SECOND SECTION<\/p>\n
DECISION<\/p>\n
Application no.32009\/11
\nEnis \u00dcNL\u00dc
\nagainst Turkey<\/p>\n
The European Court of Human Rights (Second Section), sitting on 22\u00a0January 2019 as a Committee composed of:<\/p>\n
Julia Laffranque, President,
\nValeriuGri\u0163co,
\nSt\u00e9phanieMourou-Vikstr\u00f6m, judges,
\nand Hasan Bak\u0131rc\u0131, Deputy Section Registrar,<\/p>\n
Having regard to the above application lodged on 23 February 2011,<\/p>\n
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,<\/p>\n
Having deliberated, decides as follows:<\/p>\n
THE FACTS<\/p>\n
1.\u00a0\u00a0The applicant, Mr Enis\u00dcnl\u00fc, is a Turkish national, who was born in\u00a01967 and lives in \u0130stanbul. He was represented before the Court by Mr\u00a0S.\u00a0T\u00fcrkdo\u011fru, a lawyer practising in Istanbul.<\/p>\n
2.\u00a0\u00a0The Turkish Government (\u201cthe Government\u201d) were represented by their Agent.<\/p>\n
A.\u00a0\u00a0The circumstances of the case<\/p>\n
3.\u00a0\u00a0The facts of the case, as submitted by the parties, may be summarised as follows.<\/p>\n
4.\u00a0\u00a0On 16 October 2006 the applicant, a police officer, was arrested and taken into custody.<\/p>\n
5.\u00a0\u00a0On 19 October 2006 the Bak\u0131rk\u00f6y Magistrates\u2019 Court ordered the applicant\u2019s detention on remand.<\/p>\n
6.\u00a0\u00a0On 25 January 2007 the public prosecutor filed an indictment with the \u0130stanbul Assize Court charging the applicant with, inter alia, forming an armed criminal organisation to gain illegal financial profit.<\/p>\n
7.\u00a0\u00a0On 19 April 2011 and 21 June 2011, respectively, the trial court ordered the continuation of the applicant\u2019s detention on remand and stated the reasons for prolongation.<\/p>\n
8.\u00a0\u00a0On 17 October 2011 the \u0130stanbul Assize Court ordered the applicant\u2019s release pending trial.<\/p>\n
9.\u00a0\u00a0According to the latest information in the case file, the criminal proceedings against the applicant were still pending as of July 2013.<\/p>\n
10.\u00a0\u00a0In the meantime, the applicant was dismissed from his post by a decision of the Disciplinary Board due to abuse of office and corruption.<\/p>\n
B.\u00a0\u00a0Relevant domestic law and practice<\/p>\n
11.\u00a0\u00a0A description of the relevant domestic law and practice concerning Article 5 \u00a7 3 can be found in A.\u015e v. Turkey (no. 58271\/10, \u00a7\u00a7 34-35, 13\u00a0September 2016), and \u015eefikDemir v. Turkey ((dec.), no. 51770\/07, \u00a7\u00a7\u00a029-33, 16 October 2012).<\/p>\n
12.\u00a0\u00a0Furthermore, 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.<\/p>\n
COMPLAINTS<\/p>\n
13.\u00a0\u00a0The 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 \u00a7 2 of the Code of Criminal Procedure (\u201cCCP\u201d), which had entered into force on 31 December 2010.<\/p>\n
14.\u00a0\u00a0The applicant complained under Article 5 \u00a7 3 of the Convention about the length of his detention on remand.<\/p>\n
15.\u00a0\u00a0The 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.<\/p>\n
THE LAW<\/p>\n
A.\u00a0\u00a0As regards the applicant\u2019s complaint under Article 5 \u00a7 1 of the Convention<\/p>\n
16.\u00a0\u00a0The 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 \u00a7 2 of the Code of Criminal Procedure (\u201cCCP\u201d), which entered into force on 31 December 2010.<\/p>\n
17.\u00a0\u00a0The Court notes that according to Article 102 \u00a7 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.<\/p>\n
18.\u00a0\u00a0In 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\u2019s 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\u2019s continued detention and ordered his immediate release pending trial. In view of the foregoing, the Court considers that the applicant\u2019s 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\u2019s detention on remand.<\/p>\n
19.\u00a0\u00a0It follows that this complaint is manifestly ill-founded and must be rejected pursuant to Article 35 \u00a7\u00a7 3 (a) and 4 of the Convention.<\/p>\n
B.\u00a0\u00a0As regards the applicant\u2019s complaint under Article 5 \u00a7 3 of the Convention<\/p>\n
20.\u00a0\u00a0The applicant complained under Article 5 \u00a7 3 of the Convention about the length of his detention on remand.<\/p>\n
21.\u00a0\u00a0The 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 (\u201cCCP\u201d).<\/p>\n
22.\u00a0\u00a0The Court observes that the domestic remedy in application of Article 141 \u00a7 1 (d) of the CCP with regard to length of detention on remand was examined in the cases of A.\u015e. v. Turkey (no. 58271\/10, \u00a7 85-95, 13\u00a0September 2016) and \u015eefikDemir v. Turkey, ((dec.), no. 51770\/07, \u00a7\u00a7\u00a017-35, 16 October 2012).<\/p>\n
23.\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 2015 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
24.\u00a0\u00a0In the instant case, the Court notes that the applicant\u2019s 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 \u00a7 1 (d) of the CCP. However, he failed to do so.<\/p>\n
25.\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 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.<\/p>\n
26.\u00a0\u00a0As a result, taking into account the Government\u2019s objection, the Court 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
C.\u00a0\u00a0Remaining Complaints<\/p>\n
27.\u00a0\u00a0As 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.<\/p>\n
28.\u00a0\u00a0Consequently, this part of the application should be rejected in accordance with Article 35 \u00a7 4 of the Convention.<\/p>\n
For these reasons, the Court, unanimously,<\/p>\n
Declares the application inadmissible.<\/p>\n
Done in English and notified in writing on 14 February 2019.<\/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 Julia Laffranque
\nDeputy Registrar\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