SECOND SECTION
\nCASE OF \u00d6ZCAN v. TURKEY
\n(Application no. 4728\/07)<\/p>\n
JUDGMENT
\nSTRASBOURG
\n10 July 2018<\/p>\n
This judgment is final but it may be subject to editorial revision.<\/p>\n
In the case of \u00d6zcan v. Turkey,<\/strong><\/p>\n The European Court of Human Rights (Second Section), sitting as a Committee composed of:<\/p>\n Paul Lemmens, 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 19 June 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. 4728\/07) 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 aTurkish national, Mr Hasan \u00d6zcan (\u201cthe applicant\u201d), on 12 January 2007.<\/p>\n 2.\u00a0\u00a0The applicant was represented by Mr F.N. Ertekin, Mr K.\u00d6zt\u00fcrk, and Ms.\u00a0F.\u00a0K\u0131l\u0131\u00e7g\u00fcn, lawyers practising in Istanbul. The Turkish Government (\u201cthe Government\u201d) were represented by their Agent.<\/p>\n 3.\u00a0\u00a0On 6 November 2009 the application was communicated to the Government.<\/p>\n 4.\u00a0\u00a0The Government objected to the examination of the application by a committee. After having considered the objection, the Court rejects it.<\/p>\n THE CIRCUMSTANCES OF THE CASE<\/strong><\/p>\n 5.\u00a0\u00a0The applicant, who was born in 1968, was detained at the Tekirda\u011f Prison at the time when the application was lodged.<\/p>\n 6.\u00a0\u00a0On 16 November 2005 the applicant was taken into custody.<\/p>\n 7.\u00a0\u00a0On 19 November 2005 the investigating judge ordered the applicant\u2019s detention on remand.<\/p>\n 8.\u00a0\u00a0On 22 November 2005 the applicant\u2019s lawyer lodged an objection against the detention order and requested his release. On 24 November 2005 the Istanbul Assize Court dismissed the objection, on the basis of the case file, without holding a hearing.<\/p>\n 9.\u00a0\u00a0Between 19 December 2005 and 6 October 2006, the applicant\u2019s pre\u2011trial detention was extended at regular intervals in view of the nature of the offenceand the state of the evidence, through examinations held by the Istanbul Assize Court ex propriomotu on the basis of the case file.<\/p>\n 10.\u00a0\u00a0On 15 November 2006 the applicant\u2019s lawyer filed an objection against the applicant\u2019s continued pre-trial detention. On 20 November 2006 the objection was dismissed by the Istanbul Assize Court without holding a hearing. On 7 December 2006 the applicant\u2019s lawyer filed a further objection and requested the court to hold a public hearing before deciding on the applicant\u2019s continued detention. On 8 December 2006 the Istanbul Assize Court dismissed the objection without holding a hearing.<\/p>\n 11.\u00a0\u00a0On 18 January 2007 the public prosecutor filed an indictment with the Istanbul Assize Court charging the applicant with attempting to undermine the constitutional order, an offence proscribed by Article 146\u00a7\u00a01 of the former Criminal Code.<\/p>\n 12.\u00a0\u00a0On 21 March 2007 the Istanbul Assize Court held its first hearing, at the end of which it ordered the applicant\u2019s continued detention. During the subsequent hearings, the court rejected the applicant\u2019s requests for release.<\/p>\n 13.\u00a0\u00a0On 4 May 2011 the Istanbul Assize Court convicted the applicant and sentenced him to eighteen years and nine months\u2019 imprisonment.<\/p>\n 14.\u00a0\u00a0On 25 September 2012 the Court of Cassation upheld the judgment of 4 May 2011.<\/p>\n THE LAW<\/strong><\/p>\n I.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 5 \u00a7 3 OF THE CONVENTION<\/p>\n 15.\u00a0\u00a0Relying on Article 5 \u00a7 3 of the Convention, the applicant complained that the length of his detention on remand had been excessive.<\/p>\n 16.\u00a0\u00a0The Government contested the claim and submitted that the applicant had failed to exhaust domestic remedies. In this connection they referred to the possibility of claiming compensation for unlawful detention under Article 141 \u00a7 1 (d) of the Code on Criminal Procedure (\u201cCCP\u201d).<\/p>\n 17.\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 Demir 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 18.