Lexploria

SECOND SECTION

DECISION

Application no. 24461/09 Hacer ARI KAN and others against Turkey

The European Court of Human Rights (Second Section), sitting on 2 July 2019 as a Committee composed of:

Julia Laffranque, President, Ivana Jelić , Arnfinn Bårdsen , judges,

and Hasan Bakırcı, Deputy Section Registrar ,

Having regard to the above application lodged on 6 April 2009,

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. A list of the applicants is set out in the appendix.

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

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

4. On 19 December 2000 the security forces carried out an operation at the Bayrampaşa Prison, as part of the so-called “Return to Life” ( Hayata D önüş ) operations , which resulted in violent confrontations between the security forces and the prisoners. At the time of the events, all of the applicants were prisoners at the Bayrampaşa Prison.

5. Following the operation, the applicants were transferred to the Edirne and Bakırköy Prisons. In line with a written order from the Eyüp Public Prosecutor, on various dates in January and February 2001 they gave their statements before the Edirne and Bakırköy Public Prosecutors.

6. On 27 February 2001 the Eyüp Public Prosecutor filed an indictment with the Eyüp Criminal Court of General Jurisdiction, accusing one hundred sixty-seven prisoners including all of the applicants, of collective revolt against the prison administration under Article 304(1) of the former Criminal Code (Law no. 765).

7. On 23 June 2008 the Eyüp Criminal Court of General Jurisdiction discontinued the proceedings against the applicants, finding that the statutory time-limit under Articles 102(4) and 104(2) of the former Criminal Code had expired on 16 June 2008.

8. The applicants appealed, arguing that they should have been acquitted of the charges against them.

9. On 13 February 2012 the Court of Cassation upheld the judgment of the Criminal Court.

COMPLAINTS

10. Without relying on any provision of the Convention, the applicants stated that during the operation at the BayrampaÅŸa Prison they had been wounded. They also noted that they had subsequently been subjected to ill ‑ treatment and that the investigation against the security forces had not been effective.

11. The applicants complained under Article 6 and 13 of the Convention that the criminal proceedings against them had been unfair.

12. They submitted under Article 14 of the Convention in conjunction with Article 6 that they had suffered discrimination on the ground of their political opinions.

THE LAW

13. The applicants described the operation carried out at the BayrampaÅŸa Prison, stating that the security forces had opened fire on them, that they had been subjected to ill-treatment and that the investigation against the members of the security forces had either lasted too long or been discontinued. However, they went on to specify that the present application merely concerned the criminal proceedings initiated against them.

14. The Court notes that the applicants had submitted their complaints under Articles 2 and 3 in another application, which was examined by the Court in its judgment of Erol Arıkan and Others v. Turkey (no. 19262/09 , 20 November 2012) . In its Erol Arıkan judgment, the Court stated in response to the Government ’ s preliminary objections that the two cases were not the same, as the complaints raised in the present case pertained to the criminal proceedings against the applicants , whereas in that case they complained about the operation carried out in the Bayrampaşa Prison and the ineffectiveness of the investigation against those responsible (ibid., §§ 59-60). In view of the lack of any complaints under Articles 2 and 3 in the present case, the Court considers that there is no need to make a ruling under this head.

1. Length of the criminal proceedings

15. The applicants complained that the length of the proceedings against them had been incompatible with the “reasonable time” requirement laid down in Article 6 § 1 of the Convention.

16. The Court reiterates that the effect of the length of the proceedings might not be eliminated by the discontinuation of the proceedings (see Osmanov and Huseinov v. Bulgaria , ( dec. ), nos. 54178/00 and 59901/00, 4 September 2003).

17. Nevertheless, the Court observes that a new domestic remedy has been established in Turkey 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 (( 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.

18. In the present case the applicants did not make any application to the Compensation Commission. Accordingly, the Court concludes that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

2. Other complaints

19. The applicants argued under Articles 6 and 13 of the Convention that the criminal proceedings against them had been unfair. In that connection they complained, in particular, that the indictment against them had not been served on them, that the domestic court had lacked independence and impartiality, and that they had not been able to examine the witnesses against them in person. They also claimed under Article 6 § 2 that their presumption of innocence had been breached. Lastly, relying on Article 14 in conjunction with Article 6, the applicants complained that they had been subjected to discrimination on account of their political opinions.

20. The Court reiterates that a person may not claim to be a victim of a violation of his right to a fair trial under Article 6 of the Convention which, according to him, took place in the course of proceedings in which he was acquitted or which were discontinued (see Oleksy v. Poland ( dec. ), no. 1379/06, 16 June 2009, and the cases cited therein).

21. The Court observes that in the present case the criminal proceedings against the applicants were terminated on the ground that the statutory time-limit under Articles 102(4) and 104(2) of the former Criminal Code had expired. As a result, the applicants were not sanctioned or convicted for any criminal offence. Accordingly, they can no longer claim to be the victims of the alleged violations of the Convention, as required by Article 34 (see Oleksy , cited above, and Flor Lemus v. Portugal ( dec. ), no. 15729/15, 25 September 2018).

22. It follows that the applicants ’ complaints under this head must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 5 September 2019 .

Hasan Bakırcı Julia Laffranque Deputy r egistrar President

APPENDIX

Contact ID

App. No.

Last Name

First Name

Date Of Birth

367633

24461/09

Arıkan

Hacer

01/01/1966

171620

24461/09

Arıkan

Erol

01/01/1962

699586

24461/09

Aydınbaşlık

Sadrettin

01/01/1963

699591

24461/09

Bal

Salih

01/01/1967

699585

24461/09

Boztepe

Mehmet

01/01/1968

285076

24461/09

Canpolat

Mehmet Hakan

25/01/1964

478100

24461/09

Çiftçi

Mehmet

01/10/1952

699584

24461/09

Göktaş

Mehmet

01/01/1966

699592

24461/09

Gönültaş

Sefa

01/01/1967

699597

24461/09

Hun

Hacı Aziz

01/01/1965

699594

24461/09

Ä°lhan

Özlem

01/01/1977

399683

24461/09

Kale

Hikmet

08/12/1970

269583

24461/09

Kaplan

Erol

01/01/1967

193294

24461/09

Karagöz

Esral

30/01/1961

257365

24461/09

Kartal

Volkan

01/01/1977

699588

24461/09

Kazak

Türker

01/01/1971

700933

24461/09

Kodak

Rıdvan

01/01/1959

699599

24461/09

Otluçimen

Dincer

01/01/1976

724853

24461/09

Åžahin

Cem

01/01/1976

447250

24461/09

San Baran

Gülderen

01/01/1973

237238

24461/09

Tamer

Fazıl Ahmet

11/08/1966

699595

24461/09

Tarakçı

Turhan

01/01/1969

257367

24461/09

Tufan

Kemal

01/01/1967

724850

24461/09

YiÄŸit

Yılmaz

01/01/1976

724851

24461/09

Yigit

Bülent

01/01/1977

699589

24461/09

Zeyrek

Ä°lhan

01/01/1977

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ARIKAN AND OTHERS v. TURKEY

ARIKAN AND OTHERS v. TURKEY

LEXI