SECOND SECTION

DECISION

Application no . 31446/09 Ä°smet TUNCER against Turkey

The European Court of Human Rights ( Second Section ), sitting on 25 November 2014 as a Committee composed of:

Paul Lemmens, President, Robert Spano, Jon Fridrik Kjølbro, judges, and Abel Campos , Deputy Section Registrar ,

Having regard to the above application lodged on 2 June 2009 ,

Having regard to the decision of 22 January 2013 ,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Mr Ä°smet Tuncer, is a Turkish national, who was born in 1968 and lives in Istanbul. He was repr esented before the Court by Mrs G. Altay and Mr H. Karakus, lawyers 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.

1. Disciplinary proceedings

4. At the time of the events, the applicant was a public prosecutor at the YeÅŸilhisar Court in Kayseri.

5. On 6 December 1999 the Justice Inspection Office at the Ministry of Justice authorised a justice inspector ( adalet müfettişi ) to initiate a disciplinary investigation into events that had allegedly occurred at the Yeşilhisar Court. The applicant was accused of bribery and forgery of official documents.

6. On 17 April 2000 the Supreme Council of Judges and Prosecutors (“Supreme Council”), having assessed the evidence in the case file, concluded that the allegations against the applicant were well-founded and that it was not necessary to wait for the outcome of the prosecution before removing the applicant from office.

7. The applicant ’ s subsequent appeal to the Supreme Council and an objection lodged before the Objections Board were rejected on 23 October 2000 and 1 March 2001 respectively. The final decision of the Objections Board was published in the official gazette on 21 August 2001.

2. Criminal proceedings

8. On 23 February 2000 the Kayseri public prosecutor filed an indictment accusing the applicant, along with another person, with bribery and forgery of official documents under Articles 211 and 339 of the former Criminal Code .

9. On 31 March 2000 the Kayseri Assize Court issued a decision to institute criminal proceedings against the applicant in the Develi Assize Court.

10. At the first hearing on 23 May 2000, the court ordered the applicant ’ s pre-trial detention.

11. On 25 October 2000 the Kayseri Assize Court, where the judge R.Ü. was presiding, ordered the institution of criminal proceedings against lawyers C.Y. and A.S . In the same decision the court held that the file be transferred to the Develi Assize Court . According to the court, it was understood that the applicant had accepted bribes in exchange for issuing forged decisions and that the accused lawyers had committed the alleged crimes in complicity with the applicant.

12. On 14 November 2000 the case against C.Y. and A.S . was joined with that against the applicant as the two cases were linked.

13. On 22 December 2000 the applicant was released pending trial.

14. On 19 April 2001 the Develi Assize Court , where judge H.A. was sitting as the president, issued a de cision of non-jurisdiction finding it established that the accused had formed an organisation in order to commit the alleged offence. It therefore concluded that the subject matter of the case fell within the competence of the State Security Courts.

15. On an unspecified date, the Court of Cassation quashed the judgment of 19 April 2001 and referred the case back to the Develi Assize Court .

16. On 18 December 2002 the applicant requested the disqualification of the presiding judge H.A. ( hakimin reddi ) on grounds of impartiality pursuant to Article 23 of the Code of the Criminal Procedure (Law no. 1412) in force at the material time, as he previously stated his opinion on the merits in the aforementioned decision of non-jurisdiction .

17. On 25 December 2002 the applicant ’ s request was dismissed on the ground that he did not specify any reasons for his request.

18. On 25 March 2004 the Develi Assize Court convicted the applicant as charged and sentenced him to terms of eleven years and one month ’ imprisonment. The court also decided that the case against C.Y. and A.S. be separated and registered under a new reference number, as there were still a number of irregularities in their files.

19. On 9 June 2005 the Court of Cassation quashed the judgment of 25 March 2004 and ordered the re-examination of the case file in the light of the new Criminal Code.

20. On an unspecified date, the Develi Assize Court was abolished b y a decision of the Supreme Council. The case was transferred to the Kayseri Assize Court, where R.Ü. was the presiding judge. T he applicant did not attempt to disqualify that judge on grounds of impartiality pursuant to Article 23 of the new Code of Criminal Procedure (Law no. 5271 of 25 March 2005) .

21. On 7 June 2006 the Kayseri Assize Court sentenced the applicant to a total of nine years and one month of imprisonment.

22. On 4 December 2008 the Court of Cassation upheld the judgment.

B. Relevant domestic law

23. Article 23 of the Code of Criminal Procedure (Law No. 5271) provides as follows:

“(1) The judge, who has participated in the decision-making process of a decision or a judgment, must not participate in the ruling of the decision or the judgment about the same lawsuit at the court of superior jurisdiction.

(2) The judge, who has observed duties in the investigation phase at the same case, shall be excluded in the prosecution phase.

(3) The judge, who has observed duties in the previous adjudication, shall be excluded in the same matter.”

24. Article 25 of the Code of Criminal Procedure (Law No. 5271) reads as follows:

“(1) A motion to disqualify the judge on the basis of doubt concerning his impartiality may be forwarded to the court of the first instance at the beginning of the main hearing until the interrogation of the accused by the judge starts; where there is a hearing at the Regional Court of Appeal on Facts and Law , the motion to disqualify the judge can be conducted until the inspection report is read out in the main hearing; and at the Court of Cassation, until the report that had been written by the appointed member or examination judge had been disclosed to the members. At other cases, the judge may be challenged until the beginning of the inspection.

