CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 4 juillet 2017

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .s4B243ECC { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .s5F897A7E { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt } .s7E985A65 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; font-size:1pt } .sF7A4323 { margin-top:36pt; margin-bottom:0pt; text-align:left } .s5362FFEB { width:4.87pt; display:inline-block } .s6D6DF111 { width:197.42pt; display:inline-block } .sA2E62387 { width:204.97pt; display:inline-block } .s76CF415B { page-break-before:always; clear:both } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s75A32C27 { border-collapse:collapse } .s28F4263B { height:22.3pt } .s3695F815 { border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top; background-color:#dfdfdf } .s5FFF0A7F { margin-top:0pt; margin-bottom:0pt; font-size:9pt } .sEECE831 { font-family:Arial; font-weight:bold; color:#474747 } .sE8934522 { border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top } .s6B505E72 { margin:0pt; padding-left:0pt } .s2EBECB52 { font-family:Arial; font-size:9pt; list-style-position:inside } .sA0D17C33 { width:1.64pt; font:7pt 'Times New Roman'; display:inline-block } .sD7287D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:9pt }     SECOND SECTION DECISION Application no. 22879/10 Zeynep UYKUR against Turkey and 2 other applications (see list appended) The European Court of Human Rights (Second Section), sitting on 4   July 2017 as a Committee composed of:   Julia Laffranque, President,   Jon Fridrik Kjølbro,   Stéphanie Mourou-Vikström, judges, and Hasan Bakırcı, Deputy Section Registrar, Having regard to the above applications lodged on the various dates indicated in the appended table, Having deliberated, decides as follows: THE FACTS 1.     A list of the applicants is set out in the appendix. The circumstances of the case 2.     The applicants are the daughter, wife, parents and brothers of the late Ali   Berkhan Uykur (“A.B.U.”). The facts of the case, as submitted by the applicants, may be summarised as follows. 3.     On 19 May 2000 A.B.U. died while he was scuba diving with instructors from a private scuba diving centre. The death had apparently occurred due to his rapid ascent to the surface on account of his low air supply. 1.     Criminal proceedings 4.     Following a criminal investigation, charges were brought against the owner of the diving centre, E.D., the two instructors who had accompanied A.B.U. during his dive, A.H.S. and A.F.İ., and the head of the Turkish Underwater Sports Federation, H.S., for causing death through negligence. It appears that the applicant Ms Mediha Yasemin Uykur, joined the ensuing criminal proceedings as a civil party ( müdahil ) without, however, requesting any compensation. 5.     On 28 September 2006 the Ayvalık Criminal Court of First Instance ordered the acquittal of the head of the Turkish Underwater Sports Federation H.S., but declared the remaining defendants guilty as charged. Accordingly, they were sentenced to fines, which were suspended. 6.     On 7 July 2008 the Court of Cassation discontinued the proceedings, holding that the prosecution of the offence in question had become time ‑ barred. 2.     Compensation proceedings 7.     On 3 March 2006 the applicants Ms Zeynep Uykur and Ms   Mediha   Yasemin Uykur brought compensation proceedings against E.D., A.H.S. and A.F.İ. before the Ankara Civil Court of First Instance. 8.     On 13 May 2010 the Ankara Civil Court of First Instance ordered the payment of a total of 100 Turkish liras (TRY) in respect of pecuniary damage and TRY 18,000 as non-pecuniary damage to the two applicants, plus interest running from the date of the accident. 9.     On 28 June 2012 the Court of Cassation quashed the judgment of the Ankara Civil Court of First Instance, holding that it was the Consumer Court, rather than the civil court of first instance, that had the jurisdiction to hear the case. 10.     On 22 November 2012 the Ankara Civil Court of First Instance issued a decision of non-jurisdiction ( görevsizlik kararı ) in compliance with the ruling of the Court of Cassation. It held that, in accordance with Article   20 of the Code of Civil Procedure, the case file would be transferred to the Consumer Court upon a request to be lodged by the claimants within two weeks of the finalisation of the present decision. 11.     