Last Updated on June 17, 2019 by LawEuro
SECOND SECTION
DECISION
Application no. 65206/10
Murat İPEK
against Turkey
The European Court of Human Rights (Second Section), sitting on 3 July 2018 as a Committee composed of:
LediBianku, President,
Nebojša Vučinić,
Jon Fridrik Kjølbro, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above application lodged on 6 September 2010,
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 Murat İpek, is a Turkish national, who was born in 1979 and lives in Istanbul. He was represented before the Court by Mr E. Kanar, 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 27 November 2005 the applicant was arrested by the police.
5. On 29 November 2005 the judge at the Istanbul Assize Court ordered the applicant’s detention on remand.
6. On 22 December 2005 the public prosecutor filed an indictment with the Istanbul Assize Court, charging the applicant with, inter alia, membership of a terrorist organisation.
7. On 10 September 2008 the Istanbul Assize Court convicted the applicant as charged and sentenced him to a total of eleven years and three months’ imprisonment. The court also ordered the continuation of the applicant’s detention.
8. On 28 June 2011 the Court of Cassation quashed the judgment. The case was accordingly remitted to the Istanbul Assize Court.
9. On 15 February 2012 the Istanbul Assize Court ordered the applicant’s release pending trial.
10. On 18 December 2012 the Istanbul Assize Court once again convicted the applicant and sentenced him to a total of nine years and eleven months’ imprisonment and a fine.
11. The applicant appealed against the judgment of 18 December 2012 and according to the latest information in the file, the proceedings are pending before the Court of Cassation.
12. On 21 August 2013 the applicant applied to the Compensation Commission established by the Law no. 6834 complaining about the length of criminal proceedings. In a decision dated 6 June 2014 the Compensation Commission suspended the examination of the applicant’s complaint concerning the length of proceedings pending the outcome of the Court’s decision on exhaustion of domestic remedies.
B. Relevant domestic law and practice
13. 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), ŞefikDemir v. Turkey ((dec.), no. 51770/07, §§ 29-33, 16 October 2012), and Turgut and Others v. Turkey ((dec.), no. 4860/09, §§ 19-26, 26 March 2013).
COMPLAINTS
14. The applicant complained under Article 5 § 3 of the Convention that the length of his pre-trial detention had been excessive. He also alleged under Article 6 § 2 that his right to be presumed innocent was violated because he had been detained on remand for an excessive length of time.
15. The applicant maintained under Article 6 § 1 of the Convention that the criminal proceedings against him had not been concluded within a reasonable time.
THE LAW
A. As regards the applicant’s complaint under Article 5 § 3 of the Convention
16. The applicant complained under Article 5 § 3 of the Convention that the length of his pre-trial detention had been excessive. He further complained under Article 6 § 2 of the Convention that his right to be presumed innocent had been violated because he had been detained for an excessive length of time.
17. 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 (see Can v. Turkey (dec.), no. 6644/08, 14 April 2009).
18. 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”).
19. 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, 16October 2012).
20. 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.
21. In the instant case, the Court notes that the applicant’s detention ended on 15 February 2012 with his release from detention on remand, yet there is no any 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.
22. 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.
23. As a result, taking into account the Government’s objection, the Court concludes that the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
B. As regards the applicant’s complaint under Article 6 § 1 of the Convention
24. The applicant complained that the length of the criminal proceedings against him had been incompatible with the “reasonable time” requirement laid down in Article 6 § 1 of the Convention.
25. The Government noted that pursuant to Law no. 6384 a Compensation Commission had been established to deal with applications concerning the length of proceedings and the non-execution of judgments. They maintained that the applicant had to apply to the Compensation Commission to exhaust the domestic remedies.
26. The Court observes that, as pointed out by the Government, a domestic remedy has been established in Turkey following the application of the pilot judgment procedure in the case of Ümmühan Kaplan v. Turkey (no. 24240/07, 20 March 2012). Subsequently, in its decision in the case of Turgut and Others v. Turkey ((dec.), no. 4860/09, 26 March 2013), the Court declared a new application inadmissible on the ground that the applicants had failed to exhaust domestic remedies, that is to say the new remedy. In so doing, the Court considered in particular that this new remedy was a priori accessible and capable of offering a reasonable prospect of redress for complaints concerning the length of proceedings.
27. The Court notes that in its decision in the case of Ümmühan Kaplan (cited above, § 77) it stressed that it could nevertheless examine applications of this type which had already been communicated to the Government.
28. However, taking account of the Government’s preliminary objection, and of the fact that the applicant informed the Court that he applied to the above-mentioned Commission after his application had been communicated to the Government, and of the decision dated 6 June 2014 by the Compensation Commission suspending the examination of the applicant’s complaint concerning the length of proceedings pending the decision of the Court on non-exhaustion of domestic remedies, the Court reiterates its conclusion in the case of Turgut and Others (cited above).
29. It therefore 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.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 6 September 2018.
Hasan Bakırcı LediBianku
Deputy Registrar President
Leave a Reply