SECOND SECTION
DECISION
Application no. 30495/11
Serkan ACAR
against Turkey
The European Court of Human Rights (Second Section), sitting on 27 September 2016 as a Committee composed of:
Paul Lemmens, President,
Ksenija Turković,
Jon Fridrik Kjølbro, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above application lodged on 23 December 2010,
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 Serkan Acar, is a Turkish national, who was born in 1978 and is detained in Istanbul.
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 5 October 2004 the applicant was arrested on suspicion of murder, attempted murder and assault.
5. On 13 October 2004 the Bakırköy Magistrates’ Court ordered the applicant’s pre-trial detention, having regard to the nature of the offence, and existing evidence in the case file.
6. On 13 December 2004 the Bakırköy Public Prosecutor filed an indictment against the applicant and his brother, accusing them of murder, an attempted murder and injury. In the first hearing, the applicant stated that his police statement had been taken under duress.
7. Between 7 March 2005 and 7 November 2012 the Bakırköy Assize Court held a total of twenty-six hearings and ordered the applicant’s continued detention having regard to the nature of the offence, severity of the envisaged penalty, the state of the evidence, and the fact that the applicant’s detention was also ordered in several other criminal proceedings against him.
8. On 7 November 2012 the applicant was convicted as charged and sentenced to imprisonment.
9. On 26 February 2014 the Court of Cassation quashed this judgment.
10. On 23 May 2014 the applicant’s trial resumed before the assize court and on 4 July 2014 he was convicted and sentenced to imprisonment.
11. This judgment was upheld by the Court of Cassation on 27 January 2016.
COMPLAINTS
12. The applicant complained under Article 3 of the Convention that he had been subjected to ill-treatment in police custody.
13. The applicant further maintained under Article 5 § 3 of the Convention that the length of his pre-trial detention had been excessive.
14. Finally, the applicant contended under Article 6 § 1 of the Convention that the criminal proceedings against him had not been concluded within a reasonable time.
THE LAW
A. As to Article 3 of the Convention
15. The applicant alleged under Article 3 of the Convention that he had been subjected to ill-treatment during his police custody.
16. In the light of all the material in its possession, the Court finds that the applicant’s submissions do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be declared inadmissible as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
B. As regards the applicant’s complaint under Article 5 § 3 of the Convention
17. The applicant contended under Article 5 § 3 of the Convention that the length of his detention on remand had been unreasonably long.
18. The 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 of the Code on Criminal Procedure (“CCP”).
19. The applicant did not comment on the Government’s objection.
20. The Court observes that the domestic remedy in application of Article 141 of the CPP with regard to length of detention on remand was examined in the case of Demir v. Turkey, ((dec.), no. 51770/07, §§ 17-35, 16 October 2012), where the Court held that that remedy had to be exhausted by the applicants whose convictions became final.
21. In the instant case, the Court notes that the applicant’s conviction became final on 27 January 2016. From that date onwards the applicant was entitled to seek compensation under Article 141 of the CPP (see Demir, cited above, § 35), but failed to do so.
22. 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.), 11929/12, 28 January 2014). The Court takes the view that the exception should be applied in the present case as well.
23. 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.
C. As regards the applicant’s complaint under Article 6 § 1 of the Convention
24. The applicant complained that the length of the criminal proceedings against him did not comply with the “reasonable time” requirement of Article 6 § 1 of the Convention.
25. The Government noted that pursuant to Law no. 6384 a new Compensation Commission had been established to deal with applications concerning the length of proceedings and the non‑execution of judgments. They maintained that the applicant had not exhausted domestic remedies, as he had not made any application to that Compensation Commission: this ground had also been recognized by the Court in its decision in the case of Turgut and Others ((dec.), no. 4860/09, 26 March 2013).
26. The applicant did not comment on the Government’s objection.
27. The Court observes that, as pointed out by the Government, a new domestic remedy has been established in Turkey following the application of the pilot judgment procedure in the case of Ümmühan Kaplan v. Turkey (no. 24240/07, 20 March 2012). Subsequently, in its decision in the case of Turgut and Others (cited above), the Court declared a new application inadmissible on the ground that the applicants had failed to exhaust domestic remedies once the new domestic remedy had come into being. In so doing, the Court considered in particular that this new remedy was a priori accessible and capable of offering a reasonable prospect of redress for complaints concerning the length of proceedings.
28. The Court notes that in its decision in the case of Ümmühan Kaplan (cited above, § 77) it stressed that it could nevertheless examine applications of this type which have already been communicated to the Government.
29. However, taking account of the Government’s preliminary objection with regard to the applicant’s failure to make use of the new domestic remedy established by Law no. 6384, the Court reiterates its conclusion in the case of Turgut and Others. It therefore concludes that there are no exceptional circumstances capable of exempting the present applicant from the obligation to exhaust domestic remedies.
30. It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non‑exhaustion of domestic remedies.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 20 October 2016.
Hasan BakırcıPaul Lemmens
Deputy RegistrarPresident
Full & Egal Universal Law Academy