The applicants did not inform the Court whether they appealed against the decision of the Ankara Civil Court of First Instance or they requested the transfer of their case to the Consumer Court, in accordance with the procedure provided under the Code   of Civil Procedure. COMPLAINTS 12.     The applicants complained under Article 6 § 1 of the Convention about the length of the criminal proceedings, which had led to their discontinuation for having become time-barred. 13.     They also complained under Article 2 that A.B.U. had lost his life as a result of the failure of the relevant State authorities to display the requisite diligence in the licensing and inspection of private diving centres. THE LAW 14.     Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision. A.     As regards the application lodged by Mr Ahmet Kamuran Uykur (Application no. 22939/10) 15.     According to the information in the case file, one of the applicants in application no. 22939/10, namely Mr Ahmet Kamuran Uykur, died on an unspecified date after lodging his application with the Court. The remaining three applicants, who are the wife and children of the late Mr   Ahmet   Kamuran Uykur, did not indicate their wish to continue the application in respect of his complaints. 16.     The Court is satisfied that respect for human rights as defined in the Convention and the protocols thereto does not require it to continue the examination of the application inasmuch as it concerns the complaints made on behalf of Mr Ahmet Kamuran Uykur (see, amongst others, Dinçer and Others v.   Turkey , no. 10435/08, §§ 13-14, 3   November 2011). 17.     In view of the above, it is appropriate to strike the case out of the list pursuant to Article 37 § 1 (c) of the Convention insofar as it relates to Mr   Ahmet Kamuran Uykur. B.     As regards the alleged violation of Article 6 § 1 of the Convention 18.     To the extent that the applicants invoke Article 6 § 1 of the Convention to complain of an infringement of their right to a fair trial on account of the length of the criminal proceedings at issue, the Court reiterates that the Convention does not confer any right, as such, to have third parties prosecuted or sentenced for a criminal offence (see Perez v.   France [GC], no. 47287/99, § 70, ECHR 2004 ‑ I). Therefore, a victim of an offence may only invoke his or her fair trial rights in connection with the criminal proceedings against the offender if he or she has joined those proceedings as a civil party to obtain damages or to otherwise protect his or her civil rights (see, for instance, Hafikli v. Turkey (dec.), no.   13394/12, 30   August 2016). The Court notes that while the Turkish Code of Criminal Procedure in force at the material time allowed civil parties to request compensation during criminal proceedings (see Beyazgül v. Turkey , no.   27849/03, §§ 36 and 39, 22 September 2009), there is no information in the case file to suggest that Ms Mediha Yasemin Uykur, the only one of the applicants who had joined the criminal proceedings as a civil party, had made such request. 19.     In these circumstances, and relying on its settled case-law on this matter, the Court concludes that this part of the application is incompatible ratione materiae with the provisions of the Convention and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention (see Hafikli , cited above). C.     As regards the alleged violation of Article 2 of the Convention 20.     The Court notes that the basic principles concerning a State’s positive obligation to protect the right to life, including against non ‑ intentional infringements of that right, were set out by the Grand   Chamber in the case of Öneryıldız v. Turkey ([GC], no.   48939/99, §§   89-96, ECHR 2004 ‑ XII), and further elaborated on in Budayeva and Others v. Russia (nos. 15339/02 and 4 others, §§ 128-145, ECHR   2008 (extracts)). 21.     The Court notes in this connection that in the event of serious injury or death, the duty to safeguard the right to life under Article 2 requires the State to have in place an effective independent judicial system securing the availability of legal means capable of promptly establishing the facts, holding accountable those at fault and providing appropriate redress to the victim (see, for instance, Dodov v. Bulgaria , no.   59548/00, § 83, 17   January 2008, and Ciechońska v. Poland , no. 19776/04, § 67, 14 June 2011). Although this obligation may require the provision of a criminal-law remedy in certain special circumstances (see, for instance, Öneryıldız , cited above, §§ 93-96; Mehmet Şentürk and Bekir Şentürk v.   