SECOND SECTION

DECISION

Application no . 10957/07 Fadime Gonca ÅžAHÄ°N and others against Turkey

The European Court of Human Rights (Second Section), sitting on 23 October 2012 as a Committee composed of:

Isabelle Berro-Lefèvre , President

Guido Raimondi ,

Helen Keller , judges, and Françoise Elens-Passos , Deputy Section Registrar ,

Having regard to the above application lodged on 15 February 2007,

Having deliberated, decides as follows:

THE FACTS

The applicants, whose names appear in the appendix, are Turkish nationals, and are represented before the Court by Ms D. Hatipoğlu Aydın , a lawyer from Ankara . The Turkish Government (“the Government”) are represented by their Agent.

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

At the time of the events, the applicants were students at the Middle East Technical University in Ankara . According to the scene of incident report drafted and signed by four gendarmerie officers, on 15 April 2005 at 9.30 a.m. the applicants were arrested by gendarme officers at the university campus.

On the same day, at about 11.40 a.m. the applicants were examined by a forensic expert. According to his report, the first applicant had a bruise of 0.5 x 1 cm on her right arm. The second applicant had sustained a bruise of 0.5 cm on her left arm. The third applicant had four bruises on his left arm and on his neck. Finally, the fourth applicant had a V-shaped bruise on his left scapula.

On 21 September 2005 the applicants lodged a complaint with the Ankara public prosecutor ’ s office against the gendarme officers, who had arrested them. They alleged that their arrest had been unlawful and that the excessive force used for their arrest by the officers had constituted ill ‑ treatment.

On an unspecified date the Ankara public prosecutor requested the Çankaya district governor to grant authorisation for the prosecution of the gendarme officers pursuant to the Law on the Prosecution of Civil Servants. On 16 January 2006 the district governor refused to do so, holding that the applicants had refused to leave the scene of the incident despite the officers ’ warnings, resisted arrest and insulted the officers.

The applicants filed an objection against this decision. On 2 June 2006 the Ankara Regional Administrative Court dismissed their objection. This decision was served on the applicants on 10 July 2006.

Meanwhile, based on the decision of the Çankaya District Governor, on 30 January 2006 the Ankara public prosecutor used his discretionary power pursuant to Article 171 of the Criminal Code and decided that no further action be taken on the complaint. The applicants lodged an objection with the Sincan Assize Court . However, by virtue of Article 173 of the Criminal Code, no objection can be lodged in cases where the public prosecutor uses his discretion for not initiating a prosecution. Accordingly, on 19 July 2006 the assize court dismissed the objection, without examining the merits of the case. The assize court ’ s decision was served on the applicants on 16 August 2006.

In the meantime, on 4 May 2005 the Ankara public prosecutor issued a bill of indictment against the applicants, charging them with resistance to security officers and insulting behaviour.

On 14 December 2006 the Ankara Criminal Court convicted the applicants as charged. In the light of the documents in the file, the statements of the gendarme officers, the applicants and a number of witnesses, the court found the scene of incident report made by the gendarmerie officers on 15 April 2005 to be correct. The applicants were sentenced to five months ’ imprisonment, which was further commuted to a fine.

On 3 April 2009 the Court of Cassation quashed the judgment of the first-instance court, holding that the latter should have considered the possibility of suspending the pronouncement of the judgment for a period of five years pursuant to Article 231 of the Code of Criminal Procedure.

On 16 September 2009 the Ankara Criminal Court decided to suspend the pronouncement of the judgment.

COMPLAINTS

1. Relying on Article 3 of the Convention the applicants maintained that they had been ill-treated during their arrest and that their allegations of ill ‑ treatment had not been thoroughly examined.

2. Under Article 5 § 1 of the Convention, the applicants alleged that their arrest was unlawful.

THE LAW

1. The applicants complained under Articles 3 of the Convention that they had been ill-treated during their arrest and that their allegations had not been thoroughly examined.

The Court notes firstly that the Government did not object on the ground of failure to comply with the six-month time-limit. However, that is a public policy rule, and the Court may apply it of its own motion (see , Soto Sanchez v. Spain ( dec .), no. 66990/01, 20 May 2003).

It must therefore be ascertained whether the applicants lodged their application within the six-month time-limit laid down in Article 35 of the Convention.

Regarding the applicants ’ Article 3 complaint, the Court observes that the Ankara Public Prosecutor instituted an investigation into their allegations and pursuant to the Law on the Prosecution of Civil Servants, he transferred the case file to the Çankaya Governor ’ s office for leave to open criminal proceedings against the accused gendarme officers. The Governor ’ s office refused to do so and this decision was upheld by the Ankara Regional Administrative Court on 2 June 2006. This decision, which was final in the instant case, was subsequently notified on the applicants on 10 July 2006.

The Court further notes that in the meantime, namely on 30 January 2006, the Ankara Public Prosecutor used his discretionary power under Article 171 of the Criminal Code, and decided to take no further action on the applicants ’ complaint. In this connection, the Court observes that by virtue of Article 173 of the Criminal Code, such decisions are not subject to an appeal. Regardless of this fact, the applicants made a futile appeal request with the Sincan Assize Court , which was rejected on 19 July 2006, without an examination of the merits of the case. Consequently, the applicants ’ futile attempt to a domestic remedy which was not available to them cannot be considered as interrupting the running of the six-month time-limit.

In view of the foregoing, the Court concludes that since the application was lodged on 15 February 2007, neither the decision of the Ankara Public Prosecutor dated 30 January 2006 nor the decision of the Ankara Regional Administrative Court dated 2 June 2006, and notified on the applicants on 10 July 2006, is incompliance with the six-month time-limit, foreseen under Article 35 of the Convention.

It follows that this part of the application has been introduced out of time and must be rejected within the meaning of Article 35 §§ 1 and 4 of the Convention.

2. The applicants complained under Article 5 of the Convention that their arrest had been unlawful.

The Court notes that the applicants were arrested on 15 April 2005, whereas the application was lodged on 15 February 2007; that is more than six months later. Nevertheless, it observes that the applicants subsequently lodged a criminal complaint with the public prosecutor regarding their alleged ill-treatment. In their petition, without giving any details, they further stated that their arrest was unlawful. In his investigation, the public prosecutor mainly examined the complaint relating to the applicants ’ ill ‑ treatment and did not provide any reply to their claim regarding the unlawfulness of their arrest. In the particular circumstances of the present case, even assuming that the applicants ’ complaint lodged with the public prosecutor interrupted the running of the six months time-limit, the Court refers to its findings above and holds that the applicants should have lodged their application with the Court within six months after the decision of the Ankara Public Prosecutor dated 30 January 2006.

Accordingly, this part of the application should also be rejected for non ‑ compliance with the six-month time-limit pursuant to Article 35 §1 and § 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Françoise Elens-Passos Isabelle Berro-Lefèvre Deputy Registrar President

Appendix