SECOND SECTION
\nCASE OF TA\u015ePINAR v. TURKEY
\n(Application no. 33683\/08)<\/p>\n
JUDGMENT
\nSTRASBOURG
\n11 December 2018<\/p>\n
This judgment is final but it may be subject to editorial revision.<\/p>\n
In the case of Ta\u015fp\u0131nar v. Turkey,<\/strong><\/p>\n The European Court of Human Rights (Second Section), sitting as a Committee composed of:<\/p>\n Julia Laffranque, President, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,<\/p>\n Having deliberated in private on 20 November 2018,<\/p>\n Delivers the following judgment, which was adopted on that date:<\/p>\n PROCEDURE<\/strong><\/p>\n 1.\u00a0\u00a0The case originated in an application (no. 33683\/08) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by a Turkish national, Mr Caner Ta\u015fp\u0131nar (\u201cthe applicant\u201d), on 4 July 2008.<\/p>\n 2.\u00a0\u00a0The applicant was represented by Ms H. Y\u0131lmaz Kayar, a lawyer practising in Istanbul. The Turkish Government (\u201cthe Government\u201d) were represented by their Agent.<\/p>\n 3.\u00a0\u00a0On 20 October 2009the application was declared partly inadmissible and the complaints concerning the length of the applicant\u2019s pre-trial detention, as well as the effectiveness of the procedure by which the applicant could challenge the lawfulness of his detention and the length of the criminal proceedings initiated against him were communicated to the Government.<\/p>\n THE FACTS<\/strong><\/p>\n I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE<\/p>\n 4.\u00a0\u00a0The applicant was born in 1990 and lives in Istanbul.<\/p>\n 5.\u00a0\u00a0On 28 August 2007 the applicant was arrested on suspicion of child molestation and on the same day he was brought before a judge at the Gaziosmanpa\u015fa Juvenile Court, who placed him in detention on remand.<\/p>\n 6.\u00a0\u00a0On 3 September 2007 the applicant filed an objection against the decision on his detention. On 18 September 2007 the Beyo\u011flu Juvenile Assize Court dismissed his objection on the basis of the case file, without holding a hearing.<\/p>\n 7.\u00a0\u00a0On 23 October 2007 and 19 November 2007 the Gaziosmanpa\u015fa Magistrates\u2019 Court prolonged the applicant\u2019s detention ex officio.<\/p>\n 8.\u00a0\u00a0On 16 December 2007 the Bak\u0131rk\u00f6y public prosecutor filed an indictment with the Bak\u0131rk\u00f6y Juvenile Assize Court, charging the applicant with child molestation.<\/p>\n 9.\u00a0\u00a0On 31 December 2007 the Bak\u0131rk\u00f6y Juvenile Assize Court ordered the continuation of the applicant\u2019s pre-trial detention on the basis of the case file, and decided that it had no jurisdiction ratione loci and that the case should be heard by the Beyo\u011flu Juvenile Assize Court and referred the case file to the latter.<\/p>\n 10.\u00a0\u00a0On 24 January 2008 the Beyo\u011flu Juvenile Assize Court declared itself incompetentrationelocias well and sent the case file to the Court of Cassation to render its decision on the conflict of jurisdictionratione loci. On the same date the court also ordered the continuation of the applicant\u2019s pre-trial detention on the basis of the case file.<\/p>\n 11.\u00a0\u00a0On 30 January 2008 the applicant filed an objection against the decision on the continuation of his pre-trial detention. On 14February 2008 the Bak\u0131rk\u00f6y Juvenile Assize Court dismissed his objection on the basis of the case file, without holding a hearing.<\/p>\n 12.\u00a0\u00a0On 23 June 2008 the Court of Cassation gave its decision authorising Bak\u0131rk\u00f6y Juvenile Assize Court over the case.<\/p>\n 13.\u00a0\u00a0On 13 August 2008 the trial court held a preparatory hearing and ordered the continuation of the applicant\u2019s detention on the basis of the case file. On 12 September 2008 and 9 October 2008, respectively, the court ex\u00a0officioexamined the applicant\u2019s detention on remand on the basis of the case-file and decided to extend it.<\/p>\n 14.\u00a0\u00a0On 30 October 2008 the court held its first hearing, in which both the applicant and his lawyer were present. At the end of that hearing, the court ordered the continuation of the applicant\u2019s detention.<\/p>\n 15.\u00a0\u00a0During the hearings held on 21 January 2009, 14 April 2009 and 21\u00a0July 2009, at which the applicant was present, the trial court ordered the continuation of the applicant\u2019s detention on remand.Between the hearings, which were held with regular intervals of one month, the court ex\u00a0officio examined the applicant\u2019s detention on remand on the basis of the case\u2011file and decided to extend it<\/p>\n 16.