SECOND SECTION
DECISION
Application no. 32969/11
Kerim CÜRE
against Turkey
The European Court of Human Rights (Second Section), sitting on 17 October 2017 as a Committee composed of:
Ledi Bianku, President,
Valeriu Griţco,
Stéphanie Mourou-Vikström, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above application lodged on 7 February 2011,
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 Kerim Cüre, is a Turkish national, who was born in 1972 and detained in Istanbul. He was represented before the Court by Mr M. İnan, a lawyer practising in Istanbul.
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 6 June 2006 the applicant was placed in detention on remand on suspicion of attempted homicide.
5. On 24 August 2006 the Bakırköy public prosecutor filed a bill of indictment with the Bakırköy Assize Court charging the applicant with the offence of attempted homicide.
6. On 14 December 2007 the Bakırköy Assize Court convicted the applicant and sentenced him to 14 years and 6 months’ imprisonment. The Assize Court further ordered the applicant’s continued detention.
7. On 11 November 2009 the Court of Cassation quashed this judgment. The case file was accordingly remitted to the Bakırköy Assize Court.
8. On 11 October 2010 the Bakırköy Assize Court once again convicted the applicant. The court also ordered the continuation of the applicant’s detention.
9. On 18 January 2011 the Court of Cassation upheld the first-instance court’s judgment and it became final.
B. Relevant domestic law and practice
10. A description of the relevant domestic law and practice can be found in Demir v. Turkey ((dec.), no. 51770/07 §§ 29-33, 16 October 2012).
COMPLAINTS
11. Relying on Article 3 of the Convention, the applicant complained that the conditions of the prison where he had been held during the first year of his detention had amounted to ill-treatment.
12. The applicant complained under Article 5 § 3 of the Convention that the length of his pre-trial detention had been excessive and that the first-instance court had ordered the continuation of his detention by using stereotyped wording.
13. Relying on Article 5 § 4 of the Convention, the applicant complained that there had been no effective remedy provided by the domestic legal system whereby he could effectively challenge his continued pre-trial detention on account of non-communication of the public prosecutor’s written opinions to him or to his representative.
14. The applicant finally maintained under Article 6 § 2 of the Convention that his right to presumption of innocence had been breached as he had been kept in a prison where there were mostly convicted prisoners.
THE LAW
A. Article 5 § 3 of the Convention
15. The Government maintained that the applicant had not exhausted domestic remedies: as the first-instance court’s judgment against him had become final, the applicant should have sought compensation before the domestic courts pursuant to Article 141 of the Code on Criminal Procedure.
16. The Court recalls that in its decision in the case of Demir v. Turkey (no. 51770/07, §§ 17-35, 16 October 2012), it declared the applicant’s complaint under Article 5 § 3 of the Convention inadmissible for non‑exhaustion of domestic remedies.
17. In the instant case, the Court observes that the applicant’s detention on remand ended on 11 October 2010 with his conviction by the Bakırköy Assize Court. On 18 January 2011, this decision became final with the decision of the Court of Cassation (see paragraph 9 above). From that date onwards, the applicant could have sought compensation pursuant to Article 141 of the Code of Criminal Procedure (see Demir, cited above, § 35), but he failed to do so.
18. 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, 12 January 2006). 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.
19. As a result, taking into account the Government’s preliminary 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. Remaining Complaints
20. As regards the remaining complaints, the Court holds that in the light of the material in its possession and in so far as the matters complained of are within its competence, these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
21. It follows that this part of the application is manifestly ill‑founded and must be rejected in accordance with the Article 35 § 3 and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 16 November 2017.
Hasan BakırcıLedi Bianku
Deputy RegistrarPresident
Full & Egal Universal Law Academy