SECOND SECTION
DECISION
Application no. 41159/10
Murat ABLAY
against Turkey
The European Court of Human Rights (Second Section), sitting on 3 July 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 15 June 2010,
Having regard to the declaration submitted by the respondent Government on 7 September 2015 requesting the Court to strike the application out of the list of cases and the applicant’s reply to that declaration,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
1. The applicant, Mr Murat Ablay, is a Turkish national, who was born in 1981 and lives in Mardin. He was represented before the Court by Ms Y. Kavak Kılınç, a lawyer practising in Strasbourg.
2. The Turkish Government (“the Government”) were represented by their Agent.
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. On 4 March 2010 the applicant was arrested and taken into custody on suspicion of illegal drug trafficking.
5. On 5 March 2010 the applicant was placed in detention on remand.
6. On the same day the applicant’s lawyer filed an objection against the detention order and requested his release. On 9 March 2010 the İzmir Criminal Court of General Jurisdiction dismissed the objection, on the basis of the case file, without holding a hearing.
7. On 11 November 2010 the public prosecutor filed an indictment with the İzmir Assize Court charging the applicant with membership of an illegal organisation and illegal drug trafficking.
8. On 9 February 2011 the İzmir Assize Court held its first hearing, at the end of which it ordered the applicant’s continued detention. During the subsequent hearings, the court prolonged his detention on remand.
9. On 10 May 2012 the İzmir Assize Court convicted the applicant and sentenced him to six years and eight months’ imprisonment and a fine. On the same day, the applicant was released from detention on remand.
10. According to the latest information, the case is still pending before the Court of Cassation.
THE COMPLAINTS
11. The applicant complained under Article 5 § 3 of the Convention that the length of his pre-trial detention had exceeded the “reasonable time” requirement.
12. The applicant alleged under Article 5 § 4 of the Convention that he did not have an effective remedy to challenge the lawfulness of his detention. He complained about his inability to appear before the court when his pre-trial detention was reviewed.
13. The applicant also alleged a breach of his rights under Article 6 §§ 1 and 3 (a) of the Convention. He complained that he was not promptly notified of the charges against him.
14. The applicant further complained that the interception of his communications had been illegal and lacked proper authorisation, in violation of his Article 8 rights.
15. Finally, the applicant relied on Article 13, complaining of a lack of any remedy in respect of the alleged breaches of Articles 5, 6 and 8 of the Convention.
THE LAW
A. As regards the applicant’s complaint under Article 5 § 3 of the Convention
16. The applicant complained under Article 5 § 3 of the Convention that the length of his pre-trial detention had been excessive.
17. The 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 (“CCP”).
18. The Court observes that the domestic remedy in application of Article 141 § 1 (d) of the CCP with regard to length of detention on remand was examined in the cases of A.Ş. v. Turkey (no. 58271/10, § 85‑95, 13 September 2016) and Şefik Demir v. Turkey ((dec.), no. 51770/07, §§ 17-35, 16 October 2012).
19. In the case of Şefik 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.Ş. (cited above, § 92) that as of June 2015 the domestic remedy provided for in Article 141 § 1 (d) of the CCP had to be exhausted by the applicants even before the proceedings became final.
20. In the instant case, the Court notes that the applicant’s detention ended on 10 May 2012 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 § 1 (d) of the CCP. However, he failed to do so.
21. The 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 İçyer v. Turkey (dec.), no. 18888/02, § 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.
22. As a result, taking into account the Government’s objection, the Court concludes that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
B. As regards the applicant’s complaint under Article 5 § 4 of the Convention
23. The applicant alleged under Article 5 § 4 of the Convention that he did not have an effective remedy to challenge the lawfulness of his detention. He complained about his non-appearance before the court when his pre-trial detention was reviewed.
24. After the failure of attempts to reach a friendly settlement, by a letter of 7 September 2015 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.
The declaration provided as follows:
“The Government of Republic of Turkey hereby wishes to express by way of unilateral declaration its acknowledgement that the applicant’s right right to challenge lawfullnes of detention did not meet the standards enshrined in Article 5 § 4 of the Convention.
I declare that the Government accordingly offers to pay to Mr. Murat Ablay 900 (nine hundred) euros in total to cover any and all pecuniary and non‑pecuniary damage, as well as costs and expenses.
The Government therefore invites the Court to strike the present case out of the list of cases. It suggests that the present declaration might be accepted by the Court as “any other reason” justifying the striking out of the case of the Court’s list of cases, as referred to in Article 37 § 1 (c) of the Convention.
The above mentioned sum will be converted into Turkish Liras at the rate applicable on the date of payment, and will be payable within three months from the date of notification of the decision taken by the Court to strike the case out of its list of cases. In the event of failure to pay this sum within said three-month period, the Government undertakes to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The payment will constitute the final resolution of the case.”
25. The Court has not received a response from the applicant which accepts the terms of unilateral declaration.
26. The Court reiterates that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified, under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:
“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.
27. It also reiterates that in certain circumstances, it may strike out an application under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued.
28. To this end, the Court has examined the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (Tahsin Acar v. Turkey (preliminary objections) [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI; see also WAZA Sp. z o.o. v. Poland (dec.), no. 11602/02, 26 June 2007, and Sulwińska v. Poland (dec.), no. 28953/03, 18 September 2007).
29. The Court has established in a number of cases, including those brought against Turkey, its practice concerning complaints about the lack of an oral hearing in the proceedings to challenge the lawfulness of a detention (see, for example, Karaosmanoğlu and Özden v. Turkey, no. 4807/08, §§ 63-65, 17 June 2014).
30. Having regard to the nature of the admissions contained in the Government’s declaration, as well as the amount of compensation proposed – which is consistent with the amounts awarded in similar cases – the Court considers that it is no longer justified to continue the examination of the application (Article 37 § 1 (c)).
31. Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the application (Article 37 § 1 in fine).
32. The Court considers that this amount should be converted into currency of the respondent State at the rate applicable at the date of payment, and paid within three months from the date of notification of the Court’s decision issued in accordance with Article 37 § 1 of the European Convention on Human Rights. In the event of failure to settle within this period, simple interest shall be payable on the amount in question at a rate equal to the marginal lending rate of the European Central Bank plus three percentage points.
33. Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the application could be restored to the list in accordance with Article 37 § 2 of the Convention (Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008).
34. In view of the above, it is appropriate to strike the case out of the list.
C. Remaining complaints
35. As regards the remaining complaints raised under Articles 6, 8 and 13 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.
36. Consequently, this part of the application should be rejected in accordance with Article 35 § 4 of the Convention.
For these reasons, the Court, unanimously,
Takes note of the terms of the respondent Government’s declaration under Article 5 § 4 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;
Decides to strike that part of the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention.
Declares the application inadmissible.
Done in English and notified in writing on 6 September 2018.
Hasan BakırcıPaul Lemmens
Deputy RegistrarPresident
Full & Egal Universal Law Academy