\u00a0\u00a0On 3 November 2009, at the end of the fifth hearing before the court, the applicant was released pending trial.<\/p>\n 17.\u00a0\u00a0According to the latest information in the case file, the criminal proceedings against the applicant were still pending.<\/p>\n II.\u00a0\u00a0RELEVANT DOMESTIC LAW AND PRACTICE<\/p>\n 18.\u00a0\u00a0A description of the relevant domestic law and practice can be found in A.\u015e. v. Turkey (no. 58271\/10, \u00a7 34-35, 13 September 2016);Alt\u0131nok v.\u00a0Turkey (no. 31610\/08, \u00a7\u00a7 28-32, 29\u00a0November 2011); and Turgut and Others v. Turkey ((dec.), no. 4860\/09, \u00a7\u00a7 19-26, 26 March 2013).<\/p>\n THE LAW<\/strong><\/p>\n I.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 5 \u00a7 3 OF THE CONVENTION<\/p>\n 19.\u00a0\u00a0Relying on Article 5 \u00a7 3 of the Convention, the applicant complained that the length of his detention on remand had been excessiveand that the domestic courts had used identical, stereotyped reasoning when prolonging his detention.<\/p>\n 20.\u00a0\u00a0The Government rejected the allegation, submitting that the applicant had failed to exhaust domestic remedies, referring to the possibility of claiming compensation for unlawful detention under Article\u00a0141 \u00a7 1 (d) of the Code on Criminal Procedure (\u201cCCP\u201d).<\/p>\n 21.\u00a0\u00a0The Court observes that the domestic remedy in application of Article\u00a0141 \u00a7 1 (d) of the CCP with regard to length of detention on remand was examined in the cases of \u015eefikDemir v. Turkey, ((dec.), no.\u00a051770\/07, \u00a7\u00a7\u00a017\u201135, 16 October 2012), and A.\u015e. v. Turkey (no. 58271\/10, \u00a7\u00a7\u00a085\u201195, 13\u00a0September 2016).<\/p>\n 22.\u00a0\u00a0In the case of \u015eefikDemir (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.\u015e. (cited above, \u00a7 92) that as of June\u00a02015, the domestic remedy provided for in Article 141 \u00a7 1 (d) of the CCP had to be exhausted by the applicants even before the proceedings became final.<\/p>\n 23.\u00a0\u00a0In the instant case, the Court notes that the applicant\u2019s detention ended on 3 November 2009, when he was released from detention on remand, yet there is no information about whether the proceedings against him are still pending or have become final. The Court therefore observes that the applicant was entitled to seek compensation under Article\u00a0141 \u00a7\u00a01\u00a0(d) of the CCP and that he must do so.<\/p>\n 24.\u00a0\u00a0The 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 \u0130\u00e7yer v.\u00a0Turkey (dec.), no. 18888\/02, \u00a7 72, ECHR 2006\u2011I). 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.<\/p>\n 25.\u00a0\u00a0As a result, taking into account the Government\u2019s objection, the Court concludes that this complaint must be rejected under Article 35 \u00a7\u00a7\u00a01 and\u00a04 of the Convention for non-exhaustion of domestic remedies.<\/p>\n II.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 5 \u00a7 4 OF THE CONVENTION<\/p>\n 26.\u00a0\u00a0The applicant alleged under Articles 5 and 13 of the Convention that he did not have an effective remedy to challenge the unlawfulness of his detention. In this connection, he complained about his inability to appear before the courts when his pre-trial detention was reviewed.<\/p>\n 27.\u00a0\u00a0The Court considers that the applicant\u2019s complaint under Article\u00a013 should be examined from the standpoint of Article 5 \u00a7 4 of the Convention, being the lexspecialis in the matter (see Do\u011fan and Kal\u0131n v.\u00a0Turkey, no.\u00a01651\/05, \u00a7 15, 21 December 2010).<\/p>\n 28.\u00a0\u00a0The Government contested that argument.<\/p>\n 29.\u00a0\u00a0The Court notes that this complaint is not manifestly ill\u2011founded within the meaning of Article 35 \u00a7 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.<\/p>\n 30.\u00a0\u00a0In the present case, the applicant was placed in pre-trial detention on 28\u00a0August 2007 and his next appearance before a judge was on 30 October 2008, which wasthe first hearing before the Bak\u0131rk\u00f6y Juvenile Court.<\/p>\n 31.\u00a0\u00a0The Court reiterates that it has already examined a similar grievance in the cases of Eri\u015fen and Others v. Turkey (no. 7067\/06, \u00a7 53, 3\u00a0April 2012) and Karaosmano\u011flu and \u00d6zden (no. 4807\/08, \u00a7 76, 17 June 2014), and found a violation of Article 5 \u00a7 4. It has examined the present case and finds no particular circumstances which would require it to depart from its findings in the above-mentioned judgments.