SECOND SECTION<\/p>\n
DECISION<\/p>\n
Application no.58309\/10
\nAd\u0131l \u00c7ELIKBA\u015e
\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 10 July 2010,<\/p>\n
Having regard to the decision of 23 January 2012,<\/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, MrAdil\u00c7elikba\u015f, is a Turkish national, who was born in 1955 and lives in \u0130stanbul. He was represented before the Court by Ms\u00a0Z.\u00a0\u00d6. Kartal, a lawyer practising in \u0130stanbul.<\/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 25 March 2009 the applicant was arrested and taken into custody on suspicion of illegal drug trafficking.<\/p>\n
5.\u00a0\u00a0On 26 March 2009 the judge at the \u0130stanbul Assize Court decided to restrict access to the investigation file, under Article 153 \u00a7 2 of the Code of Criminal Procedure (the \u201cCCP\u201d), Law no. 5271.<\/p>\n
6.\u00a0\u00a0On 28 March 2009 the applicant was interrogated by the police at the\u00a0Narcotics Branch\u00a0of the \u0130stanbul Security Directorate, in the presence of his lawyer. The applicant was informed of the on-going investigation into a criminal organisation formed for illegal drug trafficking. The police read out the names who were arrested or still under arrest warrant within the context of this investigation. Subsequently, he was questioned about his alleged involvement in this organisation. The applicant refused to answer the question stating that he would give his statement before a public prosecutor or a judge.<\/p>\n
7.\u00a0\u00a0On 29 March 2009 the public prosecutor took the statement of the applicant, in the presence of his lawyer. He was once again informed of the allegations against him. The public prosecutor questioned the applicant whether he knew the head of the criminal organisation or not, and read out the transcripts of the intercepted conversations between the applicant and the head of this organisation. The applicant did not deny that he had these conversations but claimed that the head of the organisation had been his relative and that he had lent money to him previously. He further claimed that the conversations were made with the intention to take his owed money back from him. He added that he had not known the other accused.<\/p>\n
8.\u00a0\u00a0On the same day the applicant was questioned by the judge at the \u0130stanbul Assize Court, who ordered his detention on remand, in the presence of his lawyer. Before the judge he repeated his earlier statement.<\/p>\n
9.\u00a0\u00a0On 3 April 2009 the applicant\u2019s lawyer filed an objection against the decision on the applicant\u2019s detention and requested his release. On 15\u00a0April 2009 the 11th Chamber of the \u0130stanbul Assize Court dismissed the objection on the basis of the case file, without holding a hearing.<\/p>\n
10.\u00a0\u00a0On 28 April 2009 the Assize Court ex officio examined the applicant\u2019s detention on remand on the basis of the case-file and decided to extend it. On 4 May 2009 the applicant\u2019s lawyer filed a further objection against this decision. On 1 June 2009 the Assize Court dismissed the objection on the basis of the case file, without holding a hearing.<\/p>\n
11.\u00a0\u00a0On 28 May 2009 and 19 June 2009, respectively, the Assize Court ex officio prolonged the applicant\u2019s detention on remand.<\/p>\n
12.\u00a0\u00a0On 23 June 2009 the \u0130stanbul public prosecutor filed an indictment with the \u0130stanbul Assize Court, charging the applicant with membership of a criminal organisation and illegal drug trafficking.<\/p>\n
13.\u00a0\u00a0On 1 July 2009 the \u0130stanbul Assize Court accepted the indictment and at the end of the preparatory hearing decided to prolong the applicant\u2019s detention on the basis of case-file. On the same day the restriction on the file was lifted.<\/p>\n
14.\u00a0\u00a0On 28 July 2009 the applicant\u2019s lawyer filed an objection against the decision on the continuation of the applicant\u2019s detention and requested his release. On 4 August 2009 the 14th Chamber of the \u0130stanbul Assize Court dismissed the objection on the basis of the case file, without holding a hearing.<\/p>\n
