CASE OF FELLNER AND OTHERS v. TURKEY – 13312/08 and 840 others

Last Updated on September 12, 2023 by LawEuro

SECOND SECTION
CASE OF FELLNER AND OTHERS v. TURKEY
(Applications nos. 13312/08 and 840 others – see appended list)
JUDGMENT
(Revision)
STRASBOURG
12 September 2023

This judgment is final but it may be subject to editorial revision.

In the case of Fellner and Others v. Turkey (request for revision of the judgment of 10 October 2017),

The European Court of Human Rights (Second Section), sitting as a Committee composed of:
Egidijus Kūris, President,
Pauliine Koskelo,
Davor Derenčinović, judges,
and Dorothee von Arnim, Deputy Section Registrar,

Having deliberated in private on 11 July 2023,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in 841 applications against the Republic of Türkiye lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by the individuals listed in the appendix to the Court’s judgment of 10 October 2017 (see paragraph 2 below – “the applicants”) on various dates between 4 March 2008 and 18 January 2012. The applicants were represented by Ms J. Ertürk, a lawyer practising in Ankara. The Turkish Government (“the Government”) were represented by their Agent.

2. In a judgment delivered on 10 October 2017, the Court held that there had been a violation of Article 6 § 1 of the Convention in respect of the third set of proceedings concerned in those applications specifically marked in the annex to that judgment and a violation of Article 1 of Protocol No. 1 to the Convention in respect of all applications. The Court also decided to award the applicants various sums totalling 9,679,799.26 euros (EUR) in respect of pecuniary damage, as well as EUR 25,000 jointly in respect of costs and expenses and dismissed the remainder of the claims for just satisfaction.

3. On various dates the applicants’ representative informed the Court that she had learned that certain applicants had died. She provided information regarding heirs who wished to pursue the applications and were able to present a certificate of inheritance or a certificate of representation. She also provided information on some of the applications where no heir or close relative expressed a wish to pursue the applications or presented a certificate of inheritance or a certificate of representation. She accordingly requested revision of the judgment under Rule 80 of the Rules of Court.

4. The Court considered the request and decided to give the parties time to submit any observations on the matters raised. Their observations were received by the Court on various dates.

THE LAW

I. THE REQUEST for revision

5. The applicants’ representative requested revision of the judgment of 10 October 2017 on the grounds that the judgment had not been executed in certain cases as some of the applicants had died. The representative submitted that the sums awarded to the deceased applicants should be paid to their heirs. She provided information concerning heirs who wished to pursue the applications and maintained that some of the applicants’ relatives were unable to present a certificate of inheritance or a certificate of representation.

6. The Government argued that the right of application had been abused by lodging applications in respect of persons who were already deceased. In addition, the Government argued that there had been a clear intention to mislead the Court as the applicants’ representative had consciously chosen not to inform it of the deaths of the applicants while the cases were still pending. According to the Government, this information was essential for the examination of the applications under Rule 44C § 1 and Rule 47 § 7 of the Rules of Court. Accordingly, the Government suggested that the applications that were lodged after the applicants’ deaths should be declared inadmissible and applications where applicants died while their cases were pending before the Court and applications where certificates of inheritance or a certificate of representation were not submitted should be struck out of the list of cases.

7. The applicants’ representative did not accept the Government’s objections. She argued that the Government had not presented any evidence of an intention to mislead the Court and that such arguments were speculative. She asserted that none of the applications had been lodged knowing that the applicants were already deceased and that therefore the Government’s claim that the applications had been lodged in bad faith should be rejected.

8. The applicants’ representative specifically explained in her letter dated 18 September 2019 that she had been unaware of the applicants’ deaths while the cases were pending and that she had found out about their deaths at a later stage. In her letter dated 31 August 2022, she explained that she had not been informed by the deceased applicants’ heirs or close relatives before and affirmed that she informed the Court of the deaths of the applicants without any delay, as soon as information relating to the deaths had come to her attention.

9. The applicants’ representative also asserted in her numerous submissions that there were many applicants living in different countries other than her home country and that it was near impossible for her to keep track of the deaths. In addition, she also argued that there had been various compelling reasons that would explain the time taken by the heirs to notify her such as inability to learn about the death of their relatives because the applicants lived in other countries, not knowing about an application before the Court, not knowing the specificities of the case or not knowing what to do in a situation like this. In this context, she also provided information regarding heirs who wished to pursue the applications and were able to present a certificate of inheritance or a certificate of representation. She also provided information on applications where no heir or close relative expressed a wish to pursue the applications or presented a certificate of inheritance or a certificate of representation.

