CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 6 décembre 2022

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display:inline-block } .s5A65B3DC { width:46.56pt; display:inline-block } .s44B8752F { width:177.11pt; display:inline-block }   SECOND SECTION CASE OF KERİMOĞLU v. TÜRKİYE (Application no. 58829/10)     JUDGMENT Art 34 • Victim • Quashing of applicant’s conviction and acquittal occasioned by an extraordinary legal remedy after imprisonment for more than eight years • Lack of acknowledgment of any alleged breach of Art 6 and of sufficient redress • Matter not “resolved” under Art   37 §   1 (b) Art 6 § 1 (criminal) • Fair hearing • Domestic courts’ failure to deliver a reasoned judgment stating grounds for applicant’s conviction   STRASBOURG 6 December 2022   FINAL   06/03/2023   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of Kerimoğlu v. Türkiye, The European Court of Human Rights (Second Section), sitting as a Chamber composed of:   Arnfinn Bårdsen , President ,   Egidijus Kūris,   Pauliine Koskelo,   Saadet Yüksel,   Lorraine Schembri Orland,   Frédéric Krenc,   Davor Derenčinović , judges , and Hasan Bakırcı, Section Registrar, Having regard to: the application (no.   58829/10) against the Republic of Türkiye lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr   Alican Kerimoğlu (“the applicant”), on 16 August 2010; the decision to give notice to the Turkish Government (“the Government”) of complaints concerning the alleged unfairness of different aspects of criminal proceedings against the applicant and to declare inadmissible the remainder of the application; the parties’ observations; Having deliberated in private on 15 November 2022, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1 .     The application concerns the alleged unfairness of criminal proceedings that resulted in the applicant’s conviction and his having to serve approximately eight years and seven months in prison owing to the domestic courts’ failure to (i)     state the grounds on which they had found him guilty, (ii)     examine the targeted person (Y.A.), a gendarmerie officer (M.A.), and a certain witness (İ.Ö.) in person, (iii)     play a video-recorded statement of the targeted person during the trial, and (iv)     properly assess his requests for the adducing and examination of further evidence. THE FACTS 2.     The applicant was born in 1961 and lives in Istanbul. The applicant was represented by Mr Ş. Karakış, a lawyer practising in Istanbul. 3.     The Government were represented by their Agent, Mr   Hacı   Ali Açıkgül, Head of the Department of Human Rights of the Ministry of Justice of the Republic of Türkiye. 4.     The facts of the case may be summarised as follows. 5.     On 6 August 2007 a certain H.B. shot Y.A. (hereafter “the targeted person”) with a gun in Sapanca, a district in Sakarya province. The targeted person was subsequently taken to hospital, where he gave a video-recorded statement to a gendarmerie officer, M.A. When the officer informed him that he and his colleagues had heard rumours that his shooting had been occasioned by a dispute related to purchases of land that had taken place a couple of years earlier, the targeted person affirmed that that was indeed the case. He further stated that he had transferred the title deeds to the plots of land in question (which had belonged to him) to a certain company and that he had received payments for those transfers. Explaining that the dispute had been between a certain real estate agent (İ.Ö.) and a company (S.) between whom the applicant had acted as a middleman in respect of the purchases in question, the targeted person stated that the applicant had visited him together with a friend, A.T., a couple of months earlier and had asked for his help in settling a claim for compensation that İ.Ö. had lodged against the S. company in relation to that dispute. When asked whether the applicant had visited or telephoned him again, the targeted person stated that he had not, adding that A.T. on the other hand, had telephoned him and had threatened him into resolving the matter. Lastly, Y.A. attested that H.B. had asked him: “They asked you to deal with this court [case]; why didn’t you?”; H.B. had then drawn his gun and shot the targeted person. 6.     On 7 August 2007 the applicant was arrested on suspicion of involvement in the shooting of the targeted person. On 8 August 2007 the applicant appeared before the Sapanca Magistrate’s Court and gave evidence, stating that he had provided assistance to the S. company, in his capacity as a businessman, in finding and purchasing plots of land on its behalf. Within the context of those activities, he had met İ.Ö. and authorised him to deal with the purchases of the plots of land; İ.Ö. had then done so. However, as the S. company had been planning to use the plots of land as collateral in order to obtain bank loans, the respective declared value of the plots of land (as recorded by the Land Registry) was higher than their actual market value. When a dispute had broken out between the two parties several years after the purchases, İ.Ö. lodged a claim for damages against the S. company, arguing that it had not paid the price of the plots of land as declared at the Land Registry. The applicant stated that he had later come to realise that the targeted person was the de facto business partner of İ.