SECOND SECTION
DECISION
Application no. 52109/11
Ömer UÇAR
against Turkey
The European Court of Human Rights (Second Section), sitting on 20 November 2018 as a Committee composed of:
Julia Laffranque, President,
Valeriu Griţco,
Stéphanie Mourou-Vikström, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above application lodged on 5 August 2011,
Having regard to the decision of 19 June 2013,
Having regard to the observations submitted by the respondent Government,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Ömer Uçar, is a Turkish national, who was born in 1962 and is detained in İstanbul. He was represented before the Court by Mr H.A. Atabay, a lawyer practising in İstanbul.
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 24 September 2009 the applicant was arrested and taken into custody.
5. On 28 September 2009 a judge on duty at the İstanbul Assize Court ordered the applicant’s detention on remand.
6. On 31 May 2010 the public prosecutor filed an indictment with the İstanbul Assize Court charging the applicant with membership of a terrorist organisation.
7. On 27 January 2012 the İstanbul Assize Court ordered the applicant’s release pending trial.
8. According to the latest information in the case file, the criminal proceedings against the applicant were still pending as of February 2013.
B. Relevant domestic law and practice
9. A description of the relevant domestic law and practice can be found in A.Ş v. Turkey ((dec.), no. 58271/10, §§ 34-35, 13 September 2016), and Şefik Demir v. Turkey ((dec.), no. 51770/07, §§ 29-33, 16 October 2012).
COMPLAINT
10. The applicant complained under Article 5 § 3 of the Convention about the length of his detention on remand.
THE LAW
11. The Government asked the Court to reject this complaint for non‑exhaustion of domestic remedies. In this respect, they submitted that the applicant should request compensation pursuant to Article 141 of the Code on Criminal Procedure (“CCP”).
12. The Court observes that the domestic remedy in application of Article 141 § 1 (d) of the CCP with regard to length of detention on remand was examined in the cases of A.Ş. v. Turkey (no. 58271/10, § 85‑95, 13 September 2016) and Şefik Demir v. Turkey, ((dec.), no. 51770/07, §§ 17-35, 16 October 2012).
13. In the case of Şefik Demir (cited above) the Court held that that remedy had to be exhausted by the applicants whose convictions became final. It further ruled in its judgment of A.Ş. (cited above, § 92) that as of June 2015 the domestic remedy provided for in Article 141 § 1 (d) of the CCP had to be exhausted by the applicants even before the proceedings became final.
14. In the instant case, the Court notes that the applicant’s detention ended on 27 January 2012, with his release from detention on remand, yet there is no information whether the proceedings against him are still pending or have become final. However, the Court observes that the applicant was entitled, in both situations, to seek compensation under Article 141 § 1 (d) of the CCP. However, he failed to do so.
15. 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.), no. 11929/12, 28 January 2014). The Court takes the view that the exception should be applied in the present case as well.
16. As a result, taking into account the Government’s objection, the Court concludes that the application 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 remainder of the application inadmissible.
Done in English and notified in writing on 13 December 2018.
Hasan BakırcıJulia Laffranque
Deputy RegistrarPresident
Full & Egal Universal Law Academy