10. The applicants’ representative argued that it should be accepted in the light of these elements that the revision request had been made within six months – in other words, within the time-limit laid down in Rule 80 § 1 of the Rules of Court.

II. THE COURT’S DECISION

A. As regards the request for revision

11. Rule 80 of the Rules of Court, in so far as relevant, provides:

“1. A party may, in the event of the discovery of a fact which might by its nature have a decisive influence and which, when a judgment was delivered, was unknown to the Court and could not reasonably have been known to that party, request the Court, within a period of six months after that party acquired knowledge of the fact, to revise that judgment.

…”

12. The Court considers that the death of some of the applicants constitutes “the discovery of a fact … which when [the] judgment was delivered, was unknown to the Court”. It also constitutes a fact of “decisive influence” on the outcome of the judgment within the meaning of Rule 80 § 1, notably on the allocation of the amount awarded under Article 41 of the Convention.

13. As regards the compliance with the six-month time-limit in Rule 80 § 1, the Court further observes that the applicants’ lawyer notified the Court of the deaths of some of the applicants after the judgment was adopted, with numerous submissions spread over a period of several years. Despite the fact that she did not provide the Court with documents showing when she had been made aware of the deaths in each separate case, there is nothing to indicate that she did not inform the Court of the deaths of the applicants in due course, as soon as information relating to the deaths had come to her attention (see paragraph 8 above).

14. As for the heirs of the deceased applicants, the Court can accept the explanations given by the applicants’ representative regarding the reasons for which some of the heirs took time to become aware of the fact that the death of their relative had a decisive influence on an application before the Court (see paragraph 9 above) and to notify the Court via their representative of that death. Taking into account its practice in this regard (see Süleyman Çelebi and Others v. Turkey (no. 2) (revision), nos. 22729/08 and 10581/09, § 9, 4 February 2020, with further references, where the Court decided to revise its judgment in favour of an applicant’s successors even though the applicant had died almost nine years before the adoption of the judgment), the Court considers that the revision requests were made in time for the purposes of Rule 80 § 1. Accordingly, the judgment of 10 October 2017 should be revised pursuant to Rule 80 of the Rules of Court.

B. Applications where the applicants were already deceased when their applications were lodged

15. The Court observes that, in the eighteen applications listed in Appendix 1, all the applicants had died before their applications were lodged with the Court. The Court reiterates that applications can be brought only by living persons or on their behalf; a deceased person cannot lodge an application (see Aizpurua Ortiz and Others v. Spain, no. 42430/05, §§ 29-30 and 41, 2 February 2010).

16. In the present case, the applicants listed in Appendix 1 had died before the applications were lodged, and these cases can therefore be distinguished from cases in which an applicant’s heirs were permitted to pursue an application which had already been lodged (see Fairfield and Others v. the United Kingdom (dec.), no. 24790/04, ECHR 2005-VI, with reference back to Dalban v. Romania [GC], no. 28114/95, § 39, ECHR 1999‑VI).

17. Accordingly, the Court concludes that the applicants in Appendix 1 did not have standing under Article 34 of the Convention to complain of a violation and declares the applications listed in Appendix 1 inadmissible as being incompatible ratione personae with the provisions of the Convention, for the purposes of Article 35 § 3 (a) and 4 of the Convention. That being so, the Court does not find it necessary to examine the Government’s objection regarding the alleged abuse of the right of application in respect of these applications.

C. Applications where the applicants died after the introduction of the application

18. The Court notes that the applicants listed in Appendix 2 died after lodging their applications but before the adoption of the judgment.

19. The Court, having regard to its case-law (see the references in paragraph 16 above), therefore considers that the amounts awarded by the judgment of 10 October 2017 to the applicants listed in Appendix 2 shall be awarded to their heirs in accordance with the provisions of the domestic law governing succession.

D. Applications where certificates of inheritance were not submitted

20. The Court notes that the applicants listed in Appendix 3 died after lodging their applications but before the judgment of 10 October 2017.

21. The applicants’ representative stated in her submissions dated 2 December 2020 that no heir or close relative of the applicants listed in Appendix 3 were able to present a certificate of inheritance or a certificate of representation to pursue the proceedings.