Ö., but claimed that he had neither seen nor visited the targeted person since 2001. Acknowledging that he had known A.T. for twenty years, the applicant denied having instructed him to threaten the targeted person, adding that the dispute had been resolved a month and a half prior to the shooting. 7.     The Sapanca Magistrate’s Court then played the video-recorded statement of the targeted person in which he had stated that the applicant and A.T. had visited him a couple of months before August 2007 and asked the applicant why he had said that he had not seen the targeted person since 2001. The applicant insisted to the court that he and A.T. had not visited the targeted person’s office. At the end of the hearing, the applicant was placed in pre-trial detention. 8.     On 2 November 2007 the Sapanca Magistrate’s Court ordered the applicant’s release. 9.     On 9 January 2008 the targeted person made a statement to the public prosecutor and complained that he had been shot upon the instructions of the applicant, owing to the dispute relating to the purchases of the plots of land and the legal action connected thereto. 10.     On 8 February 2008 the Sakarya public prosecutor filed a bill of indictment with the Sakarya Assize Court in respect of the applicant, A.T. and H.B., accusing them of the attempted murder of the targeted person. The public prosecutor asserted that the applicant and A.T. had incited H.B. to shoot the targeted person; the public prosecutor cited, inter alia , the numerous telephone calls made between the applicant and A.T., as evidenced by the relevant telephone records. 11.     At the first hearing, held on 11 March 2008, certain witnesses gave evidence in person (S.C., A.D., M.Ö., T.K., B.Ç., S.K., and S.A.); two of them asserted that H.B. had asked the targeted person (before shooting him) why he hadn’t withdrawn the case – this assertion was not contained in either of the statements that they had made to the gendarmerie. 12.     At the second hearing, held on 12 April 2008, the applicant gave evidence in person, stating that he had not had any motive to incite other people to kill the targeted person, with whom he had had no legal or financial problems. The applicant explained that prior to the shooting incident he had gone to the town of Sinop for a business trip; on his way to Sinop he had stopped at a service station owned by the targeted person and had talked to the targeted person’s brother, O.A. O.A. had told him that his brother could be of help in resolving the problem with the targeted person, because he was friends with İ.Ö. At a meeting that had taken place the following day, the targeted person had told the applicant that he could not do anything to resolve the matter, because İ.Ö. was of bad character. Subsequently, the applicant and A.T. had met with İ.Ö. and also contacted other people who might be able to act as mediators in an effort to resolve the matter, but those attempts had been fruitless. However, the applicant stated that he had stopped concerning himself with this matter when the S. company had finally told him that it was something for the courts to solve. At the end of the hearing, the trial court ordered that the applicant be placed in pre-trial detention. 13.     During the criminal proceedings, the targeted person and İ.Ö. ‑ ‑ pursuant to the letters of request issued by the trial court – gave evidence to the courts under whose jurisdiction lay their respective places of residence, contrary to the applicant’s requests that they be examined in person by the trial court. Similarly, the trial court dismissed a request lodged by the applicant that further investigative steps be taken, including (i)     hearing evidence from M.A., the gendarmerie officer who had taken the targeted person’s statement at the hospital in the immediate aftermath of the shooting, and (ii)     playing at the trial the video-recorded statement given by the targeted person, holding that the facts of the case had been sufficiently established. 14 .     On 2 December 2008 the Sakarya First Assize Court found the applicant guilty of incitement to attempted murder ( kasten adam öldürmeye teşebbüs ) of the targeted person and sentenced him to eighteen years’ imprisonment. The court held that the applicant had acted as a middleman between the S. company and İ.Ö. with a view to assisting the S. company to purchase certain plots of land that belonged to various respective owners (one of whom was the targeted person). However, several years after the transactions had taken place, İ.Ö. had alleged that he had not received part of the fees owed to him and a dispute had therefore arisen between İ.Ö. and the S. company. As a result, İ.Ö. had lodged a claim for compensation against the S. company, which had been pending before the civil courts. The court went on to hold that when the applicant had understood that the S. company would lose the case, he and his co-accused, A.T., had tried to convince İ.Ö. to withdraw the claim for compensation. Their efforts had proved futile and, in the meantime, the applicant and A.T. had understood that the targeted person and İ.