SECOND SECTION
DECISION
Application no. 3114/07
Ersin EROĞLU
against Turkey
The European Court of Human Rights (Second Section), sitting on 6 February 2018 as a Committee composed of:
Ledi Bianku, President,
Nebojša Vučinić,
Jon Fridrik Kjølbro, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above application lodged on 15 January 2007,
Having regard to the formal declarations accepting a friendly settlement of the case,
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
The applicant, Mr Ersin Eroğlu, is a Turkish national, who was born in 1977 and lives in Tokat. He was represented before the Court by Mrs G. Altay, a lawyer practising in Istanbul.
The Turkish Government (“the Government”) were represented by their Agent.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. On 25 March 1998 the applicant was arrested on suspicion of membership of an illegal organisation and was interrogated by the police in the absence of a lawyer.
2. On 1 April 1998 the applicant was brought before the public prosecutor and subsequently the investigating judge. The applicant was denied access to a lawyer while he was giving his statements to the public prosecutor and the investigating judge. He was placed in detention on the same day.
3. On 21 April 1998 the Public Prosecutor at the Istanbul State Security Court filed a bill of indictment accusing the applicant of being a member of an illegal terrorist organisation under Article 168 of the now defunct Criminal Code, Law no. 765.
4. On 30 June 2010 the Istanbul Assize Court found the applicant guilty of being a member of an illegal organisation and being involved in its activities and sentenced him to six years and three months imprisonment.
5. On 12 February 2013 the Court of Cassation upheld the conviction.
B. Relevant domestic law
6. A description of the relevant domestic law concerning the right of access to a lawyer may be found in Salduz v. Turkey ([GC] no. 36391/02, §§ 27‑31, ECHR 2008).
THE LAW
7. The applicant submitted under Article 6 § 3 (c) of the Convention that he had been denied access to a lawyer when he was giving statements to the police, the public prosecutor and the investigating judge.
8. The Government raised a plea of non-exhaustion of domestic remedies on account of the applicant’s failure to lodge an individual application to the Constitutional Court for his grievances. They pointed out that the applicant’s conviction became final on 12 February 2013, namely after the date when the right to individual application to the Constitutional Court had taken effect. In other words, the applicant should have lodged an application before the Constitutional Court. Accordingly, they invited the Court to declare the application inadmissible due to non-exhaustion of domestic remedies.
9. Having examined the main aspects of the new remedy before the Turkish Constitutional Court, the Court found that the Turkish Parliament had entrusted that court with powers that enabled it to provide, in principle, direct and speedy redress for violations of the rights and freedoms protected by the Convention, in respect of all decisions that had become final after 23 September 2012, and declared it as a remedy to be used (see Hasan Uzun v. Turkey, (dec.), no. 10755/13, §§ 68-71, 30 April 2013).
10. In the present case, the Court observes that the criminal proceedings against the applicant became final on 13 February 2013 with the Court of Cassation’s decision upholding the trial court’s judgment. Accordingly, those criminal proceedings came within the Constitutional Court’s temporal jurisdiction (see, in the context of complaints under Article 5 § 3 of the Convention, Koçintar v. Turkey (dec.), no 77429/12, §§ 15-26, 39, 1 July 2014, and Levent Bektaş v. Turkey, no. 70026/10, §§ 40-42, 16 June 2015). As a result, from 13 February 2013 onwards, the applicant could have lodged an individual application to the Constitutional Court for his grievances (see, mutatis mutandis, Korkmaz and others v. Turkey (dec.), no. 64200/13, 25 March 2014). However, according to the documents in the Court’s possession, he had lodged no application to the Constitutional Court.
11. That being the case and 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.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 1 March 2018.
Hasan BakırcıLedi Bianku
Deputy RegistrarPresident
Full & Egal Universal Law Academy