\u00a0\u00a0In the case of Demir (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 19.\u00a0\u00a0In the instant case, the Court notes that the applicant\u2019s detention ended on 25 September 2012, when his conviction was upheld by the Court of Cassation. 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 20.\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 21.\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 22.\u00a0\u00a0The applicant complained that he did not have an effective remedy by which to challenge the lawfulness of hiscontinued detention, as provided in Article 5 \u00a7 4 of the Convention.<\/p>\n 23.\u00a0\u00a0The Government contested the claim.<\/p>\n 24.\u00a0\u00a0The Government maintained that the applicant had not exhausted domestic remedies, as required by Article 35 \u00a7 1 of the Convention.<\/p>\n 25.\u00a0\u00a0The Court observes that it has already examined and rejected a similar objection in the case of Karaosmano\u011flu and \u00d6zden v.\u00a0Turkey(no.\u00a04807\/08, \u00a7\u00a7 39-45, 17 June 2014). It sees no reason to depart from that finding.<\/p>\n 26.\u00a0\u00a0The Court notes that this part of the application is not manifestly ill\u2011founded within the meaning of Article 35 \u00a7 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.<\/p>\n 27.\u00a0\u00a0In the present case, the applicant was placed in detention on remand on 19 November 2005 and his next appearance before a judge was on 21\u00a0March 2007 during the first hearing of the Istanbul Assize Court.<\/p>\n 28.\u00a0\u00a0The Court reiterates that it has already examined a similar grievance in the case of Eri\u015fen and Others v. Turkey (no. 7067\/06, \u00a7 53, 3 April 2012) 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 29.\u00a0\u00a0There has therefore been a violation of Article 5 \u00a7 4 of the Convention under this head.<\/p>\n III.\u00a0\u00a0APPLICATION OF ARTICLE 41 OF THE CONVENTION<\/p>\n A.\u00a0\u00a0Damage<\/strong><\/p>\n 30.\u00a0\u00a0The applicant claimed 25,000 euros (EUR) in respect of non\u2011pecuniary damage and EUR 51,000 in respect of pecuniary damage.<\/p>\n 31.\u00a0\u00a0The Government contested those claims.<\/p>\n 32.\u00a0\u00a0The Court does not discern any causal link between the violation found and the pecuniary damage alleged, and it therefore rejects that claim. However, it considers that the applicant must have sustained non-pecuniary damage in connection with the violation of the Convention found in his case. Ruling on an 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 33.\u00a0\u00a0The applicant also claimed EUR 4,760 for costs and expenses incurred before the Court.<\/p>\n 34.\u00a0\u00a0The Government submitted that the claims for costs and fees were excessive and unsubstantiated.<\/p>\n 35.\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, the applicant lawyer submitted a receipt concerning the lawyer fee, a legal fee agreement, the Turkish Bar Association\u2019s list of recommended minimum fees and vouchers of postage in support of that claim. Having regard to these documents, the Court considers it reasonable to award the applicant EUR 1,000 under this head.<\/p>\n C.\u00a0\u00a0Default interest<\/strong><\/p>\n 36.\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\u00a0Declares the complaint under Article 5 \u00a7 4 of the Convention admissible and remainder of the application inadmissible;<\/p>\n 2.\u00a0\u00a0Holdsthat 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 750 (seven hundred and fifty euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;<\/p>\n (ii)\u00a0\u00a0EUR 1,000 (one thousand 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\u00a0Dismissesthe remainder of the applicant\u2019s claim for just satisfaction.<\/p>\n Done in English, and notified in writing on 10 July 2018, pursuant to Rule 77\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\u00a0\u00a0 Paul Lemmens
\nValeriu Gri\u0163co,
\nSt\u00e9phanie Mourou-Vikstr\u00f6m, judges,
\nand Hasan Bak\u0131rc\u0131, Deputy Section Registrar,<\/p>\n
\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\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n