Ö. had been acting in concert. When their meeting with the targeted person had not produced a favourable outcome, the applicant had allegedly instructed A.T. to threaten the targeted person in order to persuade him to withdraw the case; after those threats had proved ineffective, they had incited H.B. to kill the targeted person. The court went on to hold that on 6   August 2007, H.B. had shot the targeted person with a gun and had uttered the following question: “Why didn’t you withdraw your case?” However, the reasoned judgment did not include any substantiation or detail in respect of its crucial finding as to how the applicant had incited H.B. to kill the targeted person. 15.     On 15 February 2010, following an appeal by the applicant, the Court of Cassation upheld the first-instance court’s judgment and the applicant’s conviction became final, meaning that the execution of his sentence commenced on that date. 16.     On 18 August 2010 the applicant lodged an application with the Court and submitted various complaints in relation to the criminal proceedings under which he had been found guilty (see paragraph 11). 17.     On 23 September 2013 the Sakarya First Assize Court dismissed an application lodged by the applicant’s lawyer on 13 September 2013 for the reopening of the criminal proceedings, holding that it did not fulfil the eligibility criteria laid down in Article 311 of the Code of Criminal Procedure (Law no.   5271, which entered into force on 1 June 2005 (hereafter “the CCP”). On 8 November 2013 the Sakarya Second Assize Court dismissed an objection lodged by the applicant against that decision. 18.     On 7 February 2014 the General Directorate for Criminal Matters of the Ministry of Justice (hereafter “the Directorate for Criminal Matters”) availed itself of an extraordinary remedy – namely, an “appeal in the interests of the law” (as provided for in Article 309 of the CCP) against the judgment of the Sakarya Second Assize Court dated 8 November 2013. It requested the Chief Public Prosecutor at the Court of Cassation (“the Chief Public Prosecutor”) to bring the case before the Court of Cassation with a view to having the impugned judgment quashed. On 9 June 2014 the First Section of the Court of Cassation refused that request. 19.     On 22 January 2015 the Directorate for Criminal Matters availed itself of another extraordinary remedy, as provided for in Article 308 of the CCP ‑ ‑ namely, it requested   the Chief Public Prosecutor to lodge an objection against the above-mentioned judgment of the First Section of the Court of Cassation seeking that it be reconsidered and quashed by the same Section. On 30   January 2015 the Chief Public Prosecutor forwarded the Directorate’s request to the First Section of the Court of Cassation. 20.     On 25 February 2015 the First Section of the Court of Cassation returned the case file to the office of the Chief Public Prosecutor, asking the latter to first determine whether it would accept the request in question. On 12   March 2015 the Chief Public Prosecutor decided not to use his discretion under Article 308 of the Code of Criminal Procedure to forward the Ministry’s request. 21.     On 7 April 2015 the Directorate for Criminal Matters reiterated its request that the Chief Public Prosecutor lodge an application for the above ‑ mentioned judgment of 9 June 2014 to be quashed. 22.     On 14 September 2015 the First Section of the Court of Cassation refused that request and decided to send the case file to the plenary criminal divisions of the Court of Cassation (“the plenary”), the highest judicial unit of that court in criminal matters. 23.     On 19 February 2016 the plenary held that there was no valid objection that ought to be examined, and returned the case file to the Chief Public Prosecutor. Meanwhile, when the proceedings before the plenary were pending, the Chief Public Prosecutor lodged another objection, in accordance with Article 308 of the CCP, seeking that the First Section’s judgment dated 15   February 2010 be quashed, arguing that the applicant should have been acquitted in the absence of sufficient or conclusive evidence justifying his conviction. On 18 January 2016 the First Section dismissed that objection and sent the case file to the plenary. 24 .     On 15 November 2016 the plenary quashed the applicant’s conviction, remitted the case to the trial court, and ordered his immediate release, holding that the applicant should have been acquitted on the grounds that there had been no conclusive evidence showing beyond reasonable doubt that he had incited A.T. or H.B. to shoot the targeted person. On the same day the applicant was released. 25 .     Subsequently, fresh criminal proceedings against the applicant were opened before the Sakarya First Assize Court, which acquitted him on 29   September 2017, essentially on the same grounds as those indicated by the plenary. In its reasoned judgment, the trial court indicated that the applicant had the right to lodge a claim for compensation under Article   141 of the CCP in respect of his arrest and pre-trial detention (but not the execution of his sentence), which had been based on the offence of incitement to attempted murder. In the absence of any appeal against it, this judgment became final. 