15.\u00a0\u00a0On 3 August 2009 the Assize Court ex officio prolonged the applicant\u2019s detention on remand.<\/p>\n
16.\u00a0\u00a0On 11 November 2009, the Assize Court held its first hearing, at the end of which it ordered the applicant\u2019s continued detention. Subsequently, the applicant\u2019s lawyer filed an objection against this decision and requested his release. On 2 December 2009 the 9th Chamber of the \u0130stanbul Assize Court dismissed the objection on the basis of the case file, without holding a hearing.<\/p>\n
17.\u00a0\u00a0On 11 December 2009, 4 January 2010 and 3 February 2010, respectively, the Assize Court ex officioexamined the applicant\u2019s detention on remand on the basis of the case-file and decided to extend it.<\/p>\n
18.\u00a0\u00a0On 12 March 2010, the Assize Court held its second hearing, at the end of which it ordered the applicant\u2019s continued detention. Subsequently, the applicant\u2019s lawyer filed an objection against this decision and requested his release. On 26 March 2010 the 9th Chamber of the \u0130stanbul Assize Court dismissed the objection on the basis of the case file, without holding a hearing.<\/p>\n
19.\u00a0\u00a0On 18 June 2010 and 20 October 2010 the court held further hearings at the end of which it rejected the applicant\u2019s requests for release. In this period the Assize Court ex officio examined the applicant\u2019s detention on remand on the basis of the case-file and decided to extend it several times.<\/p>\n
20.\u00a0\u00a0On 14 November 2010 the Assize Court ex officio prolonged the applicant\u2019s detention on remand. On 22 November 2010, the applicant\u2019s lawyer filed an objection against this decision and requested his release. On 30 November 2010 the 14th Chamber of the \u0130stanbul Assize Court dismissed the objection on the basis of the case file, without holding a hearing.<\/p>\n
21.\u00a0\u00a0In the remainder of the proceedings, the court examined the applicant\u2019s continued detention either at the end of each hearing or between the hearings, ex officio.<\/p>\n
22.\u00a0\u00a0On 22 April 2011 the \u0130stanbul Assize Court convicted the applicant as charged and sentenced him to eight years and nine months\u2019 imprisonment and a fine. The court ordered the continuation of his detention.<\/p>\n
23.\u00a0\u00a0On 3 April 2013 the Court of Cassation quashed the judgment stating that there was no\u00a0sufficient evidence\u00a0establishing that he had committed the offences concerned and ordered the applicant\u2019s release. Accordingly, the case file was remitted to the first instance court.<\/p>\n
24.\u00a0\u00a0On 23 October 2013 the \u0130stanbul Assize Court acquitted the applicant of all the charges against him. There is no information in the case file the decision of the first instance court has become final or not.<\/p>\n
B.\u00a0\u00a0Relevant domestic law and practice<\/p>\n
25.\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) and Alt\u0131nok v.\u00a0Turkey (no. 31610\/08, \u00a7\u00a7 28-32, 29\u00a0November 201).<\/p>\n
COMPLAINTS<\/p>\n
26.\u00a0\u00a0The applicant relied on Article 5 \u00a7 3 of the Convention and complained that the length of his detention on remand had been excessive and that the domestic courts had used identical, stereotyped reasoning when prolonging his detention.<\/p>\n
27.\u00a0\u00a0Relying on Articles 5 \u00a7 4 and 13 of the Convention, the applicant complained about not being able to appear before the courts when his detention was reviewed and lack of an effective remedy to challenge the unlawfulness of his detention on account of the restriction placed on his access to the investigation file.<\/p>\n
28.\u00a0\u00a0The applicant further complained that the interception of his communications had been illegal and lacked proper authorisation, in violation of his Article 8 rights.<\/p>\n
THE LAW<\/p>\n
