ECHR Article 35-1
Exhaustion of domestic remedies
Establishment in accordance with Court pilot judgment of domestic remedy affording compensation in length-of-proceedings cases and requiring exhaustion: inadmissible
Facts – Various sets of criminal proceedings have been brought against the applicants since 1999. They complained of the length of the proceedings and of the lack of a domestic legal remedy by which to lodge their complaint.
Law – Article 35-1: Following the pilot-judgment procedure applied in the case of Ummuhan Kaplan v. Turkey, Law no. 6384 on the settlement, by a compensation award, of ‘length-of-proceedings’ applications lodged with the Court before 23 September 2012 and not yet communicated to the Government was enacted on 9 January 2013. It was designed to render the ‘reasonable-time’ principle effective in domestic law, in accordance with Article 6-1 of the Convention and the Court’s related case-law. The Law covered all criminal-law, private-law and administrative-law cases that had exceeded a ‘reasonable time’. Accordingly, the Court had to determine whether the applicants were required to use the new remedy. Their application had been lodged before Law no. 6384 had come into force, so the applicants had not at the time had an effective remedy under Turkish law to complain about the length of the proceedings in question.
The main purposes of Law no. 6384, which provided for the creation of a compensation board to rule on any application lodged with it, were to allow the respondent State to redress breaches of the ‘reasonable-time’ requirement and reduce, or even fully absorb, the number of applications registered on the Court’s list of cases concerning this systemic or structural problem. As at 31 December 2012 over 3,800 applications lodged with the Court on the same issue had not yet been communicated to the respondent Government. Accordingly, having regard to the nature of Law no. 6384 and the context in which it had been enacted, there were grounds for departing from the general principle that the requirement of exhaustion of domestic remedies had to be assessed with reference to the time when the application was lodged. At this stage of the proceedings, the Court was not in a position to state that the remedy instituted was not effective and accessible. Furthermore, Law no. 6384 had instituted a remedy that was subject to the scrutiny of the Regional Administrative Court and then, if applicable, to that of the Constitutional Court and lastly to the Strasbourg Court. Consequently, the applicants were required – in accordance with Article 35-1 of the Convention – to apply to the Compensation Board set up by Law no. 6384 in so far as this was apparently an accessible remedy capable of offering them a reasonable chance of redress for their complaints. That conclusion did not in any way prejudice a possible reexamination of the issue of the effectiveness and reality of the remedy introduced by that Law in the light of practice and the decisions given by the Compensation Board and the domestic courts. In any event, the burden of proof regarding the effectiveness of the remedy would then be on the respondent State.
Conclusion: inadmissible (failure to exhaust domestic remedies).
The Court also held that the applicants’ complaint under Article 13 of the Convention was inadmissible as manifestly ill-founded, since the Compensation Board did offer the applicants a remedy to be used within the meaning of Article 13 of the Convention enabling them to complain of the length of proceedings for the purposes of Article 6-1.
(See Ummuhan Kaplan v. Turkey, no. 24240/07, 20 March 2012, Information Note no. 150)
4860/09 – Chamber Judgment (French Text), [2013] ECHR 511, 4860/09 – Legal Summary, [2013] ECHR 518
Bailii, Bailii
European Convention on Human Rights
Human Rights
Human Rights
Updated: 12 November 2021; Ref: scu.510731
