SECOND SECTION

DECISION

Application no. 52850/12 Necati ABAY against Turkey

The European Court of Human Rights (Second Section), sitting on 10 December 2019 as a Committee composed of:

Julia Laffranque , President, Ivana Jelić , Arnfinn Bårdsen , judges, and Hasan Bakırcı, Deputy Section Registrar ,

Having regard to the above application lodged on 7 June 2012,

Having regard to the decision of 8 April 2014,

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 Necati Abay , is a Turkish national who was born in 1956 and lives in Istanbul. He was represented before the Court by Mrs G. Tuncer , a lawyer practising in Istanbul.

2 . The Turkish Government (“the Government”) are represented by their Agent.

3 . The facts of the case, as submitted by the parties, may be summarised as follows.

4 . On 13 April 2003 the applicant was arrested and taken into custody by police officers on suspicion of being a member of the Marxist-Leninist Communist Party (“the MLKP”), an illegal terrorist organisation. He was questioned by the police in the absence of a lawyer.

5 . On 23 July 2003 the Chief Public Prosecutor ’ s Office at the Istanbul State Security Court lodged a bill of indictment accusing the applicant of being a member of the MLKP.

6 . On 4 May 2011 the Istanbul Assize Court found the applicant guilty of the offence of leading a terrorist organisation and sentenced him to eighteen years and nine months ’ imprisonment.

7 . On 13 April 2012 the applicant ’ s lawyer lodged an appeal against that decision.

8 . On 25 September 2012 the Court of Cassation quashed the trial court ’ s decision.

9 . On 2 January 2013 the trial was restarted.

10 . On 21 May 2013 the domestic court convicted the applicant for being a member of a terrorist organisation and sentenced him to eleven years and three months ’ imprisonment.

11 . The applicant and his lawyer lodged appeals against that decision on 13 April 2012 and 23 October 2013.

12 . On 4 March 2014 the Court of Cassation upheld the decision sentencing the applicant.

13 . According to the information submitted by the Government, on 18 August 2016 the applicant lodged an application with the Constitutional Court in which he raised the same complaints raised before the Court. According to the information available to the Court, this application is still pending before the Constitutional Court

14 . A description of the relevant domestic law concerning the right of access to a lawyer may be found in Salduz v. Turkey ([G C] no. 36391/02, §§ 27 ‑ 31, ECHR 2008).

the law

15 . The applicant complained under Article 6 of the Convention that he had been denied the assistance of a lawyer during the initial stages of the criminal proceedings, and that his conviction had been based on statements he had made to the police in the absence of a lawyer. He further complained of the use of incriminating statements made by his co ‑ accused , whose right of access to a lawyer during the pre-trial stage had also been restricted under the same domestic law, to convict him.

16 . The Government raised a plea of non-exhaustion of domestic remedies, arguing that the applicant ’ s application to the Constitutional Court, which concerns the same complaints, is still pending.

17 . The applicant did not contest the Government ’ s argument regarding non-exhaustion of domestic remedies.

18 . 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 a remedy to be used (see Hasan Uzun v. Turkey , ( dec. ), no. 10755/13, §§ 68-71, 30 April 2013).

19 . The Court further notes that the Constitutional Court ’ s jurisdiction ratione temporis began on 23 September 2012, and 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.

20 . In the present case, the Court observes that the criminal proceedings against the applicant became final on 4 March 2014 with the Court of Cassation ’ s decision upholding the trial court ’ s judgment. Accordingly, the applicant ’ s criminal prosecution came within the Constitutional Court ’ s temporal jurisdiction (see Eroğlu v. Turkey ( dec. ), no 3114/07, §§ 7-11, 6 February 2018). In this respect the Court also notes that the applicant ’ s individual application is still pending before the Turkish Constitutional Court.

21 . As a result, taking into account the Government ’ s preliminary objection, the Court concludes that this complaint 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 9 January 2020 .

Hasa n Bakırcı Julia Laffranque Deputy Registrar President