SECOND SECTION

DECISION

Application no. 23475/10 Sinan SAYAN and Nesrin AKGÜ L against Turkey

The European Court of Human Rights (Second Section), sitting on 21 November 2017 as a Committee composed of:

Ledi Bianku, President,

Valeriu Griţco ,

Stéphanie Mourou-Vikström , judges,

and Hasan Bakırcı, Deputy Section Registrar ,

Having regard to the above application lodged on 30 March 2010,

Having regard to the decision of 19 June 2012,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

1. The applicants, Ms Sinan Sayan and Ms Nesrin Akgül , are Turkish nationals, who were born in 1966 and 1981 respectively. The first applicant lives in Diyarbakır and the second applicant is detained in the Diyarbakır Prison. They were represented before the Court by Ms R. Yalçındağ Baydemir , a lawyer practising in Diyarbakır.

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 6 November 2008 the applicants were taken into police custody in Van on suspicion of membership of a terrorist organisation.

5. On 10 November 2008 the applicants were placed in detention on remand on the order of the Diyarbakır Assize Court.

6. Criminal proceedings were brought against the applicants on charges of membership of a terrorist organisation. Subsequently, on 6 May 2010 the first applicant was released pending trial by a decision of the Malatya Assize Court.

7. On 16 May 2016 the Ankara Batı Assize Court convicted the applicants as charged. According to the latest information in the case file, the proceedings are still pending before the Court of Cassation.

B. Relevant domestic law

8. A description of the relevant domestic law and practice can be found in Turgut and Others v. Turkey (( dec. ), no. 4860/09, §§ 19-26, 26 March 2013); Koçintar v. Turkey (( dec. ), no. 77429/12, §§ 9-26, 39, 1 July 2014); and A.Ş. v. Turkey (no. 58271/10, § 34-35, 13 September 2016).

COMPLAINTS

9. The applicants complained under Article 5 § 3 of the Convention about the length of their detention on remand.

10. The applicants further alleged under Article 6 § 1 of the Convention that that the criminal proceedings against them had not been completed within a reasonable time.

THE LAW

A. Article 5 § 3 of the Convention

11. The Government maintained that the applicants had not exhausted domestic remedies. In respect of the first applicant, referring to the possibility of claiming compensation for unlawful detention under Article 141 § 1 (d) of the Code on Criminal Procedure (“CCP”), the Government asked the Court to reject this part of the application. In respect of the second applicant, the Government stated that as she was still in detention on remand on 23 September 2012, the second applicant should have applied to the Constitutional Court.

12. Regarding the first applicant, the Court observes that the domestic remedy in application of Article 141 § 1 (d) of the CCP with regard to length of detention on remand was examined in the cases of Demir v. Turkey , (( dec. ), no. 51770/07, §§ 17-35, 16 October 2012) and A.Ş. v. Turkey (no. 58271/10, § 85-95, 13 September 2016). In the case of Demir (cited above) the Court held that that remedy had to be exhausted by the applicants whose convictions became final. It further ruled in its judgment of A.Ş. (cited above, § 92) that as of June 2015 the domestic remedy provided for in Article 141 § 1 (d) of the CCP had to be exhausted by the applicants even before the proceedings became final.

13. In the instant case, the Court notes that the first applicant ’ s detention ended on 6 May 2010 with her release from detention on remand. The Court therefore observes that the applicant was entitled to seek compensation under Article 141 § 1 (d) of the CCP. However, she failed to do so.

14. As regards the second applicant, the Court reiterates that having examined the main aspects of the new remedy before the Turkish Constitutional Court, the Court has 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 Uzun v. Turkey , ( dec. ), no. 10755/13, §§ 68-71, 30 April 2013). The Court further notes that the Constitutional Court ’ s jurisdiction ratione temporis had begun on 23 September 2012 and that 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.

15. In the present case, the second applicant ’ s detention started 6 November 2008 and ended on 16 May 2016 by the judgment convicting her. Accordingly, the second applicant ’ s detention, including the period before 23 September 2012, fell within the Constitutional Court ’ s temporal jurisdiction (see Koçintar v. Turkey ( dec. ), no 77429/12, §§ 15-26, 39, 1 July 2014, and Levent Bektaş v. Turkey , no. 70026/10, §§ 40-42, 16 June 2015 ).

16. 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.

17. As a result, taking into account the Government ’ s objections, the Court 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.

B. Article 6 of the Convention

18. 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 applicants had to apply to the Compensation Commission to exhaust the domestic remedies.

19. 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.

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

21. However, taking account of the Government ’ s preliminary objection with regard to the applicants ’ 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).

22. 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 remainder of the application inadmissible .

Done in English and notified in writing on 14 December 2017 .

Hasan Bakırcı Ledi Bianku              Deputy Registrar President