Information Note on the Court’s case-law No. 156

October 2012

Demir v. Turkey (dec.) - 51770/07

Decision 16.10.2012 [Section II]

Article 35

Article 35-1

Exhaustion of domestic remedies

Effective domestic remedy

Failure to exhaust new remedy providing for compensation but not release in case where unreasonably lengthy detention had already ended: preliminary objection allowed

Facts – On 14 February 2000 the applicant was remanded in custody in connection with an operation against an illegal organisation. His conviction was upheld by the Court of Cassation on 6 July 2009. Throughout the proceedings, at regular intervals, the domestic courts ordered that his c ustody be extended.

Law – Article 35 § 1: As a general rule, a remedy in respect of the length of pre-trial detention, within the meaning of Article 5 § 3 of the Convention must, in order to be effective, provide its user with the possibility of obtaining release from the detention in question. However, in the case of a claim based on Article 5 § 3, as already established in respect of Article 5 § 1, when the pre-trial detention had already ended it had to be ascertained whether the detainee could have used a remedy by which to obtain, first, recognition of the unreasonable nature of the length of the detention, and second, an award of compensation in respect of that finding. If that were the case, the remedy had to be used in principle. The remedy introduce d by Article 141 § 1 (d) of the Code of Criminal Procedure (CCP) was not capable of securing the applicant’s release. Moreover, it could not be used while the proceedings against him were still pending. Its only purpose therefore was to obtain compensation . However, the applicant’s pre-trial detention within the meaning of Article 5 § 3 of the Convention had come to an end with his conviction at first instance, that conviction having become final on 6 July 2009. Consequently, from that date onwards, the app licant had been entitled to seek compensation under Article 141 of the Code of Criminal Procedure, but he had failed to do so. Furthermore, the award of such compensation would have had to be preceded by a finding that the length of the pre-trial detention had not been reasonable. By using that remedy the applicant could thus potentially have obtained recognition of the unreasonable nature of the impugned measure and also redress for the damage he had suffered. In addition, as the Article in question was a new statutory provision adopted for the specific purpose of creating a remedy to redress that type of grievance, there was an interest in bringing the matter before the domestic courts to enable them to apply the provision. However, this finding was withou t prejudice to the possibility of re-examining the question of the relevant remedy, and in particular the capacity of the domestic courts to establish, in applying Article 141 § 1 (d) of the Code of Criminal Procedure, case-law that was consistent and comp atible with Convention requirements.

Conclusion : preliminary objection allowed (majority).

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

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