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SECOND SECTION

 

 

 

 

 

 

 

 

CASE OF TAŞPINAR v. TURKEY

 

(Application no. 33683/08)

 

 

 

 

 

 

 

 

 

JUDGMENT

 

 

 

 

 

 

STRASBOURG

 

11 December 2018

 

 

 

This judgment is final but it may be subject to editorial revision.

In the case of Taşpınar v. Turkey,

The European Court of Human Rights (Second Section), sitting as a Committee composed of:

Julia Laffranque, President,
Valeriu Griţco,
Stéphanie Mourou-Vikström, judges,
and Hasan Bakırcı, Deputy Section Registrar,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated in private on 20 November 2018,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 33683/08) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") by a Turkish national, Mr Caner Taşpınar ("the applicant"), on 4 July 2008.

2. The applicant was represented by Ms H. Yılmaz Kayar, a lawyer practising in Istanbul. The Turkish Government ("the Government") were represented by their Agent.

3. On 20 October 2009 the application was declared partly inadmissible and the complaints concerning the length of the applicant's pre-trial detention, as well as the effectiveness of the procedure by which the applicant could challenge the lawfulness of his detention and the length of the criminal proceedings initiated against him were communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4. The applicant was born in 1990 and lives in Istanbul.

5. On 28 August 2007 the applicant was arrested on suspicion of child molestation and on the same day he was brought before a judge at the Gaziosmanpaşa Juvenile Court, who placed him in detention on remand.

6. On 3 September 2007 the applicant filed an objection against the decision on his detention. On 18 September 2007 the Beyoğlu Juvenile Assize Court dismissed his objection on the basis of the case file, without holding a hearing.

7. On 23 October 2007 and 19 November 2007 the Gaziosmanpaşa Magistrates' Court prolonged the applicant's detention ex officio.

8. On 16 December 2007 the Bakırköy public prosecutor filed an indictment with the Bakırköy Juvenile Assize Court, charging the applicant with child molestation.

9. On 31 December 2007 the Bakırköy Juvenile Assize Court ordered the continuation of the applicant's pre-trial detention on the basis of the case file, and decided that it had no jurisdiction ratione loci and that the case should be heard by the Beyoğlu Juvenile Assize Court and referred the case file to the latter.

10. On 24 January 2008 the Beyoğlu Juvenile Assize Court declared itself incompetent ratione loci as well and sent the case file to the Court of Cassation to render its decision on the conflict of jurisdiction ratione loci . On the same date the court also ordered the continuation of the applicant's pre-trial detention on the basis of the case file.

11. On 30 January 2008 the applicant filed an objection against the decision on the continuation of his pre-trial detention. On 14 February 2008 the Bakırköy Juvenile Assize Court dismissed his objection on the basis of the case file, without holding a hearing.

12. On 23 June 2008 the Court of Cassation gave its decision authorising Bakırköy Juvenile Assize Court over the case.

13. On 13 August 2008 the trial court held a preparatory hearing and ordered the continuation of the applicant's detention on the basis of the case file. On 12 September 2008 and 9 October 2008, respectively, the court ex officio examined the applicant's detention on remand on the basis of the case-file and decided to extend it .

14. On 30 October 2008 the court held its first hearing, in which both the applicant and his lawyer were present. At the end of that hearing, the court ordered the continuation of the applicant's detention.

15. During the hearings held on 21 January 2009, 14 April 2009 and 21 July 2009, at which the applicant was present, the trial court ordered the continuation of the applicant's detention on remand. Between the hearings, which were held with regular intervals of one month, the court ex officio examined the applicant's detention on remand on the basis of the case-�file and decided to extend it

16. On 3 November 2009, at the end of the fifth hearing before the court, the applicant was released pending trial.

17. According to the latest information in the case file, the criminal proceedings against the applicant were still pending.

II. RELEVANT DOMESTIC LAW AND PRACTICE

18. A description of the relevant domestic law and practice can be found in A.Ş. v. Turkey (no. 58271/10, § 34-35, 13 September 2016); Altınok v. Turkey (no. 31610/08, §§ 28-32, 29 November 2011); and Turgut and Others v. Turkey ((dec.), no. 4860/09, §§ 19-26, 26 March 2013).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION

19. Relying on Article 5 § 3 of the Convention, the applicant complained that the length of his detention on remand had been excessive and that the domestic courts had used identical, stereotyped reasoning when prolonging his detention.

