Last Updated on October 3, 2020 by LawEuro
SECOND SECTION
DECISION
Application no. 33218/07
Cengiz GÜRKAN
against Turkey
The European Court of Human Rights (Second Section), sitting on 29 May 2018 as a Committee composed of:
Paul Lemmens, President,
Valeriu Griţco,
Stéphanie Mourou-Vikström, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above application lodged on 20 July 2007,
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, MrCengizGürkan, is a Turkish national, who was born in 1973 and currently lives in Istanbul. He was represented before the Court by Mr E. Kanar, a lawyer practising in İstanbul.
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 10 April 2004 the applicant was taken into custody on suspicion of murder and causing bodily harm.
5. On 13 April 2004 the applicant was placed in detention on remand.
6. On 17 May 2004 the Bakırköy public prosecutor filed a bill of indictment with the 3rd Chamber of Bakırköy Assize Court charging the applicant with the above-mentioned offences.
7. On 21 May 2004 the trial court held a preparatory hearing and ordered the continuation of the applicant’s detention.
8. In hearings held on 27 January 2006 and 28 February 2007 respectively, in which the applicant was present, the trial court ordered the continuation of the applicant’s detention on remand.
9. The applicant filed objections against these decisions on 3 February 2006 and 6 March 2007 respectively. On 10 February 2006 and 13 March 2007 respectively, the 4th Chamber of Bakırköy Assize Court dismissed these objections without holding an oral hearing.
10. On 8 October 2007 the court convicted the applicant and sentenced him to thirteen years and four months’ imprisonment.
11. On 28 January 2010 the Court of Cassation upheld the judgment of the first instance court. The applicant was released on 6 March 2010.
12. On 19 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 3 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 may be found in Turgut and Others v. Turkey ((dec.), no. 4860/09, §§ 19-26, 26 March 2013), ŞefikDemir v. Turkey ((dec.), no. 51770/07, §§ 29-33, 16 October 2012) and Altınok v. Turkey (no. 31610/08, §§ 28-32, 29 November 2011).
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 stated that he did not have an effective remedy to challenge the lawfulness of his detention. In particular, he complained about his inability to appear before the judge when his objections were reviewed. In connection with these complaints the applicant relied on Article 6 § 3 (b) and 13 of the Convention.
16. The applicant further maintained under Article 6 § 1 of the Convention that the length of the criminal proceedings had been excessive.
17. Lastly, the applicant alleged under Articles 6 and 13 of the Convention that he did not have a fair trial and the domestic courts erred in the evaluation of evidence and interpretation of law.
THE LAW
A. Article 5 § 3 of the Convention
18. 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.
19. 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).
20. The Government asked the Court to reject this part of the application 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”).
21. The Court observes that the domestic remedy provided by Article 141 of the CCP with regard to length of detention on remand was examined in the case of ŞefikDemir v. Turkey ((dec.), no. 51770/07, §§ 17‑35, 16 October 2012), and it was held that that remedy had to be exhausted by the applicants whose convictions became final.
22. In the instant case, the Court notes that the applicant’s detention on remand ended on 8 October 2007 with his conviction by the Bakırköy Assize Court. On 28 January 2010 this decision became final with the decision of the Court of Cassation. From that date onwards, the applicant was entitled to seek compensation under Article 141 of the CCP (seeŞefikDemir, cited above, § 35), but he failed to do so.
23. 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.
24. 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.
B. Article 5 § 4 of the Convention
25. Relying on Articles 6 and 13 of the Convention, the applicant complained that he had not appeared before the appeal court when it decided on his objection regarding his detention on remand. The Court considers that in the circumstances of the present case, it is more appropriate to deal with these complaints under Article 5 § 4 of the Convention.
26. The Government contested that argument.
27. The Court observes in the first place that that the present application was lodged on 20 July 2007. As a result, the applicant’s complaint concerning his inability to appear before the 4th Chamber of the Bakırköy Assize Court on 10 February 2006, when his objection against his continued detention had been reviewed, has been introduced out of the six-month time-limit (see AdemSerkanGündoğdu v. Turkey, no. 67696/11, § 27, 16 January 2018).
28. The Court further notes that in the Turkish system, the question of prolonging detention is examined ex propriomotu at regular intervals (every month during the pre-trial stage and at each hearing on the merits or more frequently at the trial stage). Furthermore, a detainee may lodge a request for release at any time during both the trial and the pre-trial stage and repeat that request without having to wait for any particular period. In addition, against every decision concerning detention on remand, whether taken at the detainee’s request or ex propriomotu, an objection can be lodged (see Altınok v. Turkey, no. 31610/08, § 53, 29 November 2011, and Erişen and Others v. Turkey, no. 7067/06, § 52, 3 April 2012). The Court accepts that in such a system, the requirement to hold a hearing each time an objection is lodged could lead to a certain paralysis of the criminal proceedings (Knebl v. the Czech Republic, no. 20157/05, § 85, 28 October 2010). In the light of these considerations and taking into account the specific nature of the proceedings under Article 5 § 4, in particular the requirement of speed, the Court considers that it is not necessary for a hearing to be held in respect of each objection, unless there are exceptional circumstances (see Altınok, cited above, § 54); in that respect, it recalls that domestic courts dealing with requests of release during pre-trial detention must provide the “guarantees of a judicial procedure”, so that the proceedings must be adversarial and must always ensure equality of arms between the parties -the prosecutor and the detainee.
29. In the present case, following the hearing of 28 February 2007 which was held before the 3rd Chamber of the Bakırköy Assize Court, the applicant filed an objection against his continued detention on remand. This objection was examined and rejected by the appeal court on the basis of the case-file on 13 March 2007. The Court notes however that the applicant had appeared before the trial court on 28 February 2007, namely fourteen days before. As a result, the Court does not consider that a further oral hearing was necessary before the appeal court.
30. The Court therefore concludes that, in the circumstances of the present case, the lack of an oral hearing during the appeal proceedings did not jeopardise the principle of equality of arms (see Altınok, cited above, §§ 54-55; Çatal v. Turkey, no. 26808/08, § 40, 17 April 2012;Ali Rıza Kaplan v. Turkey, no. 24597/08, §§ 28-32, 13 November 2014, and AdemSerkanGündoğdu, cited above, §§ 41-45). It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
C. Article 6 § 1 of the Convention
31. The applicant complained that the length of the criminal proceedings had been incompatible with the “reasonable time” requirement laid down in Article 6 § 1 of the Convention.
32. The Government noted that pursuant to Law no. 6384 a new Compensation Commission had been established to deal with applications concerning the length of proceedings and the non-execution of judgments. They maintained that this part of the application should be declared inadmissible for non-exhaustion of domestic remedies. They further noted that the Compensation Commission would only be competent to deal with the applicant’s complaint following the Court’s decision on admissibility (see paragraph 12 above).
33. The Court observes that, a new 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.
34. The Court notes that in its judgment in the case of Ümmühan Kaplan (cited above, § 77) it stressed that it could nevertheless examine, under its normal procedure, applications of this type which had already been communicated to the Government.
35. However, taking account 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 3 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).
36. 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.
D. Remaining Complaints
37. Under Articles 6 and 13 of the Convention, the applicant further complained about the fairness of the criminal proceedings. The Court finds that this part of the application does 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.
38. It follows that 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 21 June 2018.
Hasan Bakırcı Paul Lemmens
Deputy Registrar President
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