SECOND SECTION

CASE OF BAĞLAR v. TURKEY

(Application no. 40708/11)

JUDGMENT

STRASBOURG

10 October 2017

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

In the case of Bağlar v. Turkey,
The European Court of Human Rights (Second Section), sitting as a Committee composed of:
	Julia Laffranque, President,
	Jon Fridrik Kjølbro,
	Stéphanie Mourou-Vikström, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having deliberated in private on 5 September 2017,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 40708/11) 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 Elvan Bağlar (“the applicant”), on 21 April 2011.
2.  The applicant was represented by Mr H. Çalışçı, a lawyer practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent.
3.  On 14 March 2013 the application was communicated to the Government.
THE FACTS
Article I.	I.  THE CIRCUMSTANCES OF THE CASE
4.  The applicant, who was born in 1989, lives in Istanbul.
5.  On 14 January 2009 the applicant was taken into police custody on suspicion of membership of an illegal organisation.
6.  On 17 January 2009 the investigating judge at the Istanbul Assize Court, after questioning the applicant, ordered his pre-trial detention.
7.  On 24 June 2009 the Istanbul public prosecutor filed an indictment with the Istanbul Assize Court.
8.  The trial commenced before the Istanbul Assize Court and the first preparatory hearing was held on 4 November 2009.
9.  In the subsequent hearings held between 17 February 2010 and 3 November 2010, the applicant appeared before the court and the judges ordered his continued detention.
10.  The applicant filed an objection against the decision of 3 November 2010. On 29 November 2010 the 12th Chamber of the Istanbul Assize Court dismissed this objection without holding an oral hearing, and based on the public prosecutor’s written opinion, which had not been communicated to the applicant or his representative.
11.  On 13 February 2013 the applicant was released from detention on remand.
12.  According to the latest information in the case-file, the proceedings against the applicant are still pending before the first-instance court.
Article II.	II.  RELEVANT DOMESTIC LAW
13.  A description of the relevant domestic law which was in force at the material time can be found in Altınok v. Turkey (no. 31610/08, §§ 28-32, 29 November 2011).
THE LAW
Article III.	I.  ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION
14.  Relying on Article 5 § 3 of the Convention, the applicant complained that the length of his detention on remand had been excessive.
15.  The Government maintained that the applicant had not exhausted domestic remedies, as he was still in detention on remand on 23 September 2012 and should have applied to the Constitutional Court.
16.  The applicant did not comment on the Government’s objection within the time-limit set by the Court.
17.  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).
18.  The Court further notes that the Constitutional Court’s jurisdiction ratione temporis had begun on 23 September 2012, and that 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.
19.  In the present case, the applicant’s detention started on 17 January 2009 and ended on 13 February 2013 when he was released. Accordingly, the applicant’s detention period, even including the period before 23 September 2012, fell within the Constitutional Court’s temporal jurisdiction (see Koçintar v. Turkey (dec.), no. 77429/12, §§ 15-26, 39, 1 July 2014, and Levent Bektaş v. Turkey, no. 70026/10, §§ 40-42, 16 June 2015).
20.  As a result, taking into account the Government’s objection, the Court 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.
Article IV.	II.  ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION
Section 4.01	A.  Concerning the applicant’s lack of presence before the appeal court examining his objections to his pre-trail detention
21.  Relying on Article 5 § 4 of the Convention, the applicant complained about not being able to appear before the court when his pre‑trial detention was reviewed.
22.  The Government contested that argument.
23.  In the present case, the applicant was placed in detention on remand on 17 January 2009. At the end of the hearing held on 3 November 2010, the trial court decided the continuation of the applicant’s detention. The applicant subsequently filed an objection against this decision.
24.  The Court observes that this objection was dismissed on 29 November 2010 by the 12th Chamber of Istanbul Assize Court, without holding an oral hearing. Nevertheless, the applicant had appeared before the trial court twenty-six days before his objections were examined by the appeal court. In these circumstances, the Court does not consider that a further oral hearing before the appeal court was required for the purposes of Article 5 § 4.