Turkey , no.   13423/09, §§ 104-106, ECHR 2013; Oruk v. Turkey , no.   33647/04, §§   50 and 65, 4 February 2014; Mikhno v. Ukraine, no.   32514/12, §   131, 1   September 2016; Aydoğdu v. Turkey , no. 40448/06, §§   62-64 and §§   87 ‑ 88, 30 August 2016; and Gençarslan v. Turkey (dec.), no.   62609/12, §§   19-22, 14 March 2017), the Court stresses that neither Article 2 nor any other provision of the Convention guarantees an applicant a right to secure the prosecution and conviction of a third party or a right to “private revenge” (see Perez , cited above, § 70, and Öneryıldız , cited above, §   147). The Court reiterates in that regard that where death results from negligence, for instance, the obligation under Article 2 may 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 (see Ciechońska , cited above, § 66). 22.     The Court notes that in the instant case, the applicant does not complain about the absence of a legislative or regulatory framework governing recreational diving activities, or of a structural deficiency that had resulted from a dysfunctioning of the relevant legal or regulatory framework (see, for instance, Aydoğdu, cited above ). The Court further notes that the applicants do not claim that the death of A.B.U. had been caused intentionally or that the circumstances in which the death had occurred were such as to raise suspicions in that regard. Nor do they argue that the death had resulted from the inaction of the authorities in the face of a real and immediate risk to the life of A.B.U. which they knew or ought to have known (see Paul and Audrey Edwards v.   the United Kingdom , no.   46477/99, § 55, ECHR 2002 ‑ II), that it had involved a dangerous activity occurring under the responsibility of the public authorities (see, for instance, Öneryıldız , cited above, § 93), or that it had been caused by negligence that went beyond a mere error of judgment or carelessness (see, for instance, Mehmet Şentürk and Bekir Şentürk , cited above). They rather complain under Article 2 that A.B.U. had lost his life as a result of the failure of the relevant State authorities to show sufficient care in the licensing and inspection of the activities of the private diving centre in question. 23.     The Court considers, having regard to its jurisprudence in cases involving non-intentional infringements of the right to life (see, for instance, Murillo Saldias and Others v. Spain (dec.), no.   76973/01, 28   November   2006; Anna Todorova v. Bulgaria , no. 23302/03, §   73, 24   May 2011; Ciechońska, cited above ; and Gençarslan , cited above) and to the applicants’ particular complaints, that Article 2 of the Convention did not necessarily require a criminal-law remedy in the circumstances of the present case and that it could be satisfied if the applicants had at their disposal an effective civil-law remedy capable of establishing the facts and the responsibility of the authorities for the accident and enabling them to obtain redress, as appropriate. 24.     The Court has already held in similar cases that an administrative action against State authorities would provide such an effective remedy (see, for instance, Hafikli , cited above, and the cases cited therein). The Court notes that two of the applicants brought compensation proceedings against the owner and the instructors of the private diving centre, although it is not clear whether they have duly pursued those proceedings before the correct judicial authority (see paragraph 11 above). None of the applicants have, however, brought an administrative action against the State authorities whom they held accountable for A.B.U.’s death in their complaints before the Strasbourg Court (see paragraph 13 above). 25.     It follows that this complaint must be rejected under Article 35 §§   1 and 4 of the Convention on the grounds of a failure to exhaust domestic remedies. For these reasons, the Court, unanimously, Decides to join the applications; Decides to strike the case out of its list of cases insofar as it concerns Mr   Ahmet Kamuran Uykur; Declares the remainder of the applications inadmissible.   Done in English and notified in writing on 7 September 2017.   Hasan Bakırcı   Julia Laffranque Deputy Registrar   President   Appendix   No. Application No. Applicant   Date of birth   Representative Lodged on   22879/10 Zeynep UYKUR   30/05/1988 A. URFİOĞLU 01/04/2010   22883/10 Mediha Yasemin UYKUR   18/11/1958 A. URFİOĞLU 01/04/2010   22939/10   Ahmet Kamuran UYKUR   Özhan Özcan UYKUR   İsmail İlhan UYKUR   Sait Altan UYKUR   07/07/1928     21/11/1932   18/04/1957   06/07/1958       _ 15/04/2010