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, Mr Cengiz Gürkan, 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), Şefik Demir 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 Şefik Demir 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