SECOND SECTION

DECISION

Application no. 56234/11 Hasan IRMAK against Turkey

The European Court of Human Rights (Second Section), sitting on 3 July 2018 as a Committee composed of:

Paul Lemmens, President , Valeriu Griţco , Stéphanie Mourou-Vikström , judges ,

and Hasan Bakırcı, Deputy Section Registrar ,

Having regard to the above application lodged on 22 July 2011,

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

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Hasan Irmak is a Turkish national, who was born in 1950 and lives in Diyarbakır. He was represented before the Court by Mr S. Yurtdaş , a lawyer practising in Diyarbakır.

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 6 June 2000 the applicant was arrested on suspicion of participating in an illegal demonstration. Following his arrest, he was placed in police custody at the Anti-Terrorist Branch of the Diyarbakır Security Directorate.

5. On 16 June 2000 the applicant underwent a medical examination at the BaÄŸlar Health Clinic. The report issued following that examination, which was drawn up in respect of several people including the applicant, stated that there was no indication of physical violence on his body except for sensitivity complaint in his testicles.

6. On the same day, the applicant was released upon an order of the public prosecutor at the Diyarbakır State Security Court.

7. On 26 October 2000 the Diyarbakır State Security Court acquitted the applicant of the charges of aiding and abetting an illegal organisation.

1. Criminal proceedings against the police officers concerned

8. On 18 January 2001 the applicant, represented by a lawyer, filed a complaint with the Diyarbakır public prosecutor ’ s office, arguing in detail that he had been subjected to inhuman treatment during his police custody.

9. On 20 February 2001 the applicant gave his statement before the public prosecutor. On 21, 22 and 26 February 2001, the applicant was examined at the Dicle University Hospital. The reports indicated several injuries and traumas, in particular in his testicles.

10 . On 2 August 2001 the public prosecutor issued an indictment against officers M.Y. and K.Ó¦., accusing them of torture pursuant to Article 243 of the Criminal Code in force at the time (Law no. 765).

11 . On 16 April 2002 the Diyarbakır Assize Court stayed the proceedings as it found that criminal proceedings against officers on duty in the state of emergency region in force at that time could only be initiated upon the authorisation of the governor of that region.

12. On 3 May 2002 the Governorship of Diyarbakır refused authorisation for the instigation of criminal proceedings against the two police officers concerned.

13. On 25 June 2002 the applicant objected to the decision of the Governorship.

14 . On 31 March 2003 the Regional Administrative Court rejected the applicant ’ s objection.

2. Administrative proceedings for compensation

15. In 2001 the applicant, represented by a lawyer, brought proceedings against the Ministry of Interior, claiming pecuniary and non ‑ pecuniary compensation for his loss of hearing and sexual dysfunction, which he alleged had occurred as a result of the ill-treatment he had been subjected to in police custody.

16. On 22 December 2006 the Supreme Administrative Court quashed the judgment of the first-instance court dismissing the case.

17. Having received the file back, the Administrative Court requested an expert report from the Forensic Medicine Institute.

18. In response to that request, on 6 October 2010 the Forensic Medicine Institute requested the court to provide it with a copy of the initial medical report issued at the BaÄŸlar Health Clinic.

19 . On 17 January 2011 the applicant filed a complaint with the Diyarbakır public prosecutor ’ s office, requesting the opening of criminal proceedings against the administrative personnel concerned in that the initial medical report, which had been kept in the case file of the criminal proceedings against him, had gone missing together with the case file as a result of negligence on their part. In this complaint, the applicant made reference to the decision of 31 March 2003 which definitely put an end to the criminal proceedings on his allegations of ill-treatment (see paragraphs 11 -14 above).

20. On 22 March 2012, a decision not to prosecute was issued as the case-file was found.

21. In 2012, the Administrative Court dismissed the applicant ’ s case.

22. According to the information provided by the parties in 2014, the case was still pending before the Supreme Administrative Court.

COMPLAINTS

23. The applicant alleged under Article 3 of the Convention that he had been subjected to ill-treatment during his detention in police custody.

24. The applicant further maintained under Articles 3, 6 and 13 of the Convention that the domestic authorities had failed to conduct an effective investigation into his allegations of ill-treatment.

THE LAW

25. The applicant relied on Articles 3, 6 and 13 of the Convention and complained about the ill-treatment he had allegedly been subjected to and the authorities ’ failure to conduct an effective investigation.

26. The Government considered that the application should be declared inadmissible for incompliance with the six-month time-limit as the criminal investigation ended in 2003.

27. The Court has already held that, in cases concerning an investigation into ill-treatment, as in those concerning an investigation into the suspicious death of a relative, applicants are expected to take steps to keep track of the investigation ’ s progress, or lack thereof, and to lodge their applications with due expedition once they are, or should have become aware of the lack of any effective criminal investigation (see Mocanu and Others v. Romania [GC], nos. 10865/09 and 2 others, § 263, ECHR 2014 (extracts) and the cases cited therein).

28. T he Court has also held that an administrative procedure cannot be regarded as an effective remedy for the purposes of Articles 2 and 3 of the Convention as it is not capable of clarifying the circumstances of the criminal acts and identifying the perpetrators (see, inter alia , Gasyak and Others v. Turkey , no. 27872/03 , § 71, 13 October 2009).

29. The Court also reiterates that the Contracting States ’ obligations under Articles 2 and 3 of the Convention would be rendered illusory if an applicant ’ s victim status were to be remedied by merely awarding damages ( Özcan and Others v. Turkey , no. 18893/05 , § 54, 20 April 2010 and the cases cited therein).

30. The Court finds, therefore, that the administrative procedure initiated by the applicant does not affect the running of the six-month period (see, mutatis mutandis , Alkın v. Turkey , no. 75588/01 , § 33, 13 October 2009; Erkan v. Turkey ( dec. ), no. 41792/10 , §§ 64-65, 28 January 2014; and Jørgensen and Others v. Denmark ( dec. ), no. 30173/12 , §§ 62-63, 28 June 2016).

31. The relevant domestic remedy for the applicant ’ s complaint which would have had the potential to offer adequate redress for the allegations of ill-treatment was, therefore, the criminal trial. In the present case the Court observes that the criminal proceedings related to the alleged ill-treatment was initiated by the public prosecutor in 2001 before the Diyarbakır Assize Court. However, these proceedings were stayed to obtain an administrative authorisation, which was refused. The relevant decision became final on 31 March 2003 (see paragraphs 10 - 14 above).

32. Although the notification date of the above-mentioned final decision remains unknown, the Court notes that the applicant, represented by a lawyer in all domestic proceedings, made reference to it in his complaint dated 17 January 2011 for the administrative malpractice (see paragraph 19 above). The applicant was therefore aware of that decision on 17 January 2011 at the latest, that is, more than six months before the introduction of the present application on 22 July 2011.

33. In the light of the foregoing, the Court finds that the applicant failed to comply with the six-month rule. The application must therefore be rejected, pursuant to Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 6 September 2018 .

Hasan Bakırcı Paul Lemmens              Deputy Registrar President