Last Updated on April 23, 2020 by LawEuro
SECOND SECTION
DECISION
Application no. 59242/08
Recep YILMAZ
against Turkey
The European Court of Human Rights (Second Section), sitting on 11 February 2020 as a Committee composed of:
Valeriu Griţco, President,
Arnfinn Bårdsen,
Peeter Roosma, judges,
and HasanBakırcı, Deputy Section Registrar,
Having regard to the above application lodged on 27 November 2008,
Having regard to the declaration submitted by the respondent Government on 28 August 2019 requesting the Court to strike the application out of the list of cases and the applicant’s reply to that declaration,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
1. The applicant, MrRecepYılmaz, is a Turkish national, who was born in 1955 and lives in Ankara. He was represented before the Court by Mr B. Bir, a lawyer practising in Ankara.
2. The Turkish Government (“the Government”) were represented by their Agent.
3. The applicant complained under Article 6 of the Convention of the alleged lack of independence and impartiality of the General Staff Court on account of the presence of the military officer on its bench. In the same vein, he also alleged that although he was a civilian, he had been tried by a court composed exclusively of military personnel. The applicant further complainedof the alleged unfairness of the criminal proceedings as a result of the disciplinary segregation (ihtilattan men), the resulting denial of legal assistance while he was in custody and the subsequent admission by the trial court into evidence of the statements he had made during that period.The applicant further alleged that he had not been informed of his basic rights before making statements to the public prosecutor.
4. The application had been communicated to the Government.
THE LAW
A. As regards the complaint under Article 6 § 1 of the Convention concerning the independence and impartiality of the General Staff Court
5. After unsuccessful friendly-settlement negotiations, by a letter dated 28 August 2019 the Government informed the Court that they proposed to make a declaration with a view to resolving the issues raised by the application.
6. The declaration provided as follows:
“I declare that the Government of Turkey offer, by this unilateral declaration, to pay the applicant, Mr. Recep YILMAZ, EUR 500 (five hundred euros) to cover any pecuniary and non-pecuniary damage and any cost and expenses including lawyer’s fees, plus any tax that may be chargeable to the applicant with a view to resolving the case pending before the European Court of Human Rights.
This sum will be converted into the currency of the respondent state at the rate applicable on the date of payment, and will be payable within three months from the date of notification of the decision taken by the Court to strike the case out of its list of cases. ln the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The payment will constitute the final resolution of the case before the European Court of Human Rights. The Government respectfully invite the Court to declare that it is no longer justified to continue the examination of the application and to strike it out of its list of cases in accordance with Article 37 of the Convention.
The Government also acknowledge that, at the material time, the military court which had tried and convicted the applicant could not be considered to have been independent and impartial within the meaning of Article 6 of the Convention (İbrahim Gürkan v. Turkey, no.10987/10, 3 July 2012).
The Government also state that the subject matter of the violation found in the case of İbrahim Gürkan v, Turkey was solved by the amendment made on Law no. 353 by the Law no. 6000 entered into force on 30 July 2010. The Government further note that by Law no.677l, the military courts have been abolished.”
7. By a letter of 15 October 2019, the applicant’s representative indicated that he was not satisfied with the terms of the unilateral declaration as he found the amount offered by the Government too low given the seriousness of the complaints.
8. The Court reiterates that Article37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified, under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:
“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.
9. It also reiterates that in certain circumstances, it may strike out an application under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued.
10. To this end, the Court has examined the declarationin the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (Tahsin Acar v. Turkey (preliminary objections) [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI; WAZA Sp. z o.o. v. Poland (dec.), no. 11602/02, 26June2007; and Sulwińska v. Poland (dec.), no. 28953/03, 18 September 2007).
11. The Court has established its practice concerning complaints of independence and impartiality of the military courts on account of the presence of a military officer in its court’s benchin Gürkan v. Turkey, (no. 10987/10, §§13-20, 3July2012). In that judgment, the Court held thatthe military officer had remained in the service of the army and had been subjected to military discipline and that these officers had been appointed as judges by their hierarchical superiors and had not enjoyed the same constitutional safeguards provided to the other two military judges. The Court further concluded that the Military Criminal Court which had tried and convicted the applicant could not be considered to have been independent and impartial within the meaning of Article 6 of the Convention. Moreover, the Court held that the finding of a violation of Article 6 § 1 of the Convention had constituted sufficient just satisfaction for the non-pecuniary damage sustained by the applicant.
