26614/95, § 60, 15 October 1999).

40. The Court considers that the present case was of a complex nature owing to the allegations. The applicant was charged with murder and attempted murder and the domestic courts needed to obtain expert evidence and a number of witness statements. The applicant failed to point out any instance where the authorities were inactive or could have acted differently so as to avoid delays. On the contrary, the case file demonstrates that the judicial authorities acted with due diligence.

41. The Court follows that this part of the application is manifestly ill ‑ founded and must be declared inadmissible under Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court,

Declares the application inadmissible.

Done in English and notified in writing on 20 October 2016 .

Hasan Bakırcı Valeriu GriÅ£co              Deputy Registrar President