SECOND SECTION
DECISION
Application no. 30182/10
Salih ERDOĞU
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 May 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 Salih Erdoğu, is a Turkish national, who was born in 1953 and is currently serving his prison sentence. He was represented before the Court by Mr A. Sürücü, a lawyer practising in Izmir.
2. The Turkish Government (“the Government”) were represented by their Agent.
The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. On 21 September 2008 the applicant was arrested on suspicion of child molestation and on 22 September 2008 he was placed in detention on remand.
5. Criminal proceedings were initiated against the applicant with the indictment of the İzmir Public Prosecutor on 30 October 2008, and until his conviction on 1 April 2010 several hearings were held before the İzmir Assize Court.
6. During each hearing the trial court examined the applicant’s continued detention. Having regard to the nature of the offence, the risk of absconding and the severity of the envisaged penalty, it ordered the continuation of the applicant’s detention.
7. In particular, following the hearing of 4 March 2010, to which the applicant had attended, he filed an objection against his detention. On 10 March 2010 his objection was dismissed on the basis of the case file.
8. On 1 April 2010 the applicant was convicted and sentenced to a total of forty three years and eight months’ imprisonment.
9. The applicant appealed.
10. After holding a hearing, on 17 February 2011 the Court of Cassation upheld the judgment of the İzmir Assize Court.
COMPLAINTS
11. The applicant complained under Article 5 § 3 of the Convention about the length of his detention on remand. Under Article 5 § 4 of the Convention, he also alleged that he had no effective remedy. In this connection, he also relied on Article 13 of the Convention.
12. Under Article 5 § 5 of the Convention, the applicant stated that he had had no right to compensation under domestic law for his grievances under Article 5 §§ 3 and 4.
13. The applicant also complained about the length of the criminal proceedings and invoked Articles 6 and 13 of the Convention.
14. Finally, under Article 7 of the Convention, the applicant claimed that the length of his pre-trial detention had turned into a punishment.
THE LAW
A. Article 5 § 4 of the Convention
15. The applicant complained under Article 5 § 4 of the Convention that he did not have an effective remedy to challenge the lawfulness of his detention. He maintained that his release requests did not receive any serious consideration by the domestic courts, which used stereotyped wording in dismissing his requests.
16. The Government contested the claim. They stated that the applicant had filed solely two objections against the courts’ detention orders and that both objections were examined thoroughly by the domestic courts.
17. The Court recalls that under Article 5 § 4 an arrested or detained person is entitled to bring proceedings for the review by a court of the procedural and substantive conditions which are essential for the “lawfulness” of his or her deprivation of liberty. In particular, the competent court should examine not only compliance with the procedural requirements set out in domestic law, but also the legitimacy of the purpose pursued by the arrest and the ensuing detention and should have the power to order the termination of the deprivation of liberty if it proves unlawful. Moreover, according to the Court’s case-law, Article 5 § 4 of the Convention refers to domestic remedies that are sufficiently certain, otherwise the requirements of accessibility and effectiveness are not fulfilled (see Agit Demir v. Turkey, no. 36475/10, § 51, 27 February 2018).
18. In the present case, the question of prolonging the applicant’s detention on remand was examined ex proprio motu at regular intervals by the domestic courts. Furthermore, the applicant also had the opportunity to lodge objections against the decisions concerning his detention on remand; the last one being on 10 March 2010. The Court further notes that it has examined a similar complaint and found it inadmissible in the case of Agit Demir (cited above, § 57) and finds no reason to depart from that finding in the present case as well.
19. In view of the above, it follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
B. Article 5 § 5 of the Convention
20. The applicant complained under Article 5 § 5 of the Convention that he had not been provided with effective domestic remedies with regard to his complaint under Article 5 § 3 of the Convention.
21. The Court reiterates that paragraph 5 of Article 5 is complied with where it is possible to apply for compensation in respect of a deprivation of liberty effected in conditions contrary to paragraphs 1, 2, 3 or 4 (Wassink v. the Netherlands, 27 September 1990, § 38, Series A no. 185-A). The right to compensation set forth in paragraph 5 therefore presupposes that a violation of one of the preceding paragraphs of Article 5 has been established, either by a domestic authority or by the Court. Accordingly, the Court cannot consider an applicant’s claim based exclusively on Article 5 § 5 unless a breach of Article 5 §§ 1 to 4 has been established directly or in substance, either by the domestic authorities or by the Court itself.
22. It follows that as the applicant’s case does not disclose such a breach, his claim under Article 5 § 5 should be rejected for being incompatible ratione materiae with the provisions of the Convention.
C. Other complaints
1. Length of proceedings
23. The applicant complained about the length of the criminal proceedings against him. He relied on Article 6 § 1 of the Convention.
24. The Court observes that a domestic remedy has been established in Turkey by Law no. 6384, 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 Müdür Turgut and Others v. Turkey ((dec.), no. 4860/09, §§ 47‑58, 26 March 2013), the Court declared a new application inadmissible on the ground that the applicants had failed to exhaust domestic remedies, that is to say the new domestic remedy. 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.
25. In this context, the Court observes that the applicant should make use of the new domestic remedy established by Law no. 6384. Thus, the Court reiterates its conclusion in the case of Müdür Turgut and Others (cited above). It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
2. Remaining complaints
26. As regards the remaining complaints raised under Articles 5 §§ 3, 6, 7 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.
27. Consequently, this part of the application should be rejected in accordance with Article 35 § 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 21 June 2018.
Hasan BakırcıPaul Lemmens
Deputy RegistrarPresident
Full & Egal Universal Law Academy