Information Note on the Court’s case-law No. 176

July 2014

Koçintar v. Turkey (dec.) - 77429/12

Decision 1.7.2014 [Section II]

Article 35

Article 35-1

Exhaustion of domestic remedies

Effective domestic remedy

Non-exhaustion of a new accessible and effective constitutional remedy: inadmissible

Facts – The applicant was held in pre-trial detention from 16 February 2009 to 6 March 2014. He made various applications to the Assize Court for release but they were dis missed.

Law – Article 35 § 1: Following the amendments to the Constitution that came into force in September 2012, the right of individual application to the Turkish Constitutional Court had been introduced in the national legal system, conferring jurisdic tion on that court to examine applications by individuals claiming to have suffered infringements of their fundamental rights and freedoms as protected by the Turkish Constitution and the European Convention on Human Rights and the Protocols thereto. The C ourt had already examined this new remedy in a case concerning a different complaint* and had concluded that it was effective. It was not necessary to re-examine all the aspects of this new remedy. However, in view of the nature of the complaint forming th e subject of the present case, some aspects of the remedy had to be re-examined in the light of the particular circumstances, such as the accessibility of the remedy, the Constitutional Court’s temporal jurisdiction and the effect of its judgments on the d eprivation of liberty at issue.

As to the accessibility of this remedy, only decisions that had become final could be the subject of an individual complaint. In cases concerning pre-trial detention, the end of the period referred to in Article 5 § 3 of the Convention was the day on which the charge was determined at first instance or the detainee was released. It should also be noted that a person complaining about the length of pre-trial detention could apply to the Constitutional Court at any time during the detention and did not have to wait until the detention ended before lodging the complaint. The remedy had therefore been accessible.

The Turkish Constitutional Court’s jurisdiction ratione temporis had begun on 23 September 2012 and it was clear from t he judgments already delivered that it accepted an extension of its jurisdiction ratione temporis to situations involving a continuing violation which had begun before the introduction of the right of individual application and had carried on after that da te. Accordingly, the applicant’s detention even in the period before 23 September 2012 came within the Constitutional Court’s temporal jurisdiction.

To be effective, a remedy in respect of the length of pre-trial detention for the purposes of Article 5 § 3 of the Convention had to offer the prospect of the impugned deprivation of liberty being ended. Where the Constitutional Court found a violation of the right to liberty as guaranteed by Article 19 of the Constitution and the applicant remained in detentio n, it transmitted the judgment containing that finding to the appropriate court so that it could take the necessary action; the judgment was binding. Although the Court was not currently aware of any cases – other than the few examples submitted by the Gov ernment – where detainees had been released following a judgment in which the Constitutional Court had found a violation, there was no cause to doubt that such judgments would be effectively implemented. It could thus be concluded that a constitutional com plaint to the Turkish Constitutional Court could in principle lead to the detainee’s release.

The Court therefore did not have any evidence to suggest that the remedy in question was not capable of affording appropriate redress for the applicant’s complain t under Article 5 § 3 of the Convention, or that it did not offer reasonable prospects of success. The applicant had consequently been required to lodge an individual complaint with the Constitutional Court.

Conclusion : inadmissible (failure to exhaust dom estic remedies).

* Uzun v. Turkey (dec.), 10755/13, 30 April 2013, Information Note 163 .

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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