(2) On the grounds that appear or have been found out after the time limit had expired, the motion may also be submitted until the main hearing or the inspection is over. However, such a motion must be submitted within seven days after gaining knowledge of the grounds of disqualification.”

25. A description of the relevant domestic law regarding length of proceedings may be found in Turgut and Others v. Turkey ((dec.), no. 4860/09, §§ 19-26, 26 March 2013).

COMPLAINTS

26. The applicant complained under Article 6 of the Convention about the length of the criminal proceedings, which lasted approximately eight years and six months. In addition, he asserted that the period of over two and half years before the Court of Cassation had not been reasonable.

27. The applicant further maintained under Article 6 that one of the judges sitting at the Kayseri Assize Court, R.Ü., had lacked impartiality, since he had stated his opinion on the facts of the case against the applicant in the investigation stage of another set of criminal proceedings against third persons. He also argued that the comments of certain judges in the trial court and the wording of their decisions demonstrated their bias against him. In this respect, the applicant mentioned the decision of non-jurisdiction dated 19 April 2001.

THE LAW

A. As regards the applicant ’ s complaint under Article 6 § 1 of the Convention concerning the length of the criminal proceedings

28 . The applicant complained under Article 6 § 1 of the Convention that the length of the proceedings was incompatible with the principle of the “reasonable time” requirement.

29. The Government submitted 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 (cited above).

30. The applicant acknowledged the existence of the new remedy and left it to the Court ’ s discretion to decide whether he had exhausted the domestic remedies.

31. 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.

32 . Nevertheless, t he Court notes that in its decision in the case of Ümmühan Kaplan (cited above, § 77) it stressed that it could examine appl ications of this type which had already been communicated to the Government.

33 . 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 (see Yiğitdoğan v. Turkey , no. 72174/10, § 59, 3 June 2014). It therefore concludes that there are no exceptional circumstances capable of exempting the present applicant from the obligation to exhaust domestic remedies.

34 . It follows 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 concerning the impartiality of the Develi Assize Court

35. The applicant complained under Article 6 of the Convention that he had not had a fair trial as the word ing used in the decision of non ‑ jurisdiction of the Develi Assize Court dated 19 April 2001 cast doubts on the impartia lity of the adjudicating judges

36 . The Government contested the applicant ’ s argument.

37 . The Court notes that the judgment delivered by the Develi Assize Court was quashed by the Court of Cassation on 9 June 2005 which remitted the case to the Kayseri Assize Court for re-examination on the merits. As a result, it was not the Develi Assize Court which rendered the judgment on the merits in the case against the applicant.

38 . It thus follows that this part of the application is manifestly ill ‑ founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.

C . As regards the applicant ’ s complaint under Article 6 § 1 of the Convention concerning the impartiality of the Kayseri Assize Court

39 . The applicant further complained under Article 6 of the Convention that he had not received a fair trial by an impartial tribunal on account of the involvement of judge R.Ü. in his trial who had previously taken part in the investigation stage and who had demonstrated his bias against the applicant in the decision of non-jurisdiction dated 25 October 2000.

40 . The Government submitted, in reply, that the applicant had failed to exhaust the domestic remedies as he had not requested the disqualification of the judge pursuant to the Code of Criminal Procedure.

41 . The applicant contended that he had requested the disqualification of H.A., the presiding judge of the Develi Assize Court , on grounds of impartiality and referring to the irregularities at the investigation stage. H is request was however dismissed.

42 . The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges those seeking to bring a case against the State before an international judicial organ to use first the remedies provided by the national legal system, thus dispensing States from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal systems. In order to comply with the rule, normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged (see, among other authorities, Novruz Ismayilov v. Azerbaijan , no. 16794/05 , § 69, 20 February 2014 ).

43 . It must be further noted that the Court has already examined similar grievances in the past and has found that the absence of a request for the disqualification of the judge on grounds of i mpartiality pursuant to Article 23 of the Code of Criminal Procedure constituted a failure on the part of the applicants to exhaust domestic remedies ( see Yazar v. Turkey (partial decision), no. 58709/00 , 31 January 2006 , in respect of Nazmi Kar, Zekeriya Özen, Fuat Başarılı and Osman Yavuz ).

44 . Turning to the circumstances of the present case, the Court observes that the applicant never attempted to disqualify judge R.Ü. on grounds of impartiality pursuant to Article 23 of the Code of Criminal Procedure. Accordingly, the Court sees no reason to depart from its considerations in the aforementioned decision s (see also Schimanek v. Austria , (dec.) no. 32307/96 , 1 February 2000, Salaman v. the United Kingdom (dec.), no. 43505/98, 15 June 2000 and Roberts and Roberts v. the United Kingdom (dec.), no. 38681/08 , 5 July 2011 ) .

45 . It follows that this part of the application must be rejected for non ‑ exhaustion of domestic remedies within the meaning of Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares inadmissible the remainder of the application.

Abel Campos Paul Lemmens              Deputy Registrar President