SECOND SECTION

DECISION

Application no. 24870/06 Ä°smail Y Ä° Äž Ä° T against Turkey

The European Court of Human Rights (Second Section), sitting on 10 April 2018 as a Committee composed of:

Paul Lemmens, President , Valeriu Griţco , Stéphanie Mourou-Vikström , judges ,

and Hasan Bakırcı, Deputy Section Registrar ,

Having regard to the above application lodged on 19 June 2006,

Having regard to the decision of 4 May 2010,

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 İsmail Yiğit, is a Turkish national, who was born in 1966 and lives in Sinop . He was represented before the Court by Ms N. Kılıç Koç , a lawyer practising in Istanbul.

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

A. The circumstances of the case

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

4. On 17 October 1993 the applicant was arrested and taken into police custody.

5. On 26 October 1993 the applicant was placed in detention on remand.

6. On 31 December 1993 the public prosecutor filed an indictment with the Istanbul State Security Court charging the applicant with membership of a terrorist organisation and attempting to abolish and to dissolve the Constitution of the Republic of Turkey by force.

7. On 17 December 2003 the Istanbul State Security Court convicted the applicant and sentenced him to life imprisonment.

8. On 1 April 2005 the Court of Cassation quashed the judgment of the first-instance court. The case was accordingly remitted to the first ‑ instance court.

9. Following the abolition of State Security Courts by Law no. 5190, the criminal proceedings against the applicant were resumed by the Istanbul Assize Court.

10. On 21 December 2005 the Istanbul Assize Court ordered the applicant ’ s release pending trial.

11. On 18 June 2010 the Istanbul Assize Court once again convicted the applicant and sentenced him to life imprisonment.

12. On 26 September 2012 the Court of Cassation upheld the judgment of 18 June 2010.

B. Relevant domestic law

13. A description of the relevant domestic law and practice can be found in A.Ş v. Turkey (( dec. ), no. 58271/10, §§ 34-35, 13 September 2016) and Şefik Demir v. Turkey (( dec. ), no. 51770/07, §§ 29-33, 16 October 2012).

COMPLAINTS

14. The applicant complained under Article 5 § 3 of the Convention that the length of his pre-trial detention had been excessive.

15. The applicant further maintained under Article 5 § 5 that he had had no right to compensation under domestic law in respect of his complaints under Article 5 § 3 of the Convention.

16. The applicant further alleged under Article 6 § 1 of the Convention that the criminal proceedings brought against him had not been concluded within a reasonable time.

THE LAW

A. As regards the applicant ’ s complaint under Article 5 § 3 of the Convention

17. The applicant complained under Article 5 § 3 of the Convention that the length of his pre-trial detention had been excessive.

18. The Government asked the Court to reject this complaint due to non ‑ exhaustion of domestic remedies. In this respect, they argued that the applicant should seek compensation before domestic authorities pursuant to Article 141 of the Code on Criminal Procedure (“CCP”).

19. The applicant contested that argument.

20. The Court observes that the domestic remedy provided by Article 141 of the CCP with regard to length of detention on remand was examined in the case of Åžefik Demir v. Turkey (( dec. ), no. 51770/07, §§ 17 ‑ 35, 16 October 2012), where the Court held that that remedy had to be exhausted by the applicants whose convictions became final.

21. In the instant case, the Court observes that the applicant ’ s detention on remand ended on 21 December 2005 and the İstanbul Assize Court ’ s judgment convicting him became final on 26 September 2012 (see paragraph 12 above). From that date onwards the applicant was entitled to seek compensation under Article 141 of the CCP (see Şefik Demir , cited above, § 35), but he failed to do so.

22. The Court reiterates that the assessment of whether domestic remedies have been exhausted is normally carried out with reference to the date on which the application was lodged with the Court. However, as the Court has held on many occasions, this rule is subject to exceptions, which may be justified by the particular circumstances of each case (see İçyer v. Turkey ( dec. ), no. 18888/02, § 72, ECHR 2006 ‑ I). The Court has previously departed from this rule in cases concerning the above-mentioned remedy in respect of the length of detention, which became applicable after the final decision on the criminal proceedings (see also, among others, Tutal and Others v. Turkey ( dec. ), no. 11929/12, 28 January 2014). The Court takes the view that the exception should be applied in the present case as well.

23. As a result, taking into account the Government ’ s 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.

B. As regards the applicant ’ s complaint under Article 5 § 5 of the Convention

24. The applicant complained under Article 5 § 5 of the Convention that he had no right to compensation under domestic law in respect of his complaints under Article 5 of the Convention.

25. The Court reiterates that paragraph 5 of Article 5 is complied with where it is possible to apply for compensation in respect of a deprivation of liberty effected in conditions contrary to paragraphs 1, 2, 3 or 4 ( Wassink v. the Netherlands , 27 September 1990, § 38, Series A no. 185–A). As noted above (see paragraphs 17-23), the Court observes that, assuming that there has been a violation of his rights under Article 5 § 3, the applicant would have the right to claim compensation under Article 141 of the CCP, which provides an effective remedy to the applicant within the meaning of Article 5 § 5 the Convention.

26. Accordingly, it follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

C. As regards the applicant ’ s complaint under Article 6 § 1 of the Convention

27. The applicant complained that the length of the criminal proceedings against him had been incompatible with the “reasonable time” requirement laid down in Article 6 § 1 of the Convention.

28. The Government noted that pursuant to Law no. 6384 a Compensation Commission had been established to deal with applications concerning the length of proceedings and the non-execution of judgments. They maintained that the applicant had to apply to the Compensation Commission to exhaust the domestic remedies.

29. 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 decision in the case of Turgut and Others v. Turkey (( dec. ), no. 4860/09, 26 March 2013), the Court declared a new application 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 new remedy was a priori accessible and capable of offering a reasonable prospect of redress for complaints concerning the length of proceedings.

30. The Court notes that in its decision in the case of Ümmühan Kaplan (cited above, § 77) it stressed that it could nevertheless examine applications of this type which had already been communicated to the Government.

31. However, taking account of the Government ’ s preliminary objection with regard to the applicant ’ s failure to make use of the new domestic remedy established by Law no. 6384, the Court reiterates its conclusion in the case of Turgut and Others , cited above .

32. It therefore concludes that this part of 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 17 May 2018 .

Hasan Bakırcı Paul Lemmens              Deputy Registrar President