CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 21 novembre 2023

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Bataray Saman, a lawyer practising in Diyarbakır; Having deliberated, decides as follows: SUBJECT MATTER OF THE CASE 1.     The application essentially concerns the length of civil proceedings, which were initiated by the applicants’ relative, Ms N.G., before the labour courts. Following Ms N.G.’s death, the applicants pursued the proceedings before the domestic courts. They allege a violation of Article 6 of the Convention. The proceedings before the civil courts 2.     On 8 November 2010 Ms N.G., the deceased relative of the applicants, initiated an action for the determination of the period of service ( hizmet tespiti ) against her employer before the Diyarbakır Labour Court. 3.     On 27 May 2014 the court accepted Ms N.G.’s claims and ruled in her favour. At an unspecified date, the Court of Cassation quashed the first instance court’s decision. 4.     Upon remittal of the case, on 30 January 2019, the competent labour court partly accepted the claims of the applicants’ relative. On 11   June 2020 the Court of Cassation quashed once more the lower court’s decision and remitted the case to it for further consideration. 5.     On 3 March 2021 the labour court, complying with the decision of the Court of Cassation, dismissed Ms N.G.’s case. On 15 September 2021 the Court of Cassation upheld this judgment. Thus, the judgment of the first instance court became final. The individual application before the Constitutional Court 6 .     On 23 March 2021 the applicants lodged an individual application with the Constitutional Court complaining essentially about the excessive length of the proceedings before the labour courts. 7.     On 18 May 2023 the Constitutional Court declared this application inadmissible for non-exhaustion of the available remedies, on account of the applicants’ failure to lodge a claim for compensation for unreasonable length of civil proceedings with the Compensation Commission under Law no.   6384. 8.     The Constitutional Court first noted that under the latest amendments to Law no. 6384 on the resolution, by means of compensation, of applications lodged with the Court concerning length of judicial proceedings and non‑enforcement or delayed enforcement of judicial decisions (“Law no.   6384”), the Compensation Commission’s competence ratione temporis had been extended to give it the power to examine certain categories of applications (including complaints relating to the length of proceedings) lodged with the Constitutional Court on or before 9 March 2023. Then, referring to its judgment in the case of Ferat Yüksel (see paragraphs   12-13 below), in which a complaint related to the length of proceedings was found inadmissible for non-exhaustion of the remedy provided for by Law no. 6384, it underlined the subsidiary role of the individual application mechanism and declared that the Compensation Commission was apparently an accessible remedy capable of offering a reasonable prospect of obtaining redress for complaints related to the length of judicial proceedings. It concluded that the content of the applications submitted by the applicants did not allow it to depart from this case law. RELEVANT DOMESTIC LAW AND PRACTICE 9.     The Compensation Commission was set up by Law no. 6384 in order to provide for the settlement, by means of compensation, of applications lodged with the Court concerning length of judicial proceedings and non-enforcement or delayed enforcement of judicial decisions. A full description of the relevant domestic law may be found in Turgut and Others v.   Turkey ((dec.), no. 4860/09, §§ 19-26, 26 March 2013). 10.     Later on, the Compensation Commission’s competence ratione materiae was extended via decrees ( see Altay v. Turkey (no. 2) , no.   11236/09, §§   29-31, 9 April 2019). 11 .     On 25 July 2018 Provisional Article 2 was added to Law no.   6384 according to which pending individual applications that were lodged with the Constitutional Court before 31 July 2018 for the alleged failure to conduct a trial within a reasonable time and for non-execution of court decisions should be examined and concluded by the Compensation Commission. Lastly, the competence ratione temporis of the Compensation Commission was extended by Law no. 7445 on the Amendment of the Enforcement and Bankruptcy Law and Certain Laws of 28 March 2023, published in the Official Gazette on 5 April 2023. Accordingly, Provisional Article   2 of Law no.   6384 in its amended version provides that an applicant who lodged an individual application with the Constitutional Court before 9   March 2023 may bring a compensation claim before the Compensation Commission within three months of the official notification of the Constitutional Court’s inadmissibility decision concerning the complaints relating to the length of the legal proceedings or the partial/non-execution or belated execution of court decisions. 12 .     In its judgment in the case of Ferat Yüksel (application no.   2014/13828, 12 September 2018), adopted unanimously, the Constitutional Court examined whether the remedy envisaged by Provisional Article 2 of Law no. 6384 was accessible and had the capacity to offer a reasonable prospect of success and to provide sufficient redress. With regard to accessibility, the Constitutional Court emphasised that the remedy in question did not impose any financial burden on potential applicants and offered them the opportunity to make an application directly to the Compensation Commission within a reasonable time. As to whether this remedy could offer a reasonable prospect of success, the Constitutional Court observed that the structure and the rules of procedure of the Compensation Commission were determined by Law no.   6384 and that its decisions were subject to judicial review. It considered that the guarantees inherent in the right to a fair trial were ensured during the proceedings before the Compensation Commission. The Constitutional Court also noted that the awarded compensatory amount had to be paid by the Ministry of Justice within three months of the final decision. Therefore, the Constitutional Court considered that this remedy also had the potential to provide sufficient redress. 13 .     Consequently, the Constitutional Court concluded that the applicant had to bring an application before the Compensation Commission, which was prima facie accessible and capable of offering a reasonable prospect of success and sufficient redress for the alleged violation. The Constitutional Court also noted that the examination of the individual application before the exhaustion of the remedy before the Compensation Commission would not be compatible with the subsidiary nature of the individual application. 