A.\u00a0\u00a0As regards the applicant\u2019s complaint under Article 5 \u00a7 3 of the Convention<\/p>\n
29.\u00a0\u00a0Relying on Article 5 \u00a7 3 of the Convention, the applicant complained that the length of his detention on remand had been excessive and that the domestic courts had used identical, stereotyped reasoning when prolonging his detention.<\/p>\n
30.\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 141 \u00a7 1 (d) of the Code on Criminal Procedure (“CCP”).<\/p>\n
31.\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 \u015eefikDemir v. Turkey, ((dec.), no.\u00a051770\/07, \u00a7\u00a7 17-35, 16 October 2012), and A.\u015e. v. Turkey (no. 58271\/10, \u00a7\u00a7\u00a085\u201195, 13\u00a0September 2016).<\/p>\n
32.\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
33.\u00a0\u00a0In the instant case, the Court notes that the applicant\u2019s detention on remand ended on 22 April 2011 with his conviction by the \u0130stanbul Assize Court. However, on 3 April 2013 the Court of Cassation quashed this judgment and ordered the applicant\u2019s release. Accordingly, on 23\u00a0October 2013 the applicant was acquitted of all the charges brought against him, yet there is no information about whether the acquittal decision has become final or not. The Court therefore observes that the applicant was entitled to seek compensation under Article 141 \u00a7 1 (d) of the CCP and that he must do so.<\/p>\n
34.\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
35.\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\u00a0\u00a7\u00a7 1 and 4 of the Convention for non-exhaustion of domestic remedies.<\/p>\n
B.\u00a0As regards the applicant\u2019s complaint under Article 5 \u00a7 4 of the Convention<\/p>\n
36.\u00a0\u00a0Relying on Articles 5 \u00a7 4 and 13 of the Convention, the applicant complained about not being able to appear before the courts when his detention was reviewed and lack of an effective remedy to challenge the unlawfulness of his detention on account of the restriction placed on his access to the investigation file.<\/p>\n
37.\u00a0\u00a0The Court considers that the applicant\u2019s complaints 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
1.\u00a0\u00a0Concerning the applicant\u2019s inability to be present before the appeal court examining the objections to his detention<\/p>\n
38.\u00a0\u00a0Relying on Article 5 \u00a7 4 of the Convention, the applicant complained about not being able to appear before the court when his detention was reviewed.<\/p>\n
39.\u00a0\u00a0The Government contested these arguments.<\/p>\n
40.\u00a0\u00a0As to the applicant\u2019s complaint regarding the appeal courts\u2019 decisions dated 15 April 2009, 1 June 2009, 4 August 2009, and 2\u00a0December 2009, respectively, dismissing his objections against the prolongation of his detention on the basis of case file, the Court notes that the present application was lodged with the Court on 10 July 2010. Consequently, this part of the application has been introduced out of time and must be rejected pursuant to Article 35 \u00a7\u00a7 3 and 4 of the Convention.<\/p>\n
41.\u00a0\u00a0The Court further observes that at the end of the hearings held 12\u00a0March 2010 and 20 October 2010, the \u0130stanbul Assize Court decided on the continuation of the applicant\u2019s detention. Both the applicant and his lawyer were present in these hearings. On 14 November 2010 the court once again ex officio examined the applicant\u2019s detention on remand on the basis of the case-file and decided to extend it. The applicant filed objections against these decisions on 18 March 2010 and 22 November 2010, respectively.<\/p>\n
42.\u00a0\u00a0The Court notes that these objections were dismissed on 26\u00a0March 2010 and 30 November 2010, respectively, by the appeal court, without holding an oral hearing. Nevertheless, the applicant had appeared before the trial court fourteen days and forty days, respectively, before his objection was examined. In these circumstances, the Court does not consider that a further oral hearing before the appeal court was required for the purposes of Article 5 \u00a7 4.<\/p>\n
