| AFFAIRE MEHMET MANSUR DEMIR c. TURQUIE

SECOND SECTION
CASE OF MEHMET MANSUR DEMİR v. TURKEY
(Application no. 54614/07)
JUDGMENT
STRASBOURG
24 July 2012
This judgment is final but it may be subject to editorial revision.
In the case of Mehmet Mansur Demir v. Turkey,
The European Court of Human Rights (Second Section), sitting as a Committee composed of:
Isabelle Berro-Lefèvre, President, Guido Raimondi, Helen Keller, judges,and Françoise Elens-Passos, Deputy Section Registrar,
Having deliberated in private on 3 July 2012,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 54614/07) 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 Mehmet Mansur Demir (“the applicant”), on 27 November 2007.
2. The Turkish Government (“the Government”) were represented by their Agent.
3. On 2 March 2010 the application was declared partly inadmissible and the complaints concerning the applicant’s right to be released pending trial and to have an effective remedy by which he could challenge the lawfulness of his continued detention were communicated to the Government. During the proceedings before the Court, the parties did not reach a friendly settlement.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
4. The applicant was born in 1975. He is currently serving a prison sentence in Mardin.
5. On 14 December 2000 the applicant was arrested on suspicion of membership of the Hizbullah, an illegal organisation.
6. On 19 December 2000 the applicant was taken before the public prosecutor and the investigating judge who subsequently decided to place him in pre-trial detention.
7. Criminal proceedings were brought against the applicant and fifty nine others before the Diyarbakır State Security Court on account of carrying out terrorist activities at the behest of Hizbullah, including murder of numerous people, assault and arson.
8. Following the entry into force of Law no. 5190 of 16 June 2004, the criminal proceedings were transferred to the Diyarbakır Assize Court.
9. During the proceedings, the Diyarbakır Assize Court, on its own motion and upon the applicant’s requests, reviewed the lawfulness of the applicant’s detention on a regular basis in accordance with Article 108 of Law no. 5271. It decided that the applicant’s pre-trial detention be continued, having regard to the severity of the offences, the reasonable grounds of suspicion that he had committed the offences with which he was charged, the risk of absconding and the state of the evidence in the case file.
10. On the basis of the evidence before it, on 31 March 2005 the Diyarbakır Assize Court convicted the applicant under Article 146 § 1 of the former Criminal Code for attempting to undermine the constitutional order.
11. On 1 June 2005 the new Criminal Code entered into force.
12. On 11 December 2006 the Court of Cassation set aside the judgment finding that the first-instance court should have re-assessed the case in accordance with the provisions of the new Criminal Code.
13. Following the remittal of the proceedings, the Diyarbakır Assize Court dismissed some of the allegations against the applicant on account of the lack of evidence.
14. On 9 November 2007, having regard to the range of evidence, namely the autopsy, ballistic and other expert reports as well as the witnesses’ testimonies and the statements taken from other co-accused, the Diyarbakır Assize Court, once more, convicted the applicant under Article 146 § 1 of the former Criminal Code and sentenced him to life imprisonment, with the possibility of parole.
15. On 19 January 2009 the Court of Cassation upheld the judgment.
II. RELEVANT DOMESTIC LAW
16. A description of the relevant domestic law and current practice under the new Turkish Code of Criminal Procedure (Law no.5271) is also outlined in the judgment of Altınok v. Turkey (no. 31610/08, §§ 28-31, 29 November 2011).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
A. Article 5 § 3 of the Convention
17. Without relying on any Article of the Convention, the applicant complained that the length of his pre-trial detention had been excessive.
18. The Court will examine the issue under Article 5 § 3 of the Convention, which reads as follows:
“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”
19. The Government submitted a preliminary objection that the applicant had failed to raise this complaint before the domestic courts and in this regard, he had not exhausted domestic remedies within the meaning of Article 35 § 1 of the Convention.
20. The applicant contested the Government’s preliminary objection.
21. The Court observes that during the criminal proceedings, the applicant complained about his continued detention before the Diyarbakır Assize Court and requested to be released pending trial. For this reason, the Court considers that the applicant raised this complaint, in substance, before the national authorities. Accordingly, the Court rejects the Government’s preliminary objection.
22. The Court notes that this complaint is admissible, as no ground for declaring it inadmissible has been established.
23. As regards the merits of the complaint, the Government submitted that the applicant’s detention had been based on the existence of reasonable grounds of suspicion that he had been involved in an illegal organisation. They pointed out that the offence with which the applicant had been charged was of a very serious nature, and that his continued remand in custody was necessary to prevent him from committing a further offence, absconding and to preserve public order.
24. The applicant maintained his allegation.
25. The applicant was detained on 14 December 2000 and was convicted by the Diyarbakır Assize Court on 9 November 2007. The Court notes that after deducting the period between 31 March 2005 and 11 December 2006 when the applicant was detained after conviction in accordance with Article 5 § 1 (a) of the Convention, from the total time of his detention, the period that he was held in pre-trial detention lasted for five years and two months (see Solmaz v. Turkey, no. 27561/02, §§ 36-37, 16 January 2007).
26. The Court has frequently found violations of Article 5 § 3 of the Convention in cases disclosing comparable lengthy periods of pre-trial detention (see, for example, Gökçe and Demirel v. Turkey, no. 51839/99, § 44, 22 June 2006, and Cahit Demirel v. Turkey, no. 18623/03, § 28, 7 July 2009). Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case.
27. Having regard to its case-law on the subject, the Court finds that in the instant case the length of the applicant’s pre-trial detention was excessive.
There has accordingly been a violation of Article 5 § 3 of the Convention.
B. Article 5 § 4 of the Convention
28. The applicant complained that there had been no effective remedy provided by the domestic legal system whereby he could effectively challenge his continued pre-trial detention.
29. The Government contested that argument, submitting that the applicant had had effective avenues under the domestic law to challenge the lawfulness of his continued detention. In this connection, they asserted that the applicant could have filed an objection, pursuant to Article 267 of the Code of Criminal Procedure (Law no.5271), against the decisions extending his detention, or that he could have sought compensation by virtue of Article 141 of the same law for his detention allegedly contravening to the domestic law.
30. The Court recalls that the procedural guarantees of Article 5 § 4 of the Convention applies to the proceedings before a court following the filing of an appeal against a decision extending one’s detention (see Altınok v. Turkey, no. 31610/08, §§ 39-40, 29 November 2011). However, the Court observes that in the present case, there is nothing in the case file showing that the applicant had lodged an appeal against the decisions extending his pre-trial detention. In this regard, the Court considers that the applicant has never taken any proceedings, within the meaning of Article 5 § 4, for the review of the lawfulness of his continued detention.
31. This complaint is, therefore, inadmissible for being manifestly ill-founded and must be rejected pursuant to Article 35 § 4 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
32. The applicant claimed 50,000 euros (EUR) in respect of pecuniary and EUR 50,000 in respect of non-pecuniary damages. The applicant did not claim any amount under cost and expenses.
33. The Government contested these claims as unsubstantiated and excessive.
34. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. Deciding on an equitable basis, the Court awards the applicant EUR 6,200 in respect of non-pecuniary damage.
35. 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 concerning the applicant’s right to be released pending trial admissible and the remainder of the application inadmissible;
2. Holds that there has been a violation of Article 5 § 3 of the Convention on account of the excessive length of the applicant’s pre-trial detention;
3. Holds
(a) that the respondent State is to pay the applicant, within three months, EUR 6,200 (six thousand two hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into Turkish liras at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount 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 24 July 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Isabelle Berro-Lefèvre Deputy Registrar President