22. The Court reiterates that it has been its practice to strike applications out of the list of cases under Article 37 § 1 (c) of the Convention in the absence of any heir or close relative who has expressed a wish to pursue the application (see Eremiášová and Pechová v. the Czech Republic (revision), no. 23944/04, §§ 9-10, 20 June 2013). Having regard to the fact that some of the applicants died during the proceedings and that no heirs or relatives who proved being entitled to do so expressed the wish to pursue the proceedings, the Court considers that it is no longer justified to continue the examination of those applications. It further finds no special circumstances relating to respect for human rights as defined in the Convention and the Protocols thereto which require it to continue the examination of these applications.

23. Accordingly, the Court decides that the applications listed in Appendix 3 should be struck out of its list of cases in accordance with Article 37 § 1 (c) of the Convention.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Decides to revise its judgment of 10 October 2017;

2. Decides to declare the applications listed in Appendix 1 inadmissible;

3. Holds

(a) that the respondent State is to pay, within three months to the heirs of the deceased applicants listed in Appendix 2 the amounts indicated in the same appendix, to be converted into the currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on those amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4. Decides to strike the applications listed in Appendix 3 out of its list of cases.

Done in English, and notified in writing on 12 September 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Dorothee von Arnim                     Egidijus Kūris
Deputy Registrar                            President

___________

APPENDIX

APPENDIX 1

Applications where applicants were already deceased when the applications were lodged

No.	Application no.	Applicant name	Date of application	Date of death
1.	27663/10	Ingrid Kate Dorle BOOCK	30/03/2010	27/07/2008
2.	38009/10	Georg KUBITZA	09/06/2010	13/11/2009
3.	35842/10	Walter WENGLER	18/06/2010	14/12/2009
4.	22032/10	Emil SCHULTE	02/04/2010	01/05/2005
5.	26462/10	Helge KLUFTINGER	19/04/2010	28/11/2005
6.	19360/10	Harald CLEVEN	30/03/2010	30/12/2006
7.	33730/10	Philippine Christine LINDEMANN	07/05/2010	14/04/2010
8.	32880/10	Ernst SCHWANZER	07/05/2010	20/11/2006
9.	19271/10	Walter SCHAFER	29/03/2010	30/12/2009
10.	19356/10	Klaus Rudolph PETERLEIN	30/03/2010	20/05/2006
11.	24141/10	Harald Karl ORTNER	20/04/2010	26/08/2006
12.	32396/10	Ingeborg LORENZ	20/03/2010	10/03/2010
13.	6468/10	Johann VOGEL	21/01/2010	19/09/2002
14.	6477/10	Willi Ernst SAUCK	21/01/2010	14/01/2009
15.	11297/10	Helmut SCHWARZ	10/02/2010	10/05/2006
16.	24082/10	Karl-Heinz SIELEMANN	20/04/2010	02/12/2007
17.	21532/10	Wolfgang VORNKELLER	01/04/2010	03/05/2002
18.	31402/10	Emanuel BASLER	19/04/2010	03/07/2008

APPENDIX 2

Applications where the applicants died while their cases were pending before the Court

No.		Application no.	Applicant name	Date of application	Date of death	Date of the submission	Amount of just satisfaction awarded in respect of pecuniary damage in the judgment of 10 October 2017 (EUR)
1.		16042/10	Herbert Karl Hermann KRUEGER	16/02/2010	09/12/2011	16/08/2018	4,781.06
2.		19358/10	Walafriede RIETDORF	30/03/2010	31/10/2015	16/08/2018	4,451.51
3.		27669/10	Anna TOMESCH	02/04/2010	01/09/2015	27/07/2016	2,954.79
4.		24112/10	Klaus Walter Paul Emil RUHTZ	20/04/2010	13/09/2015	04/01/2019	4,336.61
5.		7920/10	Hans Karl Georg LABUDE	26/01/2010	08/03/2011	11/02/2019	34,858.58
6.		37374/10	Hans Richard GRIMM	20/05/2010	14/07/2013	23/09/2016	4,375.50
7.		27638/10	Gustav BACKHAUSS	19/04/2010	09/02/2017	16/08/2018	5,909.59
8.		16043/10	Carl Oswald BACHMANN	16/02/2010	11/12/2016	16/08/2018	44,475
9.		11535/10	Heinz CERAJEWSKI	12/02/2010	14/09/2016	04/01/2019	810.85
10.		31892/10	Lothar Manfred ROLLENHAGEN	18/05/2010	24/04/2011	16/08/2018	32,098.73
11.	32884/10	Roland WURST	07/05/2010	25/08/2011	16/08/2018	4,052.02
12.	37127/10	Ilse Erna OLBRICH	20/05/2010	02/04/2017	16/08/2018	8,565.90
13.	37371/10	Erich THALER	20/05/2010	21/09/2010	23/09/2016