SECOND SECTION
DECISION
Application no. 17869/10
Ongun YÜCEL
against Turkey
The European Court of Human Rights (Second Section), sitting on 27 September 2016 as a Committee composed of:
Paul Lemmens, President,
Ksenija Turković,
Jon Fridrik Kjølbro, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above application lodged on 14 March 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 Ongun Yücel, is a Turkish national, who was born in 1979 and lives in Istanbul. He was represented before the Court by Ms Ö. Gümüştaş, 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 6 January 2005 the applicant was placed in detention on remand on suspicion of attempting to undermine the constitutional order, an offence proscribed by Article 146 § 1 of the former Criminal Code.
5. On 31 January 2008 the applicant was convicted and sentenced to seven years and six months’ imprisonment.
6. On 6 May 2009 the Court of Cassation quashed that judgment. The case file was accordingly remitted to the Ankara Assize Court.
7. On 15 September 2009 the Ankara Assize Court released the applicant.
8. On 28 August 2012 the Ankara Assize Court convicted the applicant of membership of an illegal armed terrorist organisation and sentenced him to seven years and six months’ imprisonment.
9. On 8 July 2013 the judgment of the first-instance court was upheld by the Court of Cassation and became final.
COMPLAINTS
10. The applicant maintained under Article 5 § 3 of the Convention that the length of his pre-trial detention had been excessive.
11. Relying on Article 5 § 4 of the Convention, the applicant further alleged that there had been no effective remedy to challenge the lawfulness of the pre‑trial detention.
12. The applicant also complained of a violation of Article 5 § 5, in conjunction with Article 5 § 3 of the Convention.
13. Finally, the applicant maintained under Article 6 § 1 of the Convention that the criminal proceedings against him had not been concluded within a reasonable time.
THE LAW
A. Regarding 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. Referring to the possibility of claiming compensation for unlawful detention under Article 141 of the Criminal Procedure Code (Law No. 5271), the Government submitted that the applicant had failed to exhaust domestic remedies.
16. The applicant did not make any comments on the Government’s objections.
17. The Court recalls that in its decision in the case of Demir v. Turkey (no. 51770/07, §§ 17-35, 16 October 2012), it has examined a similar complaint and declared it inadmissible for non‑exhaustion of domestic remedies as the applicant had failed to use the remedy provided in Article 141 of the Code of Criminal Procedure, despite the fact that the first‑instance court’s judgment against him had become final.
18. In the instant case, the Court observes that the applicant’s detention on remand ended on 15 September 2009 and the Ankara Assize Court’s judgment convicting him became final on 8 July 2013 with the Court of Cassation’s decision (see paragraph 9 above). As a result, from that date onwards, the applicant had the possibility of initiating compensation proceedings pursuant to Article 141 of the Criminal Procedure Code; however he 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. It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
B. Regarding 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 recognized by the Court in its decision in the case of Turgut and Others v. Turkey ((dec.), no. 4860/09, 26 March 2013).
23. The applicant did not make any comments on the Government’s objections.
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. 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.
C. As to the remaining complaints
28. Regarding the applicant’s remaining complaints raised under Article 5 §§ 4 and 5 of the Convention and in the light of all the material in its possession, the Court finds that the applicant’s submissions do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be declared inadmissible as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 20 October 2016.
Hasan BakırcıPaul Lemmens
Deputy RegistrarPresident
Full & Egal Universal Law Academy