26.     According to the information provided by the parties, the applicant did not lodge a claim for compensation under Article 141 of the CCP. 27.     On 11 May 2020 the Government were given notice of the present application. RELEVANT LEGAL FRAMEWORK AND PRACTICE 28.     The relevant parts of Article 141   §   1 of the CCP entitled “Compensation [for damage sustained] as a result of preventive measures” provide: “Compensation for damage ... may be claimed from the State by anyone ... (a)     who has been arrested or taken into or kept in detention under conditions or in circumstances not complying with the law; ... (e)     who, after being arrested or detained in accordance with the law, was not subsequently committed for trial or was acquitted; ...” 29.     Article   142 § 1 of the CCP reads as follows: “A claim for compensation may be lodged within three months of the person concerned being informed that the decision or judgment has become final, and in any event within one year of the decision or judgment becoming final.” 30.     The third chapter of Book Six of the CCP, entitled “Extraordinary legal remedies”, consists of three Sections, each of which lays down a different extraordinary legal remedy that may be resorted to in order to contest a final judicial decision. 31.     Article 308 of the CCP, entitled “The Chief Public Prosecutor’s authority to lodge an objection”, provides as follows: “(1)     The Chief Public Prosecutor at the Court of Cassation may, of his or her own motion or upon request, lodge an objection against a decision delivered by one of the criminal divisions of the Court of Cassation within thirty days of being served with it. In respect of an objection [lodged] for the benefit of an accused, no time-limit shall be applied. (2)     Upon [the lodging of an] objection, the case file [in question] shall be sent to the division in respect of whose decision the objection was lodged. (3)     The division [in question] shall examine the objection within the shortest possible time and shall rectify its decision if it upholds [the objection]; if [it does] not, it shall transfer the file to the plenary criminal divisions of the Court of Cassation.” 32.     Article 309 of the CCP, entitled “Appeal in the interests of the law”, provides as follows: “(1)     In the event that it is informed that a decision or a judgment given by a judge or a court that has become final without having been the subject of an appeal or cassation examination was unlawful, the Ministry of Justice shall [lodge a request], in writing, with the Chief Public Prosecutor at the Court of Cassation ... that the impugned decision or judgment be quashed by the Court of Cassation, indicating the legal grounds [for that request]. (2)     The Chief Public Prosecutor at the Court of Cassation shall lodge a document [setting out] the [above-mentioned] grounds ... (together with [a] request that the decision or judgment be quashed) with the relevant criminal division of the Court of Cassation. (3)     If the relevant division of the Court of Cassation finds that the grounds set out are appropriate, it shall quash the decision or the judgment in the interests of the law. (4)     [If] the reasons for quashing [the decision or judgment in question] a)     concern a decision which is defined in Article 223 [of the CCP] and which does not resolve the substance of the case, the judge or the court that gave that decision shall render a fresh decision after [conducting] the necessary examination and inquiry. b)     concern an aspect of a conviction judgment which does not resolve the substance of the case or [which concerns] a procedural act resulting in the restriction or extinguishing of the rights of defence, the judge or the court that handed down the [earlier] decision shall render a [fresh] judgment, ... which shall be carried out anew ( yeniden yapılacak yargılama ). This judgment shall not [impose] a heavier [sentence] than the sentence set out in the earlier judgment. c)     concern an aspect of a judgment (other than a conviction) that resolves the substance of a case, it shall not lead to an outcome [that is] detrimental [to the accused] and shall not require a retrial ( yeniden yargılama ). d)     call for the lifting of the convicted person’s sentence, a decision to lift [it] shall be delivered; [if the reasons] call for a lighter sentence to be imposed, this lighter sentence shall be imposed directly by the criminal division of the Court of Cassation. (5)     A decision to quash [which has been] rendered in accordance with this provision cannot be insisted upon [by the lower-instance courts].” 33.     