SECOND SECTION

DECISION

Application no. 8512/20
Erkan AYDIN
against Türkiye

The European Court of Human Rights (Second Section), sitting on 21 January 2025 as a Committee composed of:

 Jovan Ilievski, President,
 Anja Seibert-Fohr,
 Stéphane Pisani, judges,
and Dorothee von Arnim, Deputy Section Registrar,

Having regard to:

the application (no. 8512/20) against the Republic of Türkiye lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 24 January 2020 by a Turkish national, Mr Erkan Aydın (“the applicant”), who was born in 1994, lives in Adana and was represented by Ms S. Aracı Bek, a lawyer practising in Adana;

the decision to give notice of the complaints concerning Article 5 of the Convention to the Turkish Government (“the Government”), represented by their Agent at the time, Mr Hacı Ali Açıkgül, former Head of the Department of Human Rights of the Ministry of Justice of the Republic of Türkiye, and to declare the remainder of the application inadmissible;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1.  The case concerns the applicant’s pre-trial detention, ordered following his participation in a demonstration which took place in Adana on 23 August 2015.

2.  On that day the applicant was arrested on suspicion of attempting to attack the security forces with an improvised explosive during the demonstration, which had allegedly been organised following calls by the PKK (Workers’ Party of Kurdistan, an illegal armed organisation).

3.  On 26 August 2015 the Adana Magistrates’ Court decided to place the applicant in pre-trial detention on suspicion of membership of a terrorist organisation. In the detention order, the court also noted that the offence in question was among the so-called “catalogue” offences listed in Article 100 of the Code of Criminal Procedure (“the CCP”).

4.  On 6 November 2015 the Adana public prosecutor filed an indictment with the Adana Assize Court. The applicant was charged, amongst others, with membership of an illegal organisation, as he was considered to have committed a crime on behalf of that organisation.

5.  During the period of his pre-trial detention the applicant made numerous requests for his release pending trial, which were dismissed by the Adana Assize Court. To substantiate its decisions, the Adana Assize Court referred mostly to the severity of the sentences prescribed by law for the offences concerned, the fact that the offences in question were among those listed in Article 100 § 3 of the CCP and to the risk of absconding.

6.  On 22 March 2016 the Adana public prosecutor filed another indictment, charging the applicant with deliberately attempting to kill police officers and disrupting the unity and integrity of the State. The charges were based on the same actions and events which had taken place during the demonstration of 23 August 2015. The new case was joined to the initial case.

7.  At a hearing on 12 May 2016, the Adana Assize Court decided to release the applicant from pre-trial detention.

8.  On 23 June 2016, at a hearing which the applicant did not attend, the Adana Assize Court sentenced the applicant to imprisonment for various offences including membership of a terrorist organisation, attempted premeditated murder, resisting the police, and disseminating propaganda in favour of a terrorist organisation.

9.  The Adana Assize Court issued a warrant for the applicant’s arrest and ordered his detention.

10.  By a judgment of 3 February 2017, the Court of Cassation upheld the first instance court’s judgment regarding the applicant’s conviction for membership of a terrorist organisation and quashed the remainder of the said judgment.

11.  On 8 June 2017 the Adana Assize Court gave a judgment in line with the decision of the Court of Cassation.

12.  On 11 June 2017 the arrest warrant was executed, and the applicant was placed in prison.

13.  On 14 March 2018 the Court of Cassation upheld the judgment of 8 June 2017.

14.  Following the notification of the decision of the Court of Cassation, on 20 June 2018 the applicant lodged an individual application with the Constitutional Court. He mainly complained of a violation of his constitutional rights corresponding to those under Article 5 of the Convention.

15.  In its summary decision of 29 July 2019, the Constitutional Court, referring to its established case-law, declared inadmissible the applicant’s complaints concerning the length of his pre-trial detention and the lack of reasoning in the decisions to prolong his detention, on account of his failure to comply with the thirty-day time-limit for lodging an application.

16.  Relying on Article 5 of the Convention, the applicant complained about the length of his pre-trial detention and the lack of relevant and sufficient reasons to justify his continued pre-trial detention.

THE COURT’S ASSESSMENT

17.  The Government raised two objections as to the admissibility of the application. Firstly, they submitted that the applicant had not lodged his individual application with the Constitutional Court within the thirty-day time-limit prescribed by law and invited the Court to declare the application inadmissible for non-exhaustion of domestic remedies. Secondly, the Government argued that the applicant had not availed himself of the domestic remedy set out in Article 141 of the Code of Criminal Procedure. As to the merits, the Government submitted that there had been no violation of Article 5 § 3 of the Convention, as the domestic courts had provided sufficient reasons for their decisions ordering the applicant’s pre-trial detention and its extension.

18.  The applicant did not specifically comment on the pleas of inadmissibility submitted by the Government. However, he argued that he had lodged his individual application with the Constitutional Court in compliance with the prescribed time-limit. He reiterated that his rights under Article 5 § 3 had been violated.

19.  The Court observes that, in their objection of non-exhaustion of domestic remedies on account of failure to comply with the thirty-day time‑limit for lodging an individual application with the Constitutional Court, the Government submitted that the period in question started running on the date on which the applicant had been released, that is, on 12 May 2016. They specified that the Constitutional Court had declared the individual application inadmissible for non-compliance with the thirty-day time-limit for lodging an individual application, referring to its case-law. On that account they invited the Court to declare the application inadmissible for non-exhaustion of domestic remedies.

20.  The Court reiterates at the outset that pursuant to Article 35 § 1 of the Convention it “may only deal with the matter after all domestic remedies have been exhausted”. The principles regarding the exhaustion rule are set out, inter alia, in Vučković and Others v. Serbia ((preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 69-77, 25 March 2014). In particular, Article 35 § 1 requires that the complaints intended to be made subsequently in Strasbourg should have been made to the appropriate domestic body in compliance with the formal requirements and time-limits laid down in domestic law. Where an applicant has failed to comply with those requirements, his or her application should in principle be declared inadmissible for failure to exhaust domestic remedies (ibid., § 72, and the references therein).

21.  In the instant case, the Court observes that the Constitutional Court dismissed the applicant’s complaints concerning Article 5 § 3 of the Convention on the grounds that they had not been submitted within the thirty‑day time-limit prescribed by law. The Court notes, as submitted by the Government, that the applicant was released from pre-trial detention on 12 May 2016 and lodged his individual application with the Constitutional Court on 20 June 2018. The Court further notes that, in his observations on the admissibility of the application, the applicant failed to demonstrate that he had lodged his complaints corresponding to Article 5 § 3 of the Convention within the thirty-day time-limit. In those circumstances the Court considers that the applicant failed to lodge his application with the Constitutional Court within thirty days following the date of his release from pre-trial detention and thus failed to comply with the time-limit under domestic law.

22.  Accordingly, the Court declares the application inadmissible for non‑exhaustion of domestic remedies, pursuant to Article 35 §§ 1 and 4 of the Convention.

23.  In view of the above conclusion, it is not necessary for the Court to examine separately the other objections of inadmissibility raised by the Government or the merits of the case.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 13 February 2025.

 Dorothee von Arnim Jovan Ilievski
 Deputy Registrar President