43.\u00a0\u00a0The Court thus concludes that the lack of an oral hearing during the proceedings did not jeopardise the principle of equality of arms (see Alt\u0131nok v.\u00a0Turkey, no. 31610\/08, \u00a7\u00a7 54-55, 29 November 2011, and AdemSerkanG\u00fcndo\u011fdu v. Turkey, no. 67696\/11, \u00a7\u00a7 35-48. 16 January 2018).<\/p>\n
44.\u00a0\u00a0It follows that this part of the application is manifestly ill\u2011founded and must be rejected in accordance with Article 35 \u00a7\u00a7 3 and 4 of the Convention.<\/p>\n
2.\u00a0\u00a0Concerning the restriction of access to the investigation file<\/p>\n
45.\u00a0\u00a0The applicant complained that on account of the restriction placed on his access to the investigation file, he had not been able to challenge the evidence which had been the grounds for the decision to detain him on remand.<\/p>\n
46.\u00a0\u00a0The Government contested that argument.<\/p>\n
47.\u00a0\u00a0The Court observes that people who have been arrested or detained are entitled to a review bearing upon the procedural and substantive conditions which are essential for the \u201clawfulness\u201d, in the sense of the Convention, of their deprivation of liberty. A court examining an appeal against detention must provide guarantees of a judicial procedure. The proceedings must be adversarial and must always ensure \u201cequality of arms\u201d between the parties, the prosecutor and the detained person (see Ceviz v.\u00a0Turkey, no. 8140\/08, \u00a7 41, 17 July 2012).<\/p>\n
48.\u00a0\u00a0In the instant case, the Court notes that on 26 March 2009 the judge at the \u0130stanbul Assize Court decided to restrict access to the investigation file to ensure proper conduct of the investigation. However, on 28 and 29\u00a0March 2009, the applicant was questioned, in the presence of his lawyer, by the police and later by both the public prosecutor and the judge at the \u0130stanbul Assize Court about his telephone conversations intercepted by the authorities and which were considered as part of the evidence of the offence of which the applicant was a suspect. In his statements before the public prosecutor and the judge the applicant did not deny the intercepted conversations but claimed that the conversations were made with the intention to take his owed money back from his relative who had been allegedly the head of the criminal organisation.<\/p>\n
49.\u00a0\u00a0In the light of the foregoing, the Court considers that both the applicant and his lawyer had sufficient knowledge of the content of the investigation file and that they had the opportunity to challenge the pre-trial detention order (see Ceviz, cited above, \u00a7\u00a7 41-44; Karaosmano\u011flu and \u00d6zden, no. 4807\/08, \u00a7 74, 17 June 2014; and Aybo\u011fa and Others v.\u00a0Turkey, no.\u00a035302\/08, \u00a7 17, 21 June 2016).<\/p>\n
50.\u00a0\u00a0The Court concludes that this part of the application is manifestly ill\u2011founded and must be rejected, pursuant to Article 35 \u00a7\u00a7 3 (a) and 4 of the Convention.<\/p>\n
C.\u00a0\u00a0Remaining complaints<\/p>\n
51.\u00a0\u00a0As regards the remaining complaint raised under Article 8 of the Convention, the Court notes that the case file does not contain any document in the case file showing that the applicant submitted this complaint before the domestic courts. The Court therefore concludes that this complaint must be rejected under Article 35 \u00a7\u00a7 1 and 4 of the Convention for non-exhaustion of domestic remedies.<\/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","protected":false},"excerpt":{"rendered":"
SECOND SECTION DECISION Application no.58309\/10 Ad\u0131l \u00c7ELIKBA\u015e against Turkey The European Court of Human Rights (Second Section), sitting on 22\u00a0January 2019 as a Committee composed of: Julia Laffranque, President, ValeriuGri\u0163co, St\u00e9phanieMourou-Vikstr\u00f6m, judges, and Hasan Bak\u0131rc\u0131, Deputy Section Registrar, Having regard…<\/p>\n