TÜRE v. TURKEY

 
 
 
 
SECOND SECTION
DECISION
Application no. 58853/11
Kazım TÜRE
against Turkey
 
The European Court of Human Rights (Second Section), sitting on 2 April 2019 as a Committee composed of:
Valeriu Griţco, President,
Ivana Jelić,
Darian Pavli, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above application lodged on 11 July 2011,
Having regard to the decision of 5 July 2013,
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
1.  The applicant, Mr Kazım Türe, is a Turkish national, who was born in 1962 and lives in Istanbul. He was represented before the Court by Mr M. Filorinalı, a lawyer practising in Istanbul.
2.  The Turkish Government (“the Government”) were represented by their Agent.
3.  The facts of the case, as submitted by the parties, may be summarised as follows.
4.  On 30 July 2003 the applicant, who was accused of murder, was arrested and then placed in pre-trial detention. Subsequently, criminal proceedings were initiated against him before the Bakırköy Assize Court. The applicant was released on 12 November 2012 pending trial.
5.  On 10 April 2013 the applicant was convicted as charged. The case file does not contain any further information about the outcome of the appeal proceedings before the Court of Cassation.
COMPLAINT
6.  The applicant complained under Article 5 § 3 of the Convention about the length of his detention on remand.
THE LAW
7.  The Government maintained that the applicant had not exhausted domestic remedies. They stated that as the applicant was still in detention on remand on 23 September 2012, he should have applied to the Constitutional Court.
8.  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).
9.  The Court further notes that the Constitutional Court’s temporal jurisdiction had begun on 23 September 2012 and it was clear from the judgments already delivered that it accepted an extension of its jurisdiction ratione temporis to situations involving a continuing violation which had begun before the introduction of the right of individual application and had carried on after that date (Koçintar v. Turkey (dec.), no. 77429/12, § 39, 1 July 2014).
10.  In the present case, the applicant’s detention ended on 12 November 2012, namely after the Constitutional Court’s jurisdiction had begun. Accordingly, his detention came within the Constitutional Court’s temporal jurisdiction (see Levent Bektaş v. Turkey, no. 70026/10, §§ 41-44, 16 June 2015).
11.  Taking into account the Government’s preliminary objection with regard to the applicant’s failure to make use of the new remedy before the Constitutional Court, 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 9 May 2019.
Hasan BakırcıValeriu Griţco
Deputy RegistrarPresident

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