SECOND SECTION

DECISION

Application no. 59683/12 Mevlüt CAN and O thers against Turkey

The European Court of Human Rights (Second Section), sitting on 15 December 2020 as a Committee composed of:

Valeriu Griţco , President, Branko Lubarda , Pauliine Koskelo , judges, and Hasan Bakırcı , Deputy Section Registrar ,

Having regard to the above application lodged on 14 June 2012,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

1 . The applicants, Mr Mevlüt Can, Ms Hatice Can and Ms Ezgi Sevgi Can are Turkish nationals, who were born in 1957, 1957 and 1987, respectively. The applicants live in Ankara. They are represented before the Court by Mr E. Kanar , a lawyer practicing in Ankara.

2 . The Turkish Government (“the Government”) were represented by their Agent.

The circumstances of the case

3 . The facts of the case, as submitted by the parties, may be summarised as follows.

4 . On 2 June 2010, at 9.20 p.m. the first two applicants ’ son and the third applicant ’ s brother, Onur Yaser Can, was arrested on suspicion of carrying illegal drugs. Some cannabis was found on him and he was taken to the Narcotics Branch of the Istanbul Security Directorate.

5 . At 10 p.m. the Beyoğlu public prosecutor ordered the drug ’ s seizure and Onur Yaser Can ’ s release upon completion of the formalities related to his interrogation. Following that order, at 11.15 p.m., an arrest and search report was drawn up by some police officers. The report indicated that Onur Yaser Can had consented to the seizure of the 11 grams of cannabis found on him but had not been able to describe the person he had bought the drugs from. According to the police records, Onur did not want his family to be informed of his arrest and refused legal assistance.

6 . Before his release, Onur was taken to the hospital, where he underwent a medical examination at 11.45 p.m. The medical report drawn up there noted that there was no sign of physical violence on his body.

7 . Later on that night, on 3 June 2010 at 1 a.m., he was released.

8 . On 23 June 2010, Onur was invited to the Narcotics Branch with his lawyer in order to identify some drug dealers.

9 . On the same day, he committed suicide at 10.15 p.m. by jumping from the third floor of a building. An ambulance arrived some forty minutes later and took him to the hospital, where he died during an operation, at 2 a.m.

10 . The next day, an investigation into the cause of death was launched. During the course of that investigation, on 2 July 2010 the applicants filed a complaint, arguing that Onur ’ s suicide was the result of the ill-treatment he had been subjected to during his time in police custody on 2 June 2010. They claimed that he had been stripped naked, forced to squat and cough in that position and probably sexually harassed by police officers.

11 . On the same day four police officers involved in Onur ’ s arrest and the chief police officer at the Narcotics Branch gave their statements before the Fatih public prosecutor. The chief of police stated that during his time at the Branch, Onur Yaser Can had been strip-searched as that was the routine procedure in such cases.

12 . During the course of the investigation, Onur ’ s friends and his lawyer were heard as witnesses.

13 . On 5 January 2011 the ÅžiÅŸli public prosecutor issued a decision not to prosecute. He held that Onur Yaser Can had committed suicide as a result of his psychological situation and that there was no indication of his being incited to suicide by others.

14 . On 9 March 2011 the Beyoğlu Assize Court rejected the applicants ’ objection. This final decision was served on the applicants on 28 March 2011.

15 . Meanwhile, on 21 January 2011 an expert report, evaluating the video recordings of the Narcotics Branch on the night of Onur Yaser Can ’ s police custody, was submitted to the Fatih public prosecutor ’ s office. The report, which included images of the entry and exit doors, elevators and staircases of the building, concluded that there was no record of ill-treatment inflicted on the deceased.

16 . On 2 May 2011, relying on the medical report of 2 June 2011 and the expert report, the Fatih public prosecutor issued a decision not to prosecute the police officers for ill-treatment.

17 . The public prosecutor nevertheless issued a report ( fezleke ), requesting that two of the police officers complained of by the applicants be prosecuted for forging official documents that they made allegedly sign to Onur two days after his release from custody.

18 . On 26 December 2011 the Bakırköy Assize Court rejected the applicants ’ objection to the non-prosecution decision of 2 May 2011.

19 . In relation to the abovementioned report ( fezleke ), on 12 May 2011 the Istanbul public prosecutor issued an indictment against two police officers, accusing them of forging official documents. The public prosecutor noted in particular that the deceased ’ s statements appeared to have been drawn up following his release and that he had been made sign them two days after his police custody. On 15 May 2012 the police officers were sentenced to two years and six months ’ imprisonment by the 6 th Chamber of the Istanbul Assize Court for forging an official document. The case-file does not contain information on the outcome of that set of proceedings.

COMPLAINTS

20 . The applicants complained under Articles 2 and 3 of the Convention that Onur Yaser Can had been subjected to ill-treatment and psychological duress during his time at the Narcotics Branch of the Istanbul Security Directorate, which according to them had led to his suicide. In that connection, they maintained that Onur had been stripped naked and forced to squat and stand against the wall while in police custody. They also claimed that the insistent calls from the police officers with a view to obtaining further statements from Onur had caused damage to his psychological situation and had incited him to commit suicide.

21 . Relying upon Articles 6 and 13 of the Convention, the applicants maintained that the investigation conducted into the alleged ill-treatment had not been effective in that the domestic authorities had failed to take note of the conflicting statements of the involved police officers and had not examined the evidence, in particular the video recordings, diligently.

22 . The applicants submitted under Article 5 § 2 of the Convention that Onur had not been informed of the reasons of his arrest and had been denied legal assistance.

THE LAW

23 . The Government contested the allegations of the applicants.

24 . Regarding the complaints concerning the suicide of Onur Yaser Can, the Court reiterates that it has already considered that the six-month rule is a public policy rule and that, consequently, it has jurisdiction to apply it of its own motion even if the Government have not raised that objection ( Sabri Güneş v. Turkey [GC], no. 27396/06, § 29, 29 June 2012). In the present case, the final decision regarding the investigation into the circumstances surrounding the death of Onur Yaser Can had been served on the applicants on 28 March 2011 (paragraph 14 above), whereas the present application was introduced on 14 June 2012. Accordingly, the complaint raised under Article 2 was introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

25 . As regards the remaining complaints, the Court notes that the rights invoked by the applicants belong to the category of non-transferable rights, for which the relatives of a deceased person could not be considered as victims (for the principles on the matter, see Kaburov v. Bulgaria ( dec. ), no. 9035/06, §§ 51-53, 19 June 2012, and the cases cited therein).

26 . The Court does not exclude that it may recognise standing in the context of complaints under Article 3 to applicants who complain about treatment concerning exclusively their late relative. It nevertheless considers that such applicants must show either a strong moral interest, besides the mere pecuniary interest in the outcome of the domestic proceedings, or other compelling reasons, such as an important general interest which requires their case to be examined ( Kaburov , cited above, § 56, 19 June 2012).

27 . In the present case, the complaints under Articles 3, 5, 6 and 13 were brought solely on behalf of Onur Yaser Can, who had died on 24 June 2010. The Court does not see any specific circumstance which would allow admitting that the applicants can pursue those rights, particularly taking into account that Onur Yaser Can had not introduced any criminal complaint or civil claim before the national authorities prior to his death. Moreover, in their submissions the applicants failed to establish that they were personally affected by the alleged violations.

28 . Accordingly, this part of the application is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 21 January 2021 .

Hasan Bakırcı Valeriu Griţco Deputy Registrar President