SECOND SECTION
DECISION
Application no. 11929/12
Abdulselam TUTAL and others
against Turkey
The European Court of Human Rights (Second Section), sitting on 28 January 2014 as a Committee composed of:
András Sajó, President,
Nebojša Vučinić,
Egidijus Kūris, judges,
and Stanley Naismith, Section Registrar,
Having regard to the above application lodged on 29 December 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
The applicants, Mr Abdulselam Tutal, Mr Burhanettin Yalçın, Mr Burak Çileli, Mr Selim Aydın and Mr Emin Koçhan were born in 1982, 1983, 1971, 1984 and 1984, respectively, and are serving prison sentences in the Kocaeli F-type Prison in Turkey. They are represented by M. Erbil, 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.
On 14 and 15 May 2004 the applicants were arrested and taken into police custody within the context of an operation carried out against the IBDA-C, an illegal organisation (Great East Islamic Raiders Front). The applicants were detained at the Istanbul police directorate until 18 May 2004.
On 18 May 2004 the applicants were brought before a judge at the Istanbul State Security Court. The judge ordered their detention on remand, as requested by the public prosecutor, having regard to the nature of the offences with which they were charged and to the state of the evidence.
On 14 June 2004 the Istanbul public prosecutor filed an indictment with the Istanbul State Security Court charging the applicants with attempting to abolish and to dissolve the Constitution of the Republic of Turkey by force.
State Security Courts were abolished on 16 June 2004 by Law no. 5190. The case was accordingly transferred to the Istanbul Assize Court.
On 18 October 2004 the Istanbul Assize Court held the first hearing in the case and heard the applicants. The court ordered the applicants’ continued detention having regard to the risk of interfering with evidence at the early stage of investigation and the possibility of fleeing.
Until 25 January 2012 the court held a total of 31 hearings in the case. During these hearings, the court decided to prolong the applicants’ detention having regard to the gravity of the offence in question and the possibility of fleeing.
On 25 January 2012 the court convicted the applicants as charged and sentenced them to aggravated life imprisonment.
On 2 October 2012 the Court of Cassation upheld the first instance court’s judgment.
B. Relevant domestic law and practice
A description of the relevant domestic law and practice can be found in Şefik Demir v. Turkey ((dec.), no. 51770/07, §§ 29-33, 16 October 2012); and Müdür Turgut and others v. Turkey ((dec.), no. 4860/09, §§ 19‑26, 26 March 2013).
COMPLAINTS
The applicants complained under Article 5 § 3 of the Convention that the length of their detention on remand had been excessive and that the decisions of the court had not been properly reasoned.
The applicants claimed that the proceedings by which the lawfulness of their pre-trial detention was reviewed had not satisfied the requirements of Article 5 §§ 4 and 5 of the Convention.
The applicants contended under Article 6 § 1 of the Convention that the length of the proceedings had not complied with the “reasonable time” requirement.
The applicants finally maintained under Article 13 of the Convention that there had been no effective remedy in domestic law by which they could raise their allegations under the Convention.
THE LAW
1. The applicants alleged under Article 5 § 3 of the Convention that the length of their detention on remand had been unreasonably long.
The Government rejected the allegation, submitting that the applicants had failed to exhaust domestic remedies, referring to the possibility of claiming compensation for unlawful detention under Article 141 of the Code of Criminal Procedure. The applicants objected to this argument, asserting that the domestic remedy mentioned by the Government was not effective.
The Court observes that the domestic remedy in application of the Article 141 of the Code of Criminal Procedure with regard to length of detention on remand was examined in the decision Şefik Demir v. Turkey, (no. 51770/07, 16 October 2012). The Court concluded in that decision that the domestic remedy provided for in Article 141 of the Code of Criminal Procedure had to be exhausted.
The Court observes in this connection that the applicants’ convictions became final on 2 October 2012. Consequently, from that date onwards the applicants were entitled to seek compensation under Article 141 of the Code of Criminal Procedure, but they failed to do so.
It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
2. The applicants submitted that the length of the criminal proceedings against them did not comply with the “reasonable time” requirement of Article 6 § 1 of the Convention.
The Government rejected this allegation, referring to recently established commission on compensation with regard to the excessive length of judicial proceedings.
The Court observes that a new domestic remedy was established in Turkey after the application of the pilot judgment procedure in the case of Ümmühan Kaplan v. Turkey (no. 24240/07, 20 March 2012). The Court further recalls that in its decision in the case of Turgut and Others v. Turkey (no. 4860/09, 26 March 2013), it declared that application inadmissible on the ground that the applicants had failed to exhaust domestic remedies as a new domestic remedy had been established. In so doing, the Court in particular considered that this new remedy was, a priori, accessible and capable of offering a reasonable prospect of redress for complaints concerning the length of proceedings.
It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
3. The applicants further complained under Articles 5 § 4 of the Convention about the alleged shortcomings in the procedure for reviewing their detention.
The Court considers that this complaint is unsubstantiated as the applicants failed to demonstrate that they attempted to object to the courts’ decisions on their detention, which is a condition for the application of Article 5 § 4 of the Convention, in line with the Court’s case law (see Altınok v. Turkey, no. 31610/08, § 39, 29 November 2011).
The Court concludes that this part of the application is inadmissible as being manifestly ill-founded in accordance with Article 35 §§ 3 and 4 of the Convention.
4. The applicants complained under Articles 5 § 5 of the Convention that they had not provided with the effective domestic remedies with regard to their complaints under Articles 5 § 3 and 4 of the Convention.
The Court reiterates that this provision guarantees an enforceable right to compensation only to those who have been the victims of arrest or detention contrary to Article 5 of the Convention (Benham v. the United Kingdom, 10 June 1996, § 50, Reports of Judgments and Decisions 1996- III). In the absence of any such finding in the present case, the Court considers that this part of the application must be rejected as being manifestly ill‑founded within the meaning of Article 35 §§ 3 and 4 of the Convention.
5. The applicants lastly complained under Article 13 of the Convention that they had not been provided with the effective domestic remedies in regard to their complaint under Articles 6 § 1 of the Convention
In line with the reasoning detailed above and with reference to its decision in the case of Turgut and Others v. Turkey (cited above), the Court has already found that the domestic law provides applicants with a remedy in respect of their complaint concerning the length of the proceedings.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Stanley Naismith András Sajó
RegistrarPresident
Full & Egal Universal Law Academy