SECOND SECTION

DECISION

Application no. 31943/08 Mahmut TOPALAR against Turkey

The European Court of Human Rights (Second Section), sitting on 20 November 2018 as a Committee composed of:

Ledi Bianku, President, Jon Fridrik Kjølbro , Ivana Jelić , judges, and Hasan Bakırcı, Deputy Section Registrar ,

Having regard to the above application lodged on 20 June 2008,

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 Mahmut Topalar , is a Turkish national who was born in 1969 and lives in Adapazarı. He is represented before the Court by Mr Burhan Kızılgedik , a lawyer practising in Istanbul.

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

3. On 5 December 1997 the applicant was arrested and criminal proceedings were brought against him. He was remanded in custody pending trial.

4. On 4 November 1999 the applicant was acquitted of the charges against him.

5. On 14 March 2003 the applicant initiated compensation proceedings before the Sakarya Assize Court, pursuant to Law no. 466, on account of his unlawful detention between 5 December 1997 and 4 November 1999.

6. On 1 October 2003 the court awarded the applicant 1,411,155,155,500 Turkish Liras (TRL) [1] for pecuniary damage and TRL 500,000,000 for non-pecuniary damage.

7. On 11 March 2004 the Court of Cassation quashed the above judgment, finding that the amount of non-pecuniary compensation had been insufficient.

8. On 4 June 2004 the court awarded the applicant TRL 1,431,092,700 and TRL 3,000,000,000 for pecuniary and non-pecuniary compensation, respectively.

9. On 10 November 2005 the Court of Cassation quashed the judgment once again due to the insufficient amount of non-pecuniary compensation and the absence of applicable interest rate.

10. On 4 May 2006 the Sakarya Assize Court awarded the applicant the same amount for pecuniary compensation and TRY 6,000 for non-pecuniary compensation. Furthermore, the court ruled that the statutory interest rate should be applied to the compensation amounts, running from the date of the applicant ’ s arrest.

11. On 16 April 2009 the Court of Cassation upheld the first-instance court ’ s judgment.

12. According to the latest information in the case-file, the compensation award has not yet been paid to the applicant.

COMPLAINTS

13. Relying on Article 6 § 1 of the Convention, the applicant complained that the compensation proceedings had been conducted without an oral hearing and that he had not been notified of the public prosecutor ’ s opinion during the proceedings. Under the same provision, the applicant alleged that the proceedings had not been concluded within a reasonable time.

14. Relying on Article 6 § 1 and Article 1 of Protocol No.1 to the Convention, the applicant also complained about the non-enforcement of the domestic court decision.

THE LAW

A. Complaints concerning the length of the proceedings and non ‑ enforcement of the domestic court judgment

15. The applicant complained under Article 6 § 1 and Article 1 of Protocol No. 1 to the Convention that he had not been paid the compensation amount awarded by the domestic courts. Relying on Article 6 § 1 of the Convention, he also complained about the unreasonable length of domestic proceedings.

16. The Government noted that pursuant to Law no. 6384 a Compensation Commission had been established in Turkey to deal with applications concerning the length of proceedings, the delayed execution of judgments and the non-execution of judgments. Accordingly, they maintained that the applicant had not exhausted domestic remedies, as he had not made any application to the Compensation Commission.

17. The Court observes that, as pointed out by the Government, a domestic remedy has been established in Turkey following the application of the pilot judgment procedure in the case of Ümmühan Kaplan v. Turkey (no. 24240/07, 20 March 2012). Subsequently, in its decisions in the cases of Turgut and Others v. Turkey (( dec. ), no. 4860/09, 26 March 2013) and Demiroğlu and Others v. Turkey (( dec. ), no. 56125/10, 4 June 2013), the Court declared the applications inadmissible on the ground that the applicants had failed to exhaust domestic remedies, that is to say the new remedy. In so doing, the Court considered in particular that this remedy was a priori accessible and capable of offering a reasonable prospect of redress for complaints concerning the length of proceedings and the failure of the authorities to enforce judicial decisions.

18. The Court notes that in its judgment in the case of Ümmühan Kaplan (cited above, § 17), it stressed that it could nevertheless examine, under its normal procedure, applications of that type which had already been communicated to the Government.

19. However, taking into account the Government ’ s preliminary objection with regard to the domestic remedy established by Law no. 6384, the Court reiterates its conclusion in the cases of Turgut and Others and Demiroğlu and Others , cited above.

20. In view of the above, the Court concludes that the applicant ’ s complaints regarding the length of domestic proceedings and the non ‑ enforcement of the domestic court judgment in his favour should be rejected under Article 35 §§ 1 and 4 of the Convention for non ‑ exhaustion of domestic remedies.

B. Complaint concerning the non-communication of the public prosecutor ’ s opinion

21. The applicant complained that the non-communication of the public prosecutor ’ s opinion during the proceedings before the Assize Court had violated his right to an adversarial and fair hearing. In this respect, he relied on Article 6 § 1 of the Convention.

22. The Government rejected the allegation.

23. The Court notes that it has already examined the same issue in the case of Kılıç and others v. Turkey (( dec. ), no. 33162/10, §§ 19 ‑ 32, 3 December 2013) and considered that the applicants had not suffered a significant disadvantage. Accordingly, it has declared this complaint inadmissible in accordance with Article 35 § 3 (b) of the Convention.

24. Having regard to the content of the opinion filed by the public prosecutor - which was in favour of the applicant- in the proceedings before the Assize Court, the Court finds no particular reasons in the present application that would require it to depart from its findings in the aforementioned Kılıç and others case.

25. In the light of the foregoing, this complaint is inadmissible and must be rejected pursuant to Article 35 §§ 3 (b) and 4 of the Convention.

C. Complaint concerning the absence of an oral hearing

26. The applicant argued when deciding on his compensation case, no oral hearing had been held before the Assize Court. In this respect, he relied on Article 6 § 1 of the Convention.

27. The Government denied the allegations. They stated that the applicant and/or his lawyer had attended the hearings held before the Sakarya Assize Court. In this respect, they submitted the minutes of the relevant court hearings, indicating that the applicant and/or his representative was present during the hearings.

28. The Court observes from the documents submitted by the Government that the applicant and his representative had participated in several hearings held before the assize court that decided on his compensation claim.

29. In the light of the above, the Court concludes that the applicant ’ s allegations under this head should be rejected as being manifestly ill ‑ founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

D. Other Complaints

30. The applicant complained under Article 13 that the amount of compensation awarded together with the rate of statutory interest had not been sufficient to compensate the damage he had incurred. He further complained about the insufficiency of the interest rate awarded by the domestic courts at a time of high inflation.

31. In the light of all the material in its possession and in so far as the matters complained of are within its competence, the Court concludes that these complaints does not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. Accordingly, the Court rejects this part of the application as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 13 December 2018 .

Hasan Bakırcı Ledi Bianku Deputy Registrar President

[1] . Equivalent of 93,827.93 TRY.

On 1 January 2005 the Turkish Lira ( TRY ) entered into circulation, replacing the former Turkish Lira (TRL). 1 TRY = TRL 1,000,000.