25.  The Court thus concludes that the lack of an oral hearing during the proceedings did not jeopardise the principle of equality of arms (see Altınok v. Turkey, no. 31610/08, §§ 54-55, 29 November 2011; Çatal v. Turkey, no. 26808/08, § 40, 17 April 2012; and Ali Rıza Kaplan v. Turkey, no. 24597/08, §§ 28-32, 13 November 2014).
26.  It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
Section 4.02	B.  Concerning the non-communication of the public prosecutor’s opinion
27.  The applicant complained under Article 5 § 4 the Convention that he did not have an effective remedy to challenge the lawfulness of his detention. He contended that his right to have an effective remedy was breached since his objection was dismissed by the appeal court on the basis of the public prosecutor’s written opinions, which were not communicated to him or to his representative.
28.  The Government contested that argument, submitting that the public prosecutors’ opinions were very brief and identical and did not have any bearing on the decisions of the appeal courts. They further submitted that Law no. 6459, which entered into force on 30 April 2013, made the communication of the public prosecutor’s opinion to the accused or his lawyer obligatory. They therefore argued that the applicant did not suffer any significant disadvantage and that this complaint must be declared inadmissible.
29.  The Court reiterates that it has already examined and rejected a similar objection of the Government’s objections on the same issue (see, in particular, Hebat Aslan and Firas Aslan v. Turkey, no. 15048/09, §§ 68-83, 28 October 2014). The Court finds no particular circumstances in the instant case which would require it to depart from its findings concerning the above-mentioned application.
30.  The Court notes that this part of the application 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.
31.  Turning to the merits of the applicant’s complaint, the Court notes that the present case raises issues similar to the case of Altınok (cited above, §§ 57-61), where it found a violation of Article 5 § 4 of the Convention. There is no reason to depart from those findings.
32.  Accordingly, the Court considers that in the present case there has been a violation of Article 5 § 4 of the Convention on account of the non‑communication of public prosecutor’s opinion to the applicant or his representative in the context of review proceedings of lawfulness of the applicant’s detention.
Article V.	III.  ALLEGED VIOLATION OF ARTICLE 5 § 5 OF THE CONVENTION
33.  The applicant complained under Article 5 § 5 of the Convention that he had been denied the right to compensation for the violation of his rights under Article 5 § 4 of the Convention.
34.  The Government contested that argument.
35.  The Court reiterates that paragraph 5 of Article 5 requires a remedy in compensation for a deprivation of liberty effected in conditions contrary to paragraphs 1, 2, 3 or 4 (Wassink v. the Netherlands, 27 September 1990, § 38, Series A no. 185‑A). This right to compensation presupposes that a violation of one of the preceding paragraphs of Article 5 has been established, either by a domestic authority or by the Court.
36.  In this connection, the Court notes that it has found that the applicant’s right to have an effective remedy to challenge the lawfulness of his detention was infringed in the present case on account of the non‑communication of the public prosecutor’s opinion (see paragraph 33 above).
37.  The Court notes that it has examined a similar issue in the case of Altınok (cited above, §§ 66-69), where the Court found a violation of Article 5 § 5 of the Convention. There is no reason to depart from those findings.
38.  Accordingly, the Court concludes that in the present case there has been a violation of Article 5 § 5 of the Convention.
Article VI.	IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
39.  The applicant did not submit a claim for just satisfaction within the time-limit set by the Court. Accordingly, the Court considers that there is no call to award him any sum on that account.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1.  Declares the complaints raised under Article 5 §§ 4 and 5 of the Convention, concerning the non-communication of the public prosecutor’s opinion to the applicant or his representative, and the lack of compensation in this respect admissible and the 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-communication of the public prosecutor’s opinion to the applicant or his representative;

3.  Holds that there has been a violation of Article 5 § 5 of the Convention.
Done in English, and notified in writing on 10 October 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Hasan Bakırcı	Julia Laffranque
	Deputy Registrar	President