CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 13 septembre 2016

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s83BE5C30 { font-family:Arial; font-size:8pt; vertical-align:super } .s4B243ECC { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .s5F897A7E { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt } .s7E985A65 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; font-size:1pt } .sF7A4323 { margin-top:36pt; margin-bottom:0pt; text-align:left } .s5362FFEB { width:4.87pt; display:inline-block } .sD79BB263 { width:196.1pt; display:inline-block } .sA2E62387 { width:204.97pt; display:inline-block }     SECOND SECTION DECISION Application no. 81492/12 Erol ŞEN against Turkey The European Court of Human Rights (Second Section), sitting on 13   September 2016 as a Committee composed of:   Ksenija Turković, President,   Jon Fridrik Kjølbro,   Georges Ravarani, judges, and Hasan Bakırcı, Deputy Section Registrar, Having regard to the above application lodged on 22 September 2012, 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 Erol Şen, is a Turkish national, who was born in 1986 and is detained in Kocaeli. He was represented before the Court by Mr   H.   Boğatekin, 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 6 March 2012 the applicant was arrested on suspicion of membership of an illegal armed organisation. 5.     On 9 March 2012 he was brought before a judge at the Istanbul Assize Court who ordered his detention on remand. 6.     On 26 April 2012 the Istanbul public prosecutor filed an indictment with the Istanbul Assize Court, accusing the applicant of membership of an illegal armed organisation and carrying out activities aimed at breaking up the unity of the State. 7.     At the hearing held on 16 August 2012 the applicant’s request for release was rejected. The applicant filed an objection against this decision. Subsequently, on 28 September 2012 the 17 th Chamber of the Istanbul Assize Court dismissed his objection. In delivering its decision, the court took into consideration the written opinion of the public prosecutor that had not been communicated to the applicant or his representative. 8.     On 11 June 2013 the Istanbul Assize Court convicted the applicant as charged and sentenced him to a total of twenty three years and three   months’ imprisonment and a fine. 9.     On an unspecified date this decision was upheld by the Court of Cassation. COMPLAINTS 10.   The applicant complained under Article 5 §§ 4 and 5 of the Convention that he did not have an effective remedy to challenge the lawfulness of his pre-trial detention and of the lack of compensation under domestic law in respect of the lack of an effective remedy. THE LAW 11.     The Government maintained that the applicant had not exhausted the domestic remedies, as the final decision regarding the applicant’s complaints had been delivered on 28 September 2012 and that therefore he could have applied to the Constitutional Court. 12.     The applicant contested that assertion. 13.     Having examined the main aspects of the new remedy before the 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). 14.     In the present case, the final decision concerning the applicant’s complaints was delivered by the Istanbul Assize Court on 28   September 2012. Accordingly, it fell within the Constitutional Court’s temporal jurisdiction. 15.     In view of the foregoing, 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 application inadmissible.   Done in English and notified in writing on 6 October 2016.   Hasan Bakırcı   Ksenija Turković Deputy Registrar   President