SECOND SECTION

DECISION

Application no . 38332/11 Hüseyin and Aynur ATE Ş against Turkey

The European Court of Human Rights ( Second Section ), sitting on 24 March 2015 as a Committee composed of:

Nebojša Vučinić , President , Paul Lemmens, Egidijus Kūris , judges ,

and Abel Campos, Deputy Section Registrar ,

Having regard to the above application lodged on 1 June 2011 ,

Having deliberated, decides as follows:

THE FACTS

1. The applicants, Mr Hüseyin Ateş and Ms Aynur Ateş , are Turkish nationals, who were born in 1960 and 1966 respectively and live in Antalya . They were represented before the Court by Mr Ağaoğlu , a lawyer practising in Alanya .

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

3 . On 23 May 2002, the applicants ’ son Alican Ateş , who was 14 years old at the time of the event, died as a result of a car accident that ha ppened in the village of Alanya ( province of Antalya ) . A bus entered into a road which was closed to traffic for construction work and hit the child who was walking on the pavement.

4 . The bus driver and the site manager of the road construction work were subjected to criminal proceedings. According to the expert report, the bus driver ’ s responsibility for the accident was assessed as being 6/8 as he intentionally entered a closed road and he did not reduce his speed. The site manager ’ s responsibility for the accident was determined as being 1/8 for not having taken the necessary security measures.

5 . On 11 November 2003, the Alanya 2nd Criminal Court of General Jurisdiction convicted and sentenced the bus driver to 18 months ’ imprisonment and to a judicial pecuniary fine and the site manager to 3 months ’ imprisonment and a judicial pecuniary fine which was then reduced to a pecuniary fine only.

6 . On 8 June 2006, the Court of Cassation quashed the judgment of the first instance court stating that the sentences given to the accused persons should be recalculated in consideration of the new criminal code which entered into force on 1 June 2005 , and due to the fact that the first instance court did not duly take the oath of the doctor who submitted the autopsy report.

7 . On 29 September 2006, the Alanya 1st Criminal Court of General Jurisdiction corrected the shortcomings indicated by the Court of Cassation and once more convicted and sentenced the bus driver to 18 months ’ imprisonment and to a judicial pecuniary fine and the site manager to 3 months ’ imprisonment and a judicial pecuniary fine which was then reduced to a pecuniary fine only.

8 . On 25 October 2007, the Court of Cassation quashed the judgment of the first instance court stating that the first instance court did not indicate on the judgment ’ s heading the place and date of the crime, this failure being contrary to Article 232 of the Code of Criminal Procedure and also due to the fact that the accused was not given the opportunity to give his statements following the Court of Cassation ’ s quashing of the judgment.

9 . On 23 September 2008, the Alanya 1st Criminal Court of General Jurisdiction complied with the instructions of the Court of Cassation and once again condemned the accused persons.

10 . On 27 December 2010, the Court of Cassation quashed the judgment of the first instance court stating that the case was time-barred.

11 . The applicants were notified of this final decision on 18 May 2011.

COMPLAINT S

12 . The applicants invoked Article 6 of the Convention and complained about the length of the criminal proceedings. They maintained that the fact that the criminal proceedings lasted more than 8 years prevented the punishment of those accused.

THE LAW

13 . The Court observes that the applicants asserted that the length of proceedings was incompatible with the principle of the ‘‘ reasonable time ’’ requirement in accordance with Article 6 § 1 of the Convention.

14 . The Court recalls that in the case of Turgut and others v. Turkey (( dec. ), no. 4860/09, 26 March 2013) it has examined a complaint similar to the one presented by the applicants. In that case it concluded that the applicants, who argued that the duration of the proceedings had violated the “reasonable time” requirement and who complained about the absence in Turkey of a jurisdiction capable of examining complaints relating to the excessive length of proceedings, had to address themselves, in accordance with Article 35 § 1 of the Convention, to the compensation commission set up by Law no. 6384 of 9 January 2013 on the settlement by way of compensation of certain applications filed with the European Court of Human Rights, to the extent that this new remedy was, a priori , accessible and capable of offering a reasonable prospect of redress for their complaints ( Turgut and Others , cited above, § 56).

15 . The Court observes that in the present case the applicants do not indicate that they exhausted this remedy. It sees no fact or argument which could lead to a different conclusion in the instant case. It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

16 . In the case file, the applicants also argued that because of the length of proceedings, the persons who caused the death of their son were not condemned by the competent courts and stated that they had asked for the driver to be punished.

17 . The Court notes that the applicants did not duly invoke Article 2 of the Convention. Even assuming that they did raise it in substance, it should be reiterated that although the right to have third parties prosecuted or sentenced for a criminal offence cannot be asserted independently ( Perez v. France [GC], no. 47287/99, § 70, ECHR 2004-I), the Court has stated on a number of occasions that an effective judicial system, as required by Article 2, may, and under certain circumstances must, include recourse to the criminal law. However, if the infringement of the right to life or to personal integrity is not caused intentionally, the positive obligation imposed by Article 2 to set up an effective judicial system does not necessarily require the provision of a criminal-law remedy in every case. The obligation may for instance also be satisfied if the legal system affords victims a remedy in the civil courts, either alone or in conjunction with a remedy in the criminal courts ( Calvelli and Ciglio v. Italy [GC], no. 32967/96, §§ 51-53, ECHR 2002- I, and Rajkowska v. Poland ( dec. ), no. 37393/02 , 27 November 2007 ).

18 . Turning to the circumstances of the present case, the Court observes that the applicant has not made use of the possibility of bringing compensation proceedings, a remedy that the Turkish legal system affords and that could have led both to the establishment of the driver ’ s and the site manager ’ s liability and to the payment of damages. In this connection, the Court notes that there is nothing in the case file to allow it to conclude that an action for damages would have no reasonable prospects of success and was bound to fail.

19 . In light of the foregoing, it follows that the application must be rejected under Article 35 §§ 1 and 4 of the Convention on the grounds of failure to exhaust domestic remedies.

For these reasons, the Court , unanimously ,

Declares the application inadmissible.

Done in English and notified in writing on 16 April 2015 .

Abel Campos Nebojša Vučinić Deputy Registrar President