14.     In a recent judgment in the case of Veysi Ado (application no.   2022/100837, 27 April 2023), adopted unanimously, the Constitutional Court, after reiterating its findings in the judgment of Ferat Yüksel , made the following assessment: “50. As a result, having regard to the amended Provisional Article 2 of Law No.   6384 concerning applications pending on 9/3/2023 (including this date) raising allegations that the proceedings have not been concluded within a reasonable time (...), it is concluded that the examination of the individual application introduced without exhaustion of the remedy before the Compensation Commission, which is prima facie accessible and capable of offering a reasonable prospect of success and sufficient redress for the alleged violation, would be incompatible with the subsidiary nature of the individual application.” THE COURT’S ASSESSMENT 15 .     The applicants complained that the length of the civil proceedings had been incompatible with the “reasonable time” requirement laid down in Article   6 §   1 of the Convention. They argued that the proceedings had been prolonged once again owing to the Constitutional Court’s decision to dismiss their application on the grounds that they had to introduce a compensation claim before the Compensation Commission. They also raised various complaints under Article 6 of the Convention concerning the fairness of the proceedings. 16.     As regards the applicants’ complaint about the length of the civil proceedings, the Court reiterates that, according to its established case-law, the purpose of the rule on the exhaustion of domestic remedies laid down in Article   35 §   1 of the Convention is to afford the Contracting States the opportunity of preventing or putting right the violations alleged before they are submitted to the Court (see Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 70, 25 March 2014). 17.     However, the only remedies that the Convention requires to be exhausted are those that relate to the breaches alleged and at the same time are available and sufficient. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness (see Scordino v.   Italy (no. 1) [GC], no. 36813/97, § 142, ECHR 2006-V, with further references). 18.     The Court further reiterates that in the light of its well-established case-law a compensatory remedy is an appropriate means of redressing a violation of the right to a hearing within a reasonable time that has already occurred (see Sürmeli v.   Germany [GC], no. 75529/01, §§ 99-100, ECHR 2006-VII, with further references). The Court recalls that a new domestic remedy has been established in Türkiye under Law no. 6384 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 v. Turkey (cited above), the Court declared an application inadmissible on the ground that the applicants had failed to exhaust domestic remedies, that is to say the remedy mechanism set forth in Law no. 6384. In so doing, the Court considered in particular that this remedy was a priori accessible and capable of offering a reasonable prospect of redress for complaints concerning the length of proceedings. 19.     With regard to the circumstances of the present case, the Court observes that on 25 July 2018 a new provision (Provisional Article 2) was added to Law no. 6384, extending the competence of the Compensation Commission for applications that were pending before the Constitutional Court on 31 July 2018. The competence of the Compensation Commission was limited to the complaints relating to the excessive length of the judicial proceedings and the partial/non-execution or belated execution of court decisions. The Court also observes that Law no. 7445 has extended anew the competence ratione temporis of the Compensation Commission, which is empowered to examine the aforementioned complaints in connection with applications pending before the Constitutional Court on 9 March 2023. The Court notes in this respect that the applicants’ individual application was pending before the Constitutional Court on that date as they had lodged their individual application on 23 March 2021 (see paragraph   6 above). 20.     The Court notes that the Constitutional Court declared the applicants’ application inadmissible taking into account the latest amendments in Law no.   6384 and on the basis of its considerations in its leading judgment in the case of Ferat Yüksel . The Court observes that in the judgment in question, the Constitutional Court, after a thorough examination, concluded that the remedy envisaged by the Provisional Article 2 of Law no.   6384 was prima facie accessible and capable of offering a reasonable prospect of success and sufficient redress for the allegedly excessive length of judicial proceedings (see paragraphs 12-13 above). 21.     In view of its findings in the case of Turgut and Others v. Turkey (cited above) and the Constitutional Court’s considerations in the cases of Ferat Yüksel and Veysi Ado (both cited above), the Court agrees with the Constitutional Court that the applicants were required to lodge a claim with the Compensation Commission under the relevant sections of Law no.   6384. Furthermore, there do not appear to be any exceptional circumstances capable of exempting the applicants from the obligation to exhaust the available domestic remedies. 22.     In the light of the foregoing and taking into account its subsidiary role, the Court concludes that this part of the application, concerning the length of the proceedings, must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies. However, the question regarding the effectiveness of the remedy before the Compensation Commission may be subject to review in the future, depending on its capacity to issue decisions in line with the requirements of the Convention (see Turgut and Others , cited above, § 57, and the case-law cited therein). 23.     As concerns the applicant’s remaining complaints under Article   6 (see   paragraph 15 above), the Court considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, these complaints either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto. It follows that this part of the application must be rejected in accordance with Article 35 § 4 of the Convention.   For these reasons, the Court, unanimously, Declares the application inadmissible. Done in English and notified in writing on 14 December 2023.     Dorothee von Arnim   Jovan Ilievski   Deputy Registrar   President     Appendix List of applicants: Application no. 33876/23 No. Applicant’s Name 1. Mehmet Mihdi GÖKÇE 2. Helin Hiranur GÖKÇE 3. Betül Gülnur GÖKÇE 4. Rojda Nur GÖKÇE