Last Updated on April 24, 2019 by LawEuro
SECOND SECTION
DECISION
Application no.32009/11
Enis ÜNLÜ
against Turkey
The European Court of Human Rights (Second Section), sitting on 22 January 2019 as a Committee composed of:
Julia Laffranque, President,
ValeriuGriţco,
StéphanieMourou-Vikström, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above application lodged on 23 February 2011,
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 EnisÜnlü, is a Turkish national, who was born in 1967 and lives in İstanbul. He was represented before the Court by Mr S. Türkdoğru, a lawyer practising in Istanbul.
2. The Turkish Government (“the Government”) were represented by their Agent.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. On 16 October 2006 the applicant, a police officer, was arrested and taken into custody.
5. On 19 October 2006 the Bakırköy Magistrates’ Court ordered the applicant’s detention on remand.
6. On 25 January 2007 the public prosecutor filed an indictment with the İstanbul Assize Court charging the applicant with, inter alia, forming an armed criminal organisation to gain illegal financial profit.
7. On 19 April 2011 and 21 June 2011, respectively, the trial court ordered the continuation of the applicant’s detention on remand and stated the reasons for prolongation.
8. On 17 October 2011 the İstanbul Assize Court ordered the applicant’s release pending trial.
9. According to the latest information in the case file, the criminal proceedings against the applicant were still pending as of July 2013.
10. In the meantime, the applicant was dismissed from his post by a decision of the Disciplinary Board due to abuse of office and corruption.
B. Relevant domestic law and practice
11. A description of the relevant domestic law and practice concerning Article 5 § 3 can be found in A.Ş v. Turkey (no. 58271/10, §§ 34-35, 13 September 2016), and ŞefikDemir v. Turkey ((dec.), no. 51770/07, §§ 29-33, 16 October 2012).
12. Furthermore, Article 102 of the Criminal Procedure Code states that for cases that fall within the jurisdiction of the Assize Courts, the period of detention on remand is maximum two years. However, when there are compelling reasons, the detention period may be extended beyond these two years but for another period of maximum three years (in total five years) with a reasoned decision delivered by a court.
COMPLAINTS
13. The applicant complained that no separate decision had been taken by the domestic courts to prolong his detention beyond the two-year period, as required by Article 102 § 2 of the Code of Criminal Procedure (“CCP”), which had entered into force on 31 December 2010.
14. The applicant complained under Article 5 § 3 of the Convention about the length of his detention on remand.
15. The applicant further stated that the initial detention order had been unlawful, and alleged that the court decisions regarding the ex officio examinations and prolongations of his detention on remand, had not been communicated to him. Under Article 6 of the Convention, the applicant also stated that his right to presumption of innocence had been breached as he had been dismissed from his post before the end of the criminal proceedings. He also complained under Article 8 of the Convention about the interception of his phone conversations without a valid court decision.
THE LAW
A. As regards the applicant’s complaint under Article 5 § 1 of the Convention
16. The applicant complained that no separate decision had been taken by the domestic court to prolong his detention beyond the two-year period as required by Article 102 § 2 of the Code of Criminal Procedure (“CCP”), which entered into force on 31 December 2010.
17. The Court notes that according to Article 102 § 2 of the CCP which entered into force on 31 December 2010, the duration of the detention on remand is limited to two years for offenses that fall within the jurisdiction of the Assize Court. However, if there are compelling reasons, this period may be extended for another three years, without exceeding a total period of detention of five years.
18. In the present case, when Article 102 of the CCP entered into force on 31 December 2010, the applicant had already been detained for almost four years and two months. Consequently, the Court observes that at end of the hearings held on 19 April 2011 and 21 June 2011, respectively, the trial court ordered the continuation of the applicant’s detention and stated the reasons for prolongation. On 17 October 2011, namely upon the end of the five year period spent in detention on remand, the trial court once again examined the applicant’s continued detention and ordered his immediate release pending trial. In view of the foregoing, the Court considers that the applicant’s detention on remand was not contrary to domestic law. The maximum period of detention was not exceeded and the courts delivered reasoned decisions when prolonging the applicant’s detention on remand.
19. It follows that this complaint is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
B. As regards the applicant’s complaint under Article 5 § 3 of the Convention
20. The applicant complained under Article 5 § 3 of the Convention about the length of his detention on remand.
21. The Government asked the Court to reject this complaint due to non-exhaustion of domestic remedies. In this respect, they submitted that the applicant should request compensation pursuant to Article 141 of the Code on Criminal Procedure (“CCP”).
22. The Court observes that the domestic remedy in application of Article 141 § 1 (d) of the CCP with regard to length of detention on remand was examined in the cases of A.Ş. v. Turkey (no. 58271/10, § 85-95, 13 September 2016) and ŞefikDemir v. Turkey, ((dec.), no. 51770/07, §§ 17-35, 16 October 2012).
23. In the case of ŞefikDemir (cited above) the Court held that that remedy had to be exhausted by the applicants whose convictions became final. It further ruled in its judgment of A.Ş. (cited above, § 92) that as of June 2015 the domestic remedy provided for in Article 141 § 1 (d) of the CCP had to be exhausted by the applicants even before the proceedings became final.
24. In the instant case, the Court notes that the applicant’s detention ended on 17 October 2011 with his release from detention on remand, yet there is no information whether the proceedings against him are still pending or have become final. However, the Court observes that the applicant was entitled, in both situations, to seek compensation under Article 141 § 1 (d) of the CCP. However, he failed to do so.
25. The Court reiterates that the assessment of whether domestic remedies have been exhausted is normally carried out with reference to the date on which the application was lodged with the Court. However, as the Court has held on many occasions, this rule is subject to exceptions, which may be justified by the particular circumstances of each case (see İçyer v. Turkey (dec.), no. 18888/02, § 72, ECHR 2006 I). The Court has previously departed from this rule in cases concerning the above-mentioned remedy in respect of the length of detention, which became applicable after the final decision on the criminal proceedings (see also, among others, Tutal and Others v. Turkey (dec.), no. 11929/12, 28 January 2014). The Court takes the view that the exception should be applied in the present case as well.
26. As a result, taking into account the Government’s objection, the Court concludes that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
C. Remaining Complaints
27. As regards the remaining complaints raised under Articles 5, 6 and 8 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.
28. Consequently, this part of the application should be rejected in accordance with Article 35 § 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 14 February 2019.
Hasan Bakırcı Julia Laffranque
Deputy Registrar President
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