12. The Court further observes that the Government have explicitly acknowledged in their unilateral declaration a violation of Article6 § 1 of the Convention on account of the independence and impartiality of the military courts. It is also important to note thatthe military courts have been abolishedby Law no. 677l.
13. The Court further notes that, until 31 July 2018, Article 311 § 1 (f) of the Code of Criminal Procedure provided applicants with a remedy entailing the possibility of reopening criminal proceedings solely on the basis of a judgment of the Court finding a violation of the Convention or the Protocols thereto. However, following the entry into force of Law no. 7145 on 31 July 2018, applicants are now entitled to lodge an application for the reopening of criminal proceedings following a decision by the Court to strike their case out of its list of cases on the basis of a friendly settlement or a unilateral declaration, as these two situations are now exhaustively listed in Article 311 § 1 (f) of the Code of Criminal Procedure as grounds for the reopening of criminal proceedings. Thus, the Court is satisfied that the domestic law provides for a remedy whereby the applicants are able to request the reopening of proceedings following a decision or judgment striking out an application on the basis of a friendly settlement or a unilateral declaration (contrast, Igranov and Others v.Russia, nos. 42399/13 and 8 others, §26, 20 March 2018, with further references therein, and compare Sroka v. Poland (dec.), no.42801/07, 6March 2012).
14. In that connection, it further points out that in accordance with the Court’s case-law and practice, reopening of the domestic proceedings is the most appropriate way to provide an effective solution to an alleged breach of Article 6 of the Convention, should the applicant so request. Thus, it is considered that the aforementioned remedy is capable of providing redress in respect of the applicant’s complaints under Article 6 of the Convention. Bearing in mind the Court’s subsidiary role in protecting the rights and freedoms guaranteed by the Convention and its Protocols, the Court notes that it falls, in the first place, to the national authorities to redress any violation of the Convention.
15. Having regard to the nature of the admissions contained in the Government’s declaration, as well as the amount of compensation proposed – which is consistent with the amounts awarded in similar cases – the Court considers that it is no longer justified to continue the examination of the application (Article37§1(c)). That decision is without prejudice to the possibility for the applicant to exercise any other available remedies in order to obtain redress (see Jeronovičs v. Latvia [GC], no.44898/10, §§ 116‑118, 5 July 2016).
16. Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the topic, 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 (Article 37 § 1 in fine).
17. Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the application could be restored to the list in accordance with Article 37 § 2 of the Convention (Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008).
18. In view of the above, it is appropriate to strike this part of the application out of the list.
B. As regards the remaining complaints under Article 6 of the Convention
19. Relying on Article 6 §§ 1 and 3 (c) of the Convention, the applicant further complained of the fact that he had stood trial as a civilian before a court which composed exclusively of military personnel. The applicant also complained of the disciplinary segregation and the resulting denial of legal assistance stemming from Law no. 353 while he was in custody between 28 March 2003 and 27 June 2003. Lastly, he complained of the alleged failure to inform him of his basic rights before giving statements to the public prosecutor.
20. The Court reiterates that as the applicant is entitled to lodge an application for the reopening of criminal proceedings following the entry into force of Law no. 7145 on 31July 2018 (see paragraph 16 above), a fresh examination of the case would be possible, and that the aforementioned remedy is capable of providing redress in respect of hisremaining complaints under Article 6 §§ 1 and 3 (c) of the Convention.
21. In the view of above and regard being had to the Court’s case law itconsiders that there is no need to examine the admissibility or the merits of theabove complaints(see, mutatis mutandis, Mustafa Karatepe v. Turkey, no. 65942/01, §21, 29 November 2007).
For these reasons, the Court, unanimously,
Takes note of the terms of the respondent Government’s declaration under Article 6 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;
Decides to strike the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention in so far as it relates to the complaints under Article 6 § 1 of the Convention concerning the independence and impartiality of the military court;
Decides that there is no need to examine the admissibility or the merits of the remaining complaints under Article 6 of the Convention.
Done in English and notified in writing on 19 March 2020.
Hasan Bakırcı Valeriu Griţco
Deputy Registrar President
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