Article 311 § 1 of the CCP, entitled “Grounds for reopening criminal proceedings ( yargılamanın yenilenmesi ) for the benefit of convicted persons”, provides as follows: “Criminal proceedings terminated by a final judgment shall be re-examined by way of reopening the proceedings for the benefit of convicted persons if: a)     it is understood that a document which was used during the trial and which affected the judgment was false; b)     it is understood that a witness or an expert who testified under oath gave false evidence or voted against the convicted person in a manner that affected the judgment; c)     one of the judges who [was on the bench that] convicted the person was at fault in relation to the performance of his or her duties to an extent that necessitated his or her criminal prosecution or conviction, save for in cases where the fault was attributable to the convicted person; d)     a civil court judgment that was relied on as the basis for the criminal conviction [in question] has been rendered null and void by another final judgment; e)     new facts or new evidence are presented which either alone or in relation to evidence [previously presented] may lead to the acquittal of the person who was convicted, or to his conviction on the basis of a more lenient criminal-law provision; f)     the European Court of Human Rights finds a violation of a right protected by the Convention and its Protocols and establishes that the criminal conviction is based on that violation. In such a case, a request for the proceedings to be reopened may be made within one year of the date of the judgment of the European Court of Human Rights becoming final. ...” 34.     Article 323 § 3 of the CCP, entitled “Judgment to be rendered following a rehearing”, which forms part of the third Section of the Third Chapter (entitled “Reopening of criminal proceedings”) of Book Six of the same Code, provides: “(1)     [Following] the rehearing ..., the court shall either uphold the previous judgment or quash it and render a fresh judgment. (2)     If the application for the reopening of the proceedings was lodged for the benefit of the accused, the fresh judgment ... shall not impose a heavier sentence than the sentence set out in the previous judgment. (3)     In the event that an acquittal or a decision not to impose a sentence ( ceza verilmesine yer olmadığı kararı ) is delivered following reopened criminal proceedings, then, in accordance with Articles 141-44 of this Code, the person in question shall be compensated for any pecuniary and non-pecuniary damage that he or she sustained owing to the partial or full execution of the earlier conviction judgment.” 35.     The Government cited two judgments delivered by the Twelfth Criminal Division of the Court of Cassation in support of their contention that a claim for compensation, as provided for by Article 323 § 3 of the CCP, constituted an effective remedy capable of providing redress in respect of the applicant’s grievances in the present case. In the first judgment, which was delivered on 9 April 2018, the Court of Cassation posited the view that Article   323 § 3 of the CCP provided that in cases where a person had been acquitted following the reopening of criminal proceedings, he or she was entitled to lodge a claim for compensation under Articles 141-44 of the CCP in respect of any damage that he or she might have sustained in connection with the partial or full execution of a sentence stemming from a conviction that had subsequently been overturned. In that case, the Court of Cassation upheld a claim for compensation lodged by a person who had been acquitted after the reopening of criminal proceedings against him and after serving the sentence imposed on him in the earlier set of criminal proceedings. The second judgment, dated 11 January 2016, concerned a claim for compensation lodged by a plaintiff who had had to serve part of his final sentence for a second time owing to an omission on the part of the domestic authorities. It did thus not concern a set of proceedings to which any extraordinary legal remedy applied. THE LAW PRELIMINARY REMARKS 36.     At the time that the Government were given notice of the application, the Court invited the parties to submit their observations regarding the question of (i)     whether the applicant could still claim to be a victim of a violation of his rights under Article 6 of the Convention and (ii)     whether the matter could be regarded as “resolved” within the meaning of Article   37 §   1   (b) of the Convention. The principal reason for that approach was the Court of Cassation’s decision of 15 November 2016 whereby –   after becoming aware of the matter – it quashed the applicant’s final conviction by way of an extraordinary remedy and ordered his immediate release, which led to his eventual acquittal by the trial court in 2017 with final effect. ALLEGED VIOLATION OF ARTICLE 6   §   1 OF THE CONVENTION 37.     The applicant complained that he had not had a fair trial owing to the domestic courts’ failure to deliver a reasoned judgment when convicting him. The relevant parts of Article 6 § 1 of the Convention read as follows: “In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” Admissibility The parties’ submissions 38.     