SECOND SECTION
\nDECISION<\/p>\n
Application no. 65206\/10
\nMurat \u0130PEK
\nagainst Turkey<\/p>\n
The European Court of Human Rights (Second Section), sitting on 3\u00a0July 2018 as a Committee composed of:<\/p>\n
LediBianku, President,
\nNeboj\u0161a Vu\u010dini\u0107,
\nJon Fridrik Kj\u00f8lbro, judges,
\nand Hasan Bak\u0131rc\u0131, Deputy Section Registrar,<\/p>\n
Having regard to the above application lodged on 6 September 2010,<\/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, Mr Murat \u0130pek, is a Turkish national, who was born in\u00a01979 and lives in Istanbul. He was represented before the Court by Mr\u00a0E.\u00a0Kanar, a lawyer practising 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 27 November 2005 the applicant was arrested by the police.<\/p>\n 5.\u00a0\u00a0On 29 November 2005 the judge at the Istanbul Assize Court ordered the applicant\u2019s detention on remand.<\/p>\n 6.\u00a0\u00a0On 22 December 2005 the public prosecutor filed an indictment with the Istanbul Assize Court, charging the applicant with, inter alia, membership of a terrorist organisation.<\/p>\n 7.\u00a0\u00a0On 10 September 2008 the Istanbul Assize Court convicted the applicant as charged and sentenced him to a total of eleven years and three months\u2019 imprisonment. The court also ordered the continuation of the applicant\u2019s detention.<\/p>\n 8.\u00a0On 28 June 2011 the Court of Cassation quashed the judgment. The case was accordingly remitted to the Istanbul Assize Court.<\/p>\n 9.\u00a0On 15 February 2012 the Istanbul Assize Court ordered the applicant\u2019s release pending trial.<\/p>\n 10.\u00a0On 18 December 2012 the Istanbul Assize Court once again convicted the applicant and sentenced him to a total of nine years and eleven months\u2019 imprisonment and a fine.<\/p>\n 11.\u00a0\u00a0The applicant appealed against the judgment of 18 December 2012 and according to the latest information in the file, the proceedings are pending before the Court of Cassation.<\/p>\n 12.\u00a0\u00a0On 21 August 2013 the applicant applied to the Compensation Commission established by the Law no. 6834 complaining about the length of criminal proceedings. In a decision dated 6 June 2014 the Compensation Commission suspended the examination of the applicant\u2019s complaint concerning the length of proceedings pending the outcome of the Court\u2019s decision on exhaustion of domestic remedies.<\/p>\n B.\u00a0\u00a0Relevant domestic law and practice<\/strong><\/p>\n 13.\u00a0\u00a0A description of the relevant domestic law and practice can be found in A.\u015e. v. Turkey (no. 58271\/10, \u00a7 34-35, 13 September 2016), \u015eefikDemir v.\u00a0Turkey ((dec.), no. 51770\/07, \u00a7\u00a7 29-33, 16 October 2012), and Turgut and Others v. Turkey ((dec.), no. 4860\/09, \u00a7\u00a7 19-26, 26 March 2013).<\/p>\n COMPLAINTS<\/strong><\/p>\n 14.\u00a0\u00a0The applicant complained under Article 5 \u00a7 3 of the Convention that the length of his pre-trial detention had been excessive. He also alleged under Article 6 \u00a7 2 that his right to be presumed innocent was violated because he had been detained on remand for an excessive length of time.<\/p>\n 15.\u00a0\u00a0The applicant maintained under Article 6 \u00a7 1 of the Convention that the criminal proceedings 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. He further complained under Article 6 \u00a7 2 of the Convention that his right to be presumed innocent had been violated because he had been detained for an excessive length of time.<\/p>\n 17.\u00a0\u00a0The Court considers that it is more appropriate to examine the applicant\u2019s complaints from the standpoint of Article 5 \u00a7 3 alone as they mainly concern the length of the applicant\u2019s pre-trial detention (see Can v.\u00a0Turkey (dec.), no. 6644\/08, 14 April 2009).<\/p>\n 18.\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 19.\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\u00a085\u201195, 13\u00a0September 2016) and \u015eefikDemir v. Turkey, ((dec.), no.\u00a051770\/07, \u00a7\u00a7\u00a017-35, 16October 2012).<\/p>\n 20. In 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 21.\u00a0\u00a0In the instant case, the Court notes that the applicant\u2019s detention ended on 15 February 2012 with his release from detention on remand, yet there is no any 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 22.\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\u2011I). 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 23.\u00a0\u00a0As a result, taking into account the Government\u2019s objection, the Court concludes that the application must be rejected under Article 35 \u00a7\u00a7\u00a01 and\u00a04 of the Convention for non-exhaustion of domestic remedies.<\/p>\n B.\u00a0\u00a0As regards the applicant\u2019s complaint under Article 6 \u00a7 1 of the Convention<\/strong><\/p>\n 24.\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 25.\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 26.\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.\u00a0Turkey (no. 24240\/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 27.\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 28.\u00a0\u00a0However, taking account of the Government\u2019s preliminary objection, and of the fact that the applicant informed the Court that he applied to the above-mentioned Commission after his application had been communicated to the Government, and of the decision dated 6 June 2014 by the Compensation Commission suspending the examination of the applicant\u2019s complaint concerning the length of proceedings pending the decision of the Court on non-exhaustion of domestic remedies, the Court reiterates its conclusion in the case of Turgut and Others (cited above).<\/p>\n 29.\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\u00a0\u00a0 LediBianku
\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