<\/p>\n 32.\u00a0\u00a0There has therefore been a violation of Article 5 \u00a7 4 of the Convention under this head.<\/p>\n III.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 6 \u00a7 1 OF THE CONVENTION<\/p>\n 33.\u00a0\u00a0The applicant complained that the length of the criminal proceedings had been incompatible with the \u201creasonable time\u201d requirement laid down in Article\u00a06 \u00a7 1 of the Convention.<\/p>\n 34.\u00a0\u00a0The 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 as the applicant should apply to the Compensation Commission.<\/p>\n 35.\u00a0\u00a0The Court observes that, a new domestic remedy has been established in Turkey following the application of the pilot judgment procedure in the case of \u00dcmm\u00fchan Kaplan v. Turkey (no.\u00a024240\/07, 20\u00a0March 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.<\/p>\n 36.\u00a0\u00a0The Court notes that in its judgment in the case of \u00dcmm\u00fchan Kaplan (cited above, \u00a7 77) it stressed that it could nevertheless examine, under its normal procedure, applications of this type which had already been communicated to the Government.<\/p>\n 37.\u00a0\u00a0However, taking account of the Government\u2019s preliminary objection with regard to the applicant\u2019s failure to make use of the domestic remedy established by Law no. 6384, the Court reiterates its conclusion in the case of Turgut and Others(cited above).<\/p>\n 38.\u00a0\u00a0It therefore concludes that this part of the application must be rejected under Article 35 \u00a7\u00a7 1 and 4 of the Convention for non-exhaustion of domestic remedies.<\/p>\n IV.\u00a0\u00a0APPLICATION OF ARTICLE 41 OF THE CONVENTION<\/p>\n A.\u00a0\u00a0Damage<\/strong><\/p>\n 39.\u00a0\u00a0The applicant claimed 100,000 Euros (EUR) in respect of non\u2011pecuniary damage.<\/p>\n 40.\u00a0\u00a0The Government contested that claim.<\/p>\n 41.\u00a0\u00a0The Court considers that the applicant must have sustained non\u2011pecuniary damage in connection with the violation of the Convention found in his case. Ruling on equitable basis, it awards EUR 750 to the applicant in respect of non-pecuniary damage.<\/p>\n B.\u00a0\u00a0Costs and expenses<\/strong><\/p>\n 42.\u00a0\u00a0The applicant also claimed 11,500 Turkish liras (TRY) (approximately EUR 2,260) in respect of lawyer\u2019s fees. In that connection, he submitted a legal fee agreement.<\/p>\n 43.\u00a0\u00a0The Government contested the claim.<\/p>\n 44.\u00a0\u00a0According to the Court\u2019s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, having regard to the documents in its possession and the above criteria, the Court considers it reasonable to award the applicant EUR 500under this head.<\/p>\n C.\u00a0\u00a0Default interest<\/strong><\/p>\n 45.\u00a0\u00a0The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.<\/p>\n FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/strong><\/p>\n 1.\u00a0\u00a0Declaresthe complaint under Article 5 \u00a7 4 of the Convention admissible and remainder of the application inadmissible;<\/p>\n 2.\u00a0\u00a0Holds that there has been a violation of Article 5 \u00a7 4 of the Convention on account of the non-appearance of the applicant before a court in the proceedings to challenge the lawfulness of his continued detention;<\/p>\n 3.\u00a0\u00a0Holds<\/p>\n (a)\u00a0\u00a0that the respondent State is to pay the applicant, within three months the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:<\/p>\n (i)\u00a0\u00a0EUR\u00a0750 (seven hundred and fifty euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;<\/p>\n (ii)\u00a0\u00a0EUR\u00a0500 (five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;<\/p>\n (b)\u00a0\u00a0that from the expiry of the abovementioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points<\/p>\n 4.\u00a0\u00a0Dismisses the remainder of the applicant\u2019s claim for just satisfaction.<\/p>\n Done in English, and notified in writing on 11 December 2018, pursuant to Rule77\u00a7\u00a72 and 3 of the Rules of Court.<\/p>\n Hasan Bak\u0131rc\u0131\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Julia Laffranque
\nValeriuGri\u0163co,
\nSt\u00e9phanie Mourou-Vikstr\u00f6m, judges,
\nand Hasan Bak\u0131rc\u0131, Deputy Section Registrar,<\/p>\n
\nDeputyRegistrar\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n