20. The Government rejected the allegation, submitting that the applicant had failed to exhaust domestic remedies, referring to the possibility of claiming compensation for unlawful detention under Article 141 § 1 (d) of the Code on Criminal Procedure ("CCP").

21. 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 Şefik Demir v. Turkey , ((dec.), no. 51770/07, §§ 17-�35, 16 October 2012), and A.Ş. v. Turkey (no. 58271/10, §§ 85-�95, 13 September 2016).

22. 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.

23. In the instant case, the Court notes that the applicant's detention ended on 3 November 2009, when he was released from detention on remand, yet there is no information about whether the proceedings against him are still pending or have become final. The Court therefore observes that the applicant was entitled to seek compensation under Article 141 § 1 (d) of the CCP and that he must do so.

24. 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.

25. As a result, taking into account the Government's 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.

II. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION

26. The applicant alleged under Articles 5 and 13 of the Convention that he did not have an effective remedy to challenge the unlawfulness of his detention. In this connection, he complained about his inability to appear before the courts when his pre-trial detention was reviewed.

27. The Court considers that the applicant's complaint under Article 13 should be examined from the standpoint of Article 5 § 4 of the Convention, being the lex specialis in the matter (see Doğan and Kalın v. Turkey , no. 1651/05, § 15, 21 December 2010).

28. The Government contested that argument.

29. The Court notes that this complaint is not manifestly ill-�founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

30. In the present case, the applicant was placed in pre-trial detention on 28 August 2007 and his next appearance before a judge was on 30 October 2008, which was the first hearing before the Bakırköy Juvenile Court.

31. The Court reiterates that it has already examined a similar grievance in the cases of Erişen and Others v. Turkey (no. 7067/06, § 53, 3 April 2012) and Karaosmanoğlu and Özden (no. 4807/08, § 76, 17 June 2014), and found a violation of Article 5 § 4. It has examined the present case and finds no particular circumstances which would require it to depart from its findings in the above-mentioned judgments.

32. There has therefore been a violation of Article 5 § 4 of the Convention under this head.

III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

33. The applicant complained that the length of the criminal proceedings had been incompatible with the "reasonable time" requirement laid down in Article 6 § 1 of the Convention.

34. The Government noted that pursuant to Law no. 6384 a new Compensation Commission had been established to deal with applications concerning the length of proceedings and the non-execution of judgments. They maintained that this part of the application should be declared inadmissible for non-exhaustion of domestic remedies as the applicant should apply to the Compensation Commission.

35. The Court observes that, a new domestic remedy has been established in Turkey 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 Turgut and Others v. Turkey ((dec.), no. 4860/09, 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 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.

36. The Court notes that in its judgment in the case of Ümmühan Kaplan (cited above, § 77) it stressed that it could nevertheless examine, under its normal procedure, applications of this type which had already been communicated to the Government.

37. However, taking account of the Government's preliminary objection with regard to the applicant's failure to make use of the domestic remedy established by Law no. 6384, the Court reiterates its conclusion in the case of Turgut and Others (cited above).

38. It therefore concludes that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

A. Damage

39. The applicant claimed 100,000 Euros (EUR) in respect of non-�pecuniary damage.

40. The Government contested that claim.

41. The Court considers that the applicant must have sustained non-�pecuniary damage in connection with the violation of the Convention found in his case. Ruling on equitable basis, it awards EUR 750 to the applicant in respect of non-pecuniary damage.

B. Costs and expenses

42. The applicant also claimed 11,500 Turkish liras (TRY) (approximately EUR 2,260) in respect of lawyer's fees. In that connection, he submitted a legal fee agreement.

43. The Government contested the claim.

44. According to the Court's case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, having regard to the documents in its possession and the above criteria, the Court considers it reasonable to award the applicant EUR 500 under this head.

C. Default interest

45. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the complaint under Article 5 § 4 of the Convention admissible and remainder of the application inadmissible;

 

2. Holds that there has been a violation of Article 5 § 4 of the Convention on account of the non-appearance of the applicant before a court in the proceedings to challenge the lawfulness of his continued detention;

 

3. Holds

(a) that the respondent State is to pay the applicant, within three months the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 750 (seven hundred and fifty euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 500 (five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b) that from the expiry of the abovementioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points

 

4. Dismisses the remainder of the applicant's claim for just satisfaction.

Done in English, and notified in writing on 11 December 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Hasan Bakırcı Julia Laffranque
Deputy Registrar President