SECOND SECTION

DECISION

Application no . 54769/13 Altuğ Müştak BERKER and others against Turkey

The European Court of Human Rights (Second Section), sitting on 20 October 2015 as a Committee composed of:

Egidijus Kūris, President, Jon Fridrik Kjølbro, Stéphanie Mourou-Vikström, judges, and Abel Campos, Deputy Section Registrar ,

Having deliberated, decides as follows:

THE FACTS

The circumstances of the case

1. The applicants, whose names, dates of birth and places of residence are set out in the attached table, are Turkish nationals. They were represented before the Court by Mr Ceyhun Gökdoğan , a lawyer practising in Istanbul.

2. The facts of the case, as submitted by the applicants, may be summarised as follows.

3. The applicants were members of the Science and Research Foundation at the material time and were arrested by the Organised Crime Division of the Istanbul Police Department on 12 November 1999. Their police custody ended in 1999.

4. The applicants filed complaints alleging that they were subjected to ill-treatment whilst in custody.

5. On 26 October 2001 the Fatih Public Prosecutor decided not to prosecute. On 5 December 1997 the BeyoÄŸlu Assize Court quashed that decision.

6. By an indictment dated 22 June 2005, the public prosecutor instituted criminal proceedings in the Istanbul Assize Court against eight police officers.

7. On 28 December 2011 the Istanbul Assize Court acquitted the police officers of the charges. The applicants and the prosecutor appealed against the judgment.

8. On 11 April 2013 the Court of Cassation quashed the judgment of the domestic court.

9. According to the information available to the Court, the case is currently pending before the Istanbul Assize Court.

COMPLAINTS

10. The applicants complained under Articles 3, 6 and 13 of the Convention that they were subjected to ill-treatment whilst in police custody. The applicants further claimed that the investigation by the Fatih Public Prosecutor and the criminal proceedings before the Istanbul Assize Court concerning the police officers who ill-treated them were not effective.

THE LAW

11. The applicants complained about their alleged ill-treatment and the ineffectiveness of the investigation into their complaints. In this connection, they relied on Articles 3, 6 and 13 of the Convention.

12. The Court considers that these complaints should be examined from the standpoint of Article 3 of the Convention alone, which provides:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

13. The Court recalls that under Article 35 § 1 of the Convention it “may only deal with the matter after all domestic remedies have been exhausted”. The purpose of the exhaustion rule is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court. Accordingly, this rule requires applicants first to use the remedies provided by the national legal system, thus dispensing States from answering before the European Court for their acts. Yet, the rule is based on the assumption that the domestic system provides an effective remedy in respect of the alleged breach (see Aydemir and Others (dec.), nos. 9097/05, 9491/05, 9498/05, 9500/05, 9505/05, and 9509/05, 9 November 2010; İçyer v. Turkey (dec.), no. 18888/02, 12 January 2006; and Latak v. Poland (dec.), no. 52070/08, § 75, 12 October 2010).

14. Having examined the new remedy before the Constitutional Court, the Court found that the Turkish Parliament had entrusted that court with powers that enabled it to provide, in principle, direct and speedy redress for violations of the rights and freedoms protected by the Convention, in respect of all decisions that had become final after 23 September 2012, and declared it as a remedy to be used ( Uzun v. Turkey (dec.), no. 10755/13, §§ 68-71, 30 April 2013). Accordingly, the applicants should avail themselves of the new remedy before the Constitutional Court offered by Law no. 6216 ( Uzun, cited above , ibid. and Korkmaz v. Turkey (dec.), no. 64200/13 , § 30, 25 March 2014).

15. It follows that the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 19 November 2015 .

Abel Campos Egidijus KÅ«ris Deputy Registrar President

Appendix