SECOND SECTION
DECISION
Application no. 29188/09
Faik ELMAS and Hazni DOGAN
against Turkey
The European Court of Human Rights (Second Section), sitting on 28 January 2014 as a Committee composed of:
Dragoljub Popović, President,
Paulo Pinto de Albuquerque,
Helen Keller, judges,
and Stephen Phillips, Acting Deputy Section Registrar,
Having regard to the above application lodged on 7 May 2009,
Having deliberated, decides as follows:
THE FACTS
The applicants, Mr Faik Elmas and Mr Hazni Doğan, are Turkish nationals, who were born in 1977 and 1984 respectively and live in Istanbul. They were represented before the Court by Mr M. Erbil, a lawyer practising in Istanbul.
The Turkish Government were represented by their Agent.
A. The circumstances of the case
On 6 June 2001 the applicants were arrested on suspicion of making propaganda for an illegal organisation, namely the PKK (the Workers’ Party of Kurdistan). On 7 June 2001 they were placed in detention on demand. One of the applicants, H.D., who was a minor at the time, was released the same day. On 12 June 2001 the Public Prosecutor at the Istanbul State Security Court filed an indictment with that court, the applicants with aiding and abetting the PKK. On 19 November 2001 the other applicant, F.E., was released pending trial. In 2004, following a constitutional amendment, State Security Courts were abolished and the applicants’ case was transferred to the Istanbul Assize Court.
On 20 May 2009 the Assize Court discontinued the proceedings as the statutory time-limit concerning the charges against the applicants had expired.
B. Relevant domestic law
A description of the relevant domestic law may be found in Müdür Turgut and Others ((dec.), no. 4860/09, §§ 19-26, 26 March 2013).
COMPLAINTS
The applicants complain under Article 6 § 1 of the Convention that the proceedings before the national court had not been concluded within a reasonable time.
The applicants allege violation of Article 13 of the Convention that there was no effective remedy under Turkish law.
THE LAW
I. ALLEGED VIOLATION OF THE LENGTH OF THE PROCEEDINGS
The applicant complained that the length of the proceedings had been incompatible with the principle of the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by a ... tribunal...”
The Court observes that a new domestic remedy has been established in Turkey after the application of the pilot judgment procedure in the case of Ümmühan Kaplan v. Turkey (no. 24240/07, 20 March 2012). The Court recalls that in its decision in the case of Turgut and others v. Turkey (no. 4860/09, 26 March 2013), it declared a new application inadmissible on the ground that the applicants had failed to exhaust the domestic remedies as a new domestic remedy had been envisaged. In so doing, the Court in particular considered that this new remedy was, a priori, accessible and capable of offering a reasonable prospect of redress for complaints concerning the length of proceedings.
The Court further recalls that in its judgment in the case of Ümmühan Kaplan v. Turkey (cited above, § 77) it stressed that it could pursue the examination of applications of this type which were already communicated to the Government.
The Government requested the Court to declare this application inadmissible for non-exhaustion of domestic remedies, considering Law no. 6384 which provides for a remedy capable of redressing the Convention grievances of persons who complain about the length of proceedings. The applicants contested the Government’s argument.
In the light of the case of Müdür Turgut and Others, cited above, there are no exceptional circumstances capable of exempting the present applicants from the obligation to exhaust domestic remedies. Accordingly, the applicants should avail themselves of the new remedy offered by Law no. 6384.
It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
The applicants also complain that there was no effective remedy under Turkish law. They rely in this regard on Article 13 of the Convention, which provides:
“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
The Court recalls that it has also held that the Compensation Commission established by Law no. 6384 provides to the applicant for a remedy within the meaning of Article 13 of the Convention to complain about the length of proceedings to purposes of Article 6 § 1 relating to all applications pending before the Court, but not yet communicated to the respondent Government before 23 September 2012 (Müdür Turgut and Others, cited above, § 59).
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.
For these reasons, the Court unanimously
Declares the application inadmissible.
Stephen PhillipsDragoljub Popović
Acting Deputy RegistrarPresident
Full & Egal Universal Law Academy