As regards the first question, namely the applicant’s victim status, the Government invited the Court to declare the application inadmissible as being ratione personae incompatible with the provisions of the Convention, arguing that he could not be regarded as a victim within the meaning of Article 35 of the Convention in view of the following points. In the first place, the plenary had reviewed the applicant’s final conviction following the application of an extraordinary remedy provided for by Article 308 of the CCP, which had been set in motion by the Chief Public Prosecutor. More importantly, the plenary had not only ordered the applicant’s immediate release, but it had also quashed his final conviction and remitted the case to the trial court. Thirdly, both the plenary and the trial court had held that there had not been conclusive and sufficient evidence to prove beyond any doubt that the applicant had instigated the shooting; that which had resulted in his acquittal with final effect. The domestic courts’ decisions in the present case had also acknowledged and brought “the breaches of law” to an end. In view of the above, the Government took the view that the applicant’s conviction and the consequences stemming therefrom had been removed; therefore, he could no longer claim to be a victim of a breach of his right to a fair trial. 39.     Furthermore, the Government argued that Turkish law provided for a remedy in respect of persons who had been convicted with final effect and who had served their prison sentence either in full or in part, in the event that their convictions were later overturned owing to the use of an extraordinary remedy. Indeed, such persons, including the applicant, could lodge a claim for compensation under Article 323 § 3 of the CCP read in the light of Article   141 et seq. of the CCP in respect of pecuniary and non-pecuniary damage that they might have sustained in respect of time spent in prison as a result of a conviction that was subsequently overturned. In support of that contention, the Government submitted two judgments delivered by the Court of Cassation and pointed out that the trial court had in the acquittal decision explicitly cited the legal avenue provided by Article 323 § 3 of the CCP. At this juncture, had the applicant deemed that his release and subsequent acquittal had not afforded him sufficient relief, he could have lodged a claim for compensation for the damage caused to him. By not doing so, the applicant had not availed himself of the possibility to obtain redress in respect of his complaints. Accordingly, the applicant should not be regarded as a victim within the meaning of Article 34 of the Convention. 40.     As regards the second question, namely whether the matter could be regarded as “resolved” within the meaning of Article 37 § 1 (b) of the Convention, the Government submitted that the matter had been resolved, given that (i)     the circumstances forming the basis of the applicant’s complaints had ceased to exist, in view of the applicant’s acquittal, and (ii)     Turkish law had provided him with the possibility to seek redress in respect of the alleged negative consequences of his conviction. 41.     The Government further submitted, albeit only in their “Further observations and comments on the applicant’s claims for just satisfaction concerning the application” dated 13 September 2021, that the applicant had also failed to exhaust the available domestic remedies, owing to his failure to lodge a claim for compensation in accordance with Article 141 of the CCP. 42.     The applicant submitted that while the highest judicial body in respect of criminal matters in Türkiye (namely, the plenary) had held that he should have been acquitted, that judgment had been delivered only after he had already served a major part of his sentence (that is to say approximately eight years and seven months of imprisonment). Furthermore, even though the applicant had brought the violations of his rights under the Convention to the attention of the domestic courts and the Ministry of Justice, none of the domestic authorities had recognised – either explicitly, implicitly or in substance – the infringements of his right to a fair trial under Article 6 of the Convention, which had formed the basis of his application to the Court. Against this background, the applicant submitted that it was impossible to agree with the Government’s argument that his acquittal had served to remove the negative consequences of his conviction. 43.     As regards his reported failure to lodge a claim for compensation under Article 323 of the CCP, the applicant contended that the remedy in question concerned only the “reopening of criminal proceedings”, which was a specific extraordinary remedy provided for under the relevant Chapter of the CCP of that name (that is to say “Reopening of criminal proceedings”). To mark the difference (that is to say the difference between the “reopening of criminal proceedings” and “an objection lodged by the Chief Public Prosecutor”), the applicant pointed out that when he had attempted to avail himself of the specific remedy of requesting the reopening of the criminal proceedings, the trial court had dismissed his request. On that basis, and given that his acquittal had been occasioned by another extraordinary remedy (namely, an objection lodged by the Chief Public Prosecutor), the applicant argued that the remedy suggested by the Government did not apply to his individual situation. In his view, even the title of Article 141 of the CCP (“Compensation [for damage sustained] as a result of preventive measures”) supported this state of affairs. Even assuming that the remedy provided for by Article 323 was applicable to the present case, neither the case-law examples submitted by the Government nor the above-noted provisions required the finding of a violation in order that the domestic courts might award compensation award under Article 323. In any event, the two judgments of the Court of Cassation cited by the Government were not pertinent to the present case: the first of those cases had concerned, unlike the present case, the reopening of the proceedings in question, while the second case had dealt with the issue of pre-trial detention and had not related to a judgment delivered as a result of the remedy provided for by Article 308 of the CCP; by contrast, the instant case concerned the enforcement of a sentence imposed by a final judgment. Similarly, the remedy provided for by Article   323 of the CCP could not lead to the recognition of the violations of his rights, as payment of compensation was “quasi automatic” in the kinds of cases set out in that provision. In view of the above-mentioned considerations, the Government had failed to explain how the said remedy offered any reasonable prospect of success in respect of the applicant. The Court’s assessment (a)    Whether the applicant could still claim to be a victim of a violation of Article   6 of the Convention (i)       General principles 44.     The Court reiterates that a person may not claim to be a victim of a breach of his or her right to a fair trial under Article 6 which allegedly took place in the course of proceedings in which he or she was acquitted or which were discontinued (see Webster v. the United Kingdom (dec.), no.   32479/16, 24   March 2020). 45.     However, acquiring and losing victim status are two different concepts, which have been the subject of different lines of case-law (see Sakhnovskiy v. Russia [GC], no.   21272/03, §   66, 2 November 2010). An applicant may lose his or her victim status if two conditions are met: firstly, the authorities must have acknowledged, either expressly or in substance, a breach of the Convention, and secondly, they must have afforded redress for it (see, among many other authorities, Selahattin Demirtaş v. Turkey (no.   2) [GC], no. 14305/17, § 218, 22 December 2020). That exercise involves an examination of the nature of the right in issue, the reasons advanced by the national authorities in their decision and the persistence of adverse consequences for the applicant after the decision (see Freimanis and Līdums v.   Latvia , nos. 73443/01 and 74860/01, § 68, 9 February 2006). Only when the two above-mentioned conditions are satisfied does the subsidiary nature of the protective mechanism of the Convention preclude an examination of an application (see Arat v. Turkey , no. 10309/03, § 46, 10 November 2009). 46.     The Court has already held that a full acquittal or the discontinuation of the proceedings against an applicant may constitute appropriate redress in respect of the criminal-limb guarantees of Article 6 of the Convention (see Sakhnovskiy , cited above, § 70, with further references), provided that an applicant is no longer affected and has been relieved of any effects to his or her disadvantage (see Güneş v. Turkey (dec.), no. 53916/00, 13 May 2004, where the applicant – who never began serving his sentence – could thus no longer claim to be the victim of an alleged breach of his right to be tried by an independent and impartial tribunal under Article 6 of the Convention, given that her conviction had first been suspended and then lifted on the grounds that she had not committed any new offence within the suspension period; this was also the situation of the first applicant in Koç and Tambaş v.   Turkey (dec.), no. 46947/99, 24 February 2005; Tapkan and Others v.   Turkey , no. 66400/01, §§ 47-48, 20 September 2007, where the applicant –   who never began serving his sentence – was regarded as having lost his victim status when the decriminalisation of the offence in respect of which he had been convicted prompted the lifting of his final conviction and its removal from his criminal record; and Kerman v. Turkey , no.   35132/05, §§   97 ‑ 107, 22   November 2016). 47.     Thus, an applicant can maintain his victim status if he or she has already served all or part of his or her sentence (see Tapkan and Others v.   Turkey , no. 66400/01, § 49, 20 September 2007, and Halil Kaya v.   Turkey , no.   22922/03, § 16, 22 September 2009) and no compensation has been offered or is available in respect of the alleged violation (see Menesheva v.   Russia (dec.), no. 59261/00, § 3, 15 January 2004; Zementova v.   Russia , no.   942/02, § 63, 27 September 2007; Birdal v. Turkey , no. 53047/99, §   24, 2   October 2007; and Arat , cited above, §   47). (ii)     Application of the principles to the instant case 48.     The Court notes that on 2 December 2008 the Sakarya First Assize Court found the applicant guilty of incitement to attempted murder and sentenced him to eighteen years’ imprisonment, which became final on 15   February 2010 upon the Court of Cassation delivering a decision upholding it. As a result, the applicant served approximately eight years and seven months in prison, before his conviction was quashed on 15   November 2016 by the plenary, to which the matter was referred after the last attempt of the Ministry of Justice to use the extraordinary remedy provided for in Article   308 of the CCP had been successful. In doing so, the plenary took the view that the applicant should have been acquitted, holding that the evidence on which his conviction had been based was not sufficient and conclusive of his guilt. At the same time the plenary also ordered the applicant’s immediate release and suspended the execution of his sentence. The case against the applicant was subsequently remitted to the trial court, which on 29   September 2017 delivered a decision acquitting him on the basis, essentially, of the same reasons as those cited by the plenary; that decision became final in the absence of any appeal against it. 49.     In view of the above, the Court will firstly ascertain whether the domestic authorities acknowledged the breaches of the Convention alleged by the applicant; secondly, it will ascertain whether they afforded redress for those breaches. (α)      Whether the domestic courts acknowledged any alleged breach of Article   6 of the Convention 50 .     The Court observes that neither the plenary nor the Sakarya First Assize Court acknowledged any procedural breach, including those alleged breaches that formed the basis of the applicant’s complaints before the Court. In fact, the Court of Cassation did not quash the decision of the Sakarya Assize Court to convict the applicant owing to a procedural violation stricto sensu , but for the lack of sufficient and conclusive evidence against him. Accordingly, the Court cannot conclude that the plenary’s decision to quash the applicant’s conviction, and his subsequent acquittal, were tantamount to an acknowledgement that his initial conviction had been in breach of his right to a reasoned judgment under Article 6 § 1 of the Convention (compare Constantinescu v. Romania , no. 28871/95, § 42, ECHR 2000 ‑ VIII; Pisano v.   Italy (striking out) [GC], no. 36732/97, § 37, 24 October 2002; and Kaymaz v.   Turkey , no. 6247/03, § 18, 26   June 2007). (β)       Whether the applicant was afforded sufficient redress in respect of the purported breach of his rights under Article 6 of the Convention 51 .     The Court considers that the applicant’s release and full acquittal cannot, in and of themselves, be regarded as having afforded him sufficient redress in respect of the breach of his right to a fair trial, given that he served approximately eight years and seven months in prison as a result of his conviction (compare Leblon v. Belgium (striking out), no. 34046/96, 1   June 1999). That being the case, the notion of “redress” calls for some form of tangible compensation, given the circumstances of the present case (see Webster , cited above, § 30, and Chervonenko v. Russia , no. 54882/00, §   37, 29   January 2009). The Court must thus ascertain whether Turkish law provided the applicant with a remedy whereby he could seek compensation in respect of the detrimental effects that his above-mentioned trial brought to bear upon him. 52.     In that connection, the Government argued that anyone who had partially or fully served a sentence stemming from a final judicial decision had the right to lodge a claim for compensation, in accordance with Article   323 § 3 of the CCP (taken together with Articles 141 et seq. of the same Code), in the event that he or she had later been acquitted following the application of an extraordinary remedy. In support of that contention, the Government submitted two judgments handed down by the Twelfth Criminal Division of the Court of Cassation and asserted that the trial court’s decision to acquit the applicant had also made an explicit reference to the remedy provided for in Article 323 § 3 of the CCP. 53.     The Court notes that, contrary to the Government’s assertions, the trial court’s acquittal decision in the present case (dated 29 September 2017) contained no reference – let alone an explicit one – to the above-mentioned remedy. 54.     Furthermore, the relevant Chapter of the CCP, entitled “Extraordinary legal remedies”, provides for three such remedies under three different Sections, but subjects each of those remedies to different rules and arrangements. A claim for compensation under Article 323 § 3 of the CCP is provided for in the Code’s third Section, entitled “Reopening of criminal proceedings”, which contains the relevant provisions concerning the extraordinary remedy of that name. Conversely, the extraordinary legal remedy that brought about the quashing of the applicant’s conviction, his release and eventual acquittal is a different one – namely, an objection lodged by the Chief Public Prosecutor. It is regulated under Article 308 of the CCP, which is laid down in the first Section of the above-mentioned Chapter. In short, these two extraordinary legal remedies constitute two separate courses of action, and the wording of Article 323 § 3 of the CCP does not indicate that a claim for compensation under that provision – which is provided for in respect of, inter alia , acquittals following the “reopening of criminal proceedings” – also covers acquittals occasioned by an objection lodged by the Chief Public Prosecutor. The difference between those two remedies is further borne out by the dismissal of the applicant’s application for the reopening of the criminal proceedings, which had no bearing on the outcome of the objection lodged by