European Court of Human Rights

Information Note on the Court’s case-law No. 171

February 2014

Alican Demir v. Turkey - 41444/09

Judgment 25.2.2014 [Section II] See: French Text [2014] ECHR 207

Article 35

Article 35-1

Exhaustion of domestic remedies

Effective domestic remedy

Entitlement to financial compensation under Article 141 § 1 (f) of the Code of Criminal Procedure for persons deprived of their liberty for a period exceeding the length of their sentence: effective remedy

Facts - In December 2005 the applicant was sentenced to a prison term of six years and three months. Under the legislation on the enforcement of sentences, he was entitled to conditional release on 24 January 2009. However, as part of the case (not concerning the applicant’s conviction) was still before the Court of Cassation, he was kept in custody until 13 February 2009. Before the European Court the applicant complained about the period of custody between 24 January and 12 February 2009, arguing that the release to which he was entitled had been unduly postponed.

Law - Article 35: It could be seen from the judgments adduced by the Government by way of example that Article 141 § 1 (f) of the Code of Criminal Procedure, as interpreted by the Court of Cassation in the light of the Turkish Constitution and the Convention, provided for an award of financial compensation to anyone deprived of liberty for a period exceeding that of the sanction that should have been imposed under the sentencing legislation and taking into account any entitlement to conditional release. This was precisely the situation in which the applicant had found himself. The remedy in question was thus appropriate in that it was capable of resulting in an acknowledgment of a breach of liberty and security and an award of compensation. However, the remedy had only recently been made available by the Court of Cassation. The relevant judgments of that court dated from 2012 and 2013, thus post-dating the lodging of the present application. At the material time, neither the text of the relevant provision nor its interpretation in the case-law would have enabled the applicant to obtain compensation for the period of custody subsequent to the date on which he should have been granted conditional release. In other words, even though the remedy based on the provision in question had become effective, there was nothing to show that this had been the case at the time the application was lodged. The applicant could not therefore be criticised for failing to avail himself of that remedy beforehand.

Conclusion: preliminary objection dismissed (unanimously).

The Court also found, unanimously, that there had been a violation of Article 5 §§ 1, 3 and 4 of the Convention and awarded the applicant EUR 9,500 in respect of non-pecuniary damage.

 

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