ECtHR Mercan v. Turkey (app. no. 56511/16): failure to exhaust domestic remedies

ECtHR, DEUXIÈME SECTION DÉCISION Requête no 56511/16 Zeynep MERCAN contre la Turquie,
 
 
An application concerning the lawfulness of a judge’s pre-trial detention following the coup d’état of 15 July 2016 has been rejected for failure to exhaust domestic remedies
 
In its decision in the case of Mercan v. Turkey (application no. 56511/16) the European Court of Human Rights has unanimously declared the application inadmissible. The decision is final.
 
The case concerned the pre-trial detention of a judge who was dismissed from office following the attempted coup d’état of 15 July 2016. The Court held, in particular, that Ms Mercan was required to lodge an individual application with the Constitutional Court with regard to her complaint concerning the lawfulness and duration of her pre-trial detention, which she had not done in the present case. It therefore rejected this complaint for failure to exhaust domestic remedies. The Court also rejected Ms Mercan’s complaint regarding the conditions of detention, as the applicant had not brought this complaint before the domestic authorities. Lastly, the Court held that the complaint concerning the right to a fair trial was premature at this stage.
 
 
 
 
Some remarks from Turkey, especially in view of a recent decision of the Constitutional Court of Turkey:
 
First of all the situation underlying the case Mercan is different from the situation now: the current status of the Turkish Constitutional Court has changed (overloading and the strange decision regarding the two members based not on facts but on the personal opinion of the deciding other members). So there is no remedy to the CC which helps nowadays.
 
Second there should be considered the following:
The constitutional court of Turkey dismissed the cases lodged against emergency decrees. The main opposition party lodged an application before the Constitutional Court to get the emergency decrees abolished but the court refused to handle the cases on the basis of the idea that the court doesn't have any authority to review emergency decrees. 
 
According to the current approach of the court the government is able to change the whole system of the country. For instance the government can change the regime of Republic or secularism or the capital which are unalterable provisions of the constitution.
So any provision you see in emergency laws are valid, which means you cannot challenge against their legality.
 
There should be pointed out two things:
1. The emergency decree extended pre-trial detention up to 30 days. As you know the main opposition party lodged an application before the court to abolish emergency decree in question. However the court refused to hear the case on the basis of the fact that the court does not have authority to review it. So the basis of 30-day pre-detention is still valid. Basically you cannot challenge the regulation of 30 day pre detention before the court.
2. Several applications have been brought to the court in regard with long pre detention of some individuals up to now. However, as far as we know, the court has not decided on the cases yet.

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