SECOND SECTION
\nDECISION<\/p>\n
Application no. 25357\/10
\nKerim YEN\u0130D\u00dcNYA
\nagainst Turkey<\/p>\n
The European Court of Human Rights (Second Section), sitting on 3\u00a0July 2018 as a Committee composed of:<\/p>\n
Paul Lemmens, President,
\nValeriu Gri\u0163co,
\nSt\u00e9phanie Mourou-Vikstr\u00f6m, judges,
\nand Hasan Bak\u0131rc\u0131, Deputy Section Registrar,<\/p>\n
Having regard to the above application lodged on 14 April 2010,<\/p>\n
Having regard to the decision of 5 June 2012,<\/p>\n
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,<\/p>\n
Having deliberated, decides as follows:<\/p>\n
THE FACTS<\/strong><\/p>\n 1.\u00a0\u00a0The applicant, MrKerimYenid\u00fcnya, is a Turkish national, who was born in 1970 and lives in Istanbul.<\/p>\n 2.\u00a0\u00a0The Turkish Government (\u201cthe Government\u201d) were represented by their Agent.<\/p>\n A.\u00a0\u00a0The circumstances of the case<\/strong><\/p>\n 3.\u00a0\u00a0The facts of the case, as submitted by the parties, may be summarised as follows.<\/p>\n 4.\u00a0\u00a0On 23 January 2003 the applicant was taken into custody.<\/p>\n 5.\u00a0\u00a0On 26 January 2003 the applicant was placed in detention on remand.<\/p>\n 6.\u00a0\u00a0On 17 February 2003 and 16 January 2004, respectively, the public prosecutor filed indictments with the \u0130stanbul State Security Court charging the applicant with, inter alia, forming an organisation with the intention to commit crimes and membership of that criminal organisation. The cases were joined at a later stage of the proceedings.<\/p>\n 7.\u00a0\u00a0Following the abolition of State Security Courts by Law no. 5190, the criminal proceedings against the applicant were resumed before the \u0130stanbul Assize Court.<\/p>\n 8.\u00a0\u00a0On 9 April 2008 the \u0130stanbul Assize Court convicted the applicant as charged and sentenced him to life imprisonment for murder and to a total of thirteen years, nine months\u2019 imprisonment for the remaining accusations brought against him.<\/p>\n 9.\u00a0\u00a0On 20 July 2010 the Court of Cassation quashed the judgment of the first-instance court. The case was accordingly remitted before the first\u2011instance court.<\/p>\n 10.\u00a0\u00a0On 12 January 2011 the \u0130stanbul Assize Court ordered the applicant\u2019s release pending trial.<\/p>\n 11.\u00a0\u00a0According to the latest information, the criminal proceedings against the applicant were still pending.<\/p>\n B.\u00a0\u00a0Relevant domestic law and practice<\/strong><\/p>\n 12.\u00a0\u00a0A description of the relevant domestic law and practice can be found in A.\u015e. v. Turkey (no. 58271\/10, \u00a7\u00a7 34-35, 13 September 2016), \u015eefikDemir v. Turkey ((dec.), no. 51770\/07, \u00a7\u00a7 29-33, 16 October 2012) andTurgut and Others v. Turkey ((dec.), no. 4860\/09, \u00a7\u00a7 19-26, 26 March 2013).<\/p>\n COMPLAINTS<\/strong><\/p>\n 13.\u00a0\u00a0The applicant complained under Article 5 \u00a7 3 of the Convention that the length of his pre-trial detention had been excessive.<\/p>\n 14.\u00a0\u00a0The applicant further maintained under Article 5 \u00a7 5 that he had no right to compensation under domestic law in respect of his complaint under Article 5 of the Convention.<\/p>\n 15.\u00a0\u00a0Finally, the applicant alleged under Article 6 \u00a7 1 of the Convention that the criminal proceedings brought against him had not been concluded within a reasonable time.<\/p>\n THE LAW<\/strong><\/p>\n A.\u00a0\u00a0As regards the applicant\u2019s complaint under Article 5 \u00a7 3 of the Convention<\/strong><\/p>\n 16.\u00a0\u00a0The applicant complained under Article 5 \u00a7 3 of the Convention that the length of his pre-trial detention had been excessive.<\/p>\n 17.\u00a0\u00a0The Government asked the Court to reject this complaint due to non\u2011exhaustion of domestic remedies. In this respect, they submitted that the applicant should request compensation pursuant to Article 141 of the Code on Criminal Procedure (\u201cCCP\u201d).<\/p>\n 18.\u00a0\u00a0The Court observes that the domestic remedy in application of Article\u00a0141 \u00a7 1 (d) of the CCP with regard to length of detention on remand was examined in the cases of A.\u015e. v. Turkey (no. 58271\/10, \u00a7 85-95, 13\u00a0September 2016) and \u015eefikDemir v. Turkey ((dec.), no. 51770\/07, \u00a7\u00a7\u00a017\u201135, 16 October 2012).<\/p>\n 19.\u00a0\u00a0In the case of \u015eefikDemir (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.\u015e. (cited above, \u00a7 92) that as of June 2015 the domestic remedy provided for in Article 141 \u00a7 1 (d) of the CCP had to be exhausted by the applicants even before the proceedings became final.<\/p>\n 20.\u00a0\u00a0In the instant case, the Court notes that the applicant\u2019s detention ended on 12 January 2011 with his release from detention on remand, yet there is no information whether the proceedings against him are still pending or have become final. However, the Court observes that the applicant was entitled, in both situations, to seek compensation under Article\u00a0141 \u00a7 1 (d) of the CCP. However, he failed to do so.<\/p>\n 21.\u00a0\u00a0The 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 \u0130\u00e7yer v.\u00a0Turkey (dec.), no. 18888\/02, \u00a7 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.<\/p>\n 22.\u00a0\u00a0As a result, taking into account the Government\u2019s objection, the Court concludes that this part of the application must be rejected under Article\u00a035 \u00a7\u00a7 1 and 4 of the Convention for non-exhaustion of domestic remedies.<\/p>\n B.\u00a0\u00a0As regards the applicant\u2019s complaint under Article 5 \u00a7 5 of the Convention<\/strong><\/p>\n 23.\u00a0\u00a0The applicant complained under Article 5 \u00a7 5 of the Convention that he had no right to compensation under domestic law in respect of his complaint under Article 5 of the Convention.<\/p>\n 24.\u00a0\u00a0The Court reiterates that paragraph 5 of Article 5 is complied with where it is possible to apply for compensation in respect of a deprivation of liberty effected in conditions contrary to paragraphs 1, 2, 3 or 4 (Wassink v.\u00a0the Netherlands, 27 September 1990, \u00a7 38, Series A no. 185-A). As noted above (see paragraphs 16-22), the Court observes that, even assuming that there has been a violation of his rights under Article 5, \u00a7 1, 2, 3 or 4, the applicant would have the right to claim compensation under Article 141 of the CCP, which provides an effective\u00a0remedy to the applicant within the meaning of Article 5 \u00a7 5 the Convention.<\/p>\n 25.\u00a0\u00a0Accordingly, it follows that this part of the application is manifestly ill\u2011founded and must be rejected in accordance with Article 35 \u00a7\u00a7 3 (a) and of the Convention.<\/p>\n C.\u00a0\u00a0As regards the applicant\u2019s complaint under Article 6 \u00a7 1 of the Convention<\/strong><\/p>\n 26.\u00a0\u00a0The applicant complained that the length of the criminal proceedings against him had been incompatible with the \u201creasonable time\u201d requirement laid down in Article 6 \u00a7 1 of the Convention.<\/p>\n 27.\u00a0\u00a0The 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 applicant had to apply to the Compensation Commission to exhaust the domestic remedies.<\/p>\n 28.\u00a0\u00a0The 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 \u00dcmm\u00fchan Kaplan v. Turkey (no.\u00a024240\/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.<\/p>\n 29.\u00a0\u00a0The Court notes that in its decision in the case of \u00dcmm\u00fchan Kaplan (cited above, \u00a7 77) it stressed that it could nevertheless examine applications of this type which had already been communicated to the Government.<\/p>\n 30.\u00a0\u00a0However, taking account of the Government\u2019s preliminary objection with regard to the applicant\u2019s 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).<\/p>\n 31.\u00a0\u00a0It therefore concludes that this part of the application must be rejected under Article 35 \u00a7\u00a7 1 and 4 of the Convention for non\u2011exhaustion of domestic remedies.<\/p>\n For these reasons, the Court, unanimously,<\/p>\n Declares the application inadmissible.<\/p>\n Done in English and notified in writing on 6 September 2018.<\/p>\n Hasan Bak\u0131rc\u0131\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Paul Lemmens
\nDeputy Registrar\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n