ÖZEL v. TURKEY (European Court of Human Rights)

SECOND SECTION

DECISION

Application no.29028/09
Mehmet Veysi ÖZEL
against Turkey

The European Court of Human Rights (Second Section), sitting on 22 January 2019 as a Committee composed of:

Julia Laffranque, President,
Valeriu Griţco,
Stéphanie Mourou-Vikström, judges,
and Hasan Bakırcı, Deputy Section Registrar,

Having regard to the above application lodged on 30 April 2009,

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 Mehmet Veysi Özel, is a Turkish national, who was born in 1971 and was detained at the Şırnak T-type Prison.

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 5September 2001 the applicant was arrested on suspicion of membership of a terrorist organisation.

5.  On 14September 2001 the applicant was placed in detention on remand.

6.  By the indictments dated 22 October 2001, 7 May 2002 and 26July 2001, respectively, the applicant was charged with membership of a terrorist organisation and attempting to abolish and to dissolve the Constitution of the Republic of Turkey by force. The cases were joined at a later stage of the proceedings.

7.  On 30December 2009 the Diyarbakır Assize Court convicted the applicant as charged and sentenced him to life time imprisonment. The court also ordered the continuation of the applicant’s detention.

8.  The case file does not contain any further information about the outcome of the appeal proceedings before the Court of Cassation.

B.  Relevant domestic law and practice

9.  A description of the relevant domestic law and practice can be found in A.Ş v.Turkey (no. 58271/10, §§ 34-35, 13 September 2016), and Şefik Demir v.Turkey ((dec.), no. 51770/07, §§ 29-33, 16October 2012).

COMPLAINTS

10.  The applicant complained under Article 5 § 3 of the Convention that the length of his police custody and pre-trial detention had been excessive.

11.  The applicant also alleged under Article 6 of the Convention that the length of the criminal proceedings did not comply with the “reasonable time” requirement.

THE LAW

A.  Article 5 § 3 of the Convention

1.  Length of the applicant’s police custody

12.  The applicant complained about the length of his police custody that ended on 14September 2001.

13.  The Court observes that as the applicant did not lodge his application with the Court until 30 April 2009, this complaint must be declared inadmissible for non‑compliance with the six-month rule, pursuant to Article35 §§1 and 4 of the Convention.

2.  Regarding the length of the applicant’s detention on remand

14.  The applicant complained under Articles 5 § 3 and 13 of the Convention that the length of his pre-trial detention had been excessive. Without submitting a specific decision of the domestic courts by which his release request was rejected or making a specific argument concerning the means by which the domestic authorities breached his right in question the applicant alleged that he did not have an effective remedy to challenge the excessive length of his detention.

15.  The Court considers that it is more appropriate to examine the applicant’s complaints from the standpoint of Article 5 § 3 alone as they mainly concern the length of the applicant’s pre-trial detention.

16.  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”).

17.  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 Şefik Demir v. Turkey ((dec.), no. 51770/07, §§ 17‑35, 16October 2012).

18.  In the case of Şefik Demir (cited above) the Court held 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 June2015 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.

19.  In the instant case, the Court notes that the applicant’s detention ended on 30 December 2009 with his conviction by Diyarbakır Assize Court, 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.

20.  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.

21.  As a result, taking into account the Government’s objection, the Court concludes that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

B.  Article 6 § 1 of the Convention

22.  Under Article 6 § 1 of the Convention, the applicant complained about the length of the criminal proceedings brought against him.

23.  The Court notes that the same complaint has already been examined by the Court in application no. 32452/11 (see Haçikoğlu and Others v. Turkey, no. 21786/04, 8 April 2014). Consequently, this part of the present application is inadmissible in terms of Article35 §2(b) of the Convention for being substantially the same as that examined in application no. 32452/11, and must be rejected pursuant to Article35 §4.

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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