SECOND SECTION

DECISION

Application no . 21806/08 Ä° smai l YILMAZ against Turkey

The European Court of Human Rights (Second Section), sitting on 14 March 2017 as a Committee composed of:

Ksenija Turković , President, Jon Fridrik Kjølbro , Georges Ravarani , judges , and Hasan Bakırcı, Deputy Section Registrar ,

Having regard to the above application lodged on 28 April 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 İsmail Yılmaz, is a Turkish national, who was born in 1972 and lives in Istanbul. He was represented before the Court by Mr A. Tatlıpınar , a lawyer practising in Istanbul.

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

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

4. On 5 September 2000 the applicant was arrested on suspicion of membership of the MLKP (Marxist-Leninist Communist Party), an illegal organisation .

5. On 9 September 2000 the judge at Istanbul State Security Court ordered the applicant ’ s pre-trial detention.

6. On 12 September 2000 the public prosecutor at the Istanbul State Security Court filed a bill of indictment against the applicant, charging him under Article 146 § 1 of the former Criminal Code with attempting to undermine the constitutional order.

7. Subsequently , the criminal proceedings against the applicant commenced before the Istanbul State Security Court.

8. On 30 June 2004, State Security Courts were abolished. The case against the applicant was transferred to the Istanbul Assize Court.

9. At the end of each hearing, the Istanbul Assize Court, considered the applicant ’ s detention either of their own motion or at the applicant ’ s request. Each time, they ordered the applicant ’ s continued detention pending trial, having regard to the nature of the offence with which he was charged, the existence of a strong suspicion that he had committed the offence and the state of evidence.

10. Subsequently, on 21 October 2009 the first instance the Istanbul Assize Court convicted the applicant and sentenced him to aggravated life imprisonment. The court also ordered the applicant ’ s continued detention.

11. On 16 February 2011 the Court of Cassation upheld the first instance court ’ s judgment and it became final.

COMPLAINTS

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

13. The applicant further contended under Article 6 § 1 of the Convention that the criminal proceedings 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

14. The applicant contended under Article 5 § 3 of the Convention that the length of his detention on remand had been unreasonably long.

15. The Government rejected the allegation, submitting that the applicant had failed to exhaust domestic remedies, referring to the possibility of claiming compensation for unlawful detention under Article 141 of the Code on Criminal Procedure (“CCP”).

16. The applicant did not comment on the Government ’ s objection.

17. The Court observes that the domestic remedy in application of Article 141 of the CPP with regard to length of detention on remand was examined in the case of 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.

18. In the instant case, the Court notes that the applicant ’ s conviction became final on 16 February 2011. From that date onwards the applicant was entitled to seek compensation under Article 141 of the CPP (see Demir , cited above, § 35), but failed to do so.

19. 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. ), 11929/12, 28 January 2014). The Court takes the view that the exception should be applied in the present case as well.

20. 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 6 § 1 of the Convention

21. The applicant complained that the length of the criminal proceedings against him did not comply with the “reasonable time” requirement of Article 6 § 1 of the Convention.

22. The Government noted that pursuant to Law no. 6384 a new 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 not exhausted domestic remedies, as he had not made any application to that Compensation Commission: this ground had also been recognised by the Court in its decision in the case of Turgut and Others (( dec. ), no. 4860/09, 26 March 2013).

23. The applicant contested this argument .

24. The Court observes that, as pointed out by the Government, a new 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 (cited above), the Court declared a new application inadmissible on the ground that the applicants had failed to exhaust domestic remedies once the new domestic remedy had come into being. 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.

25. 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 have already been communicated to the Government.

26. 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) . It therefore concludes that there are no exceptional circumstances capable of exempting the present applicant from the obligation to exhaust domestic remedies.

27. It follows 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 6 April 2017 .

Hasan Bakırcı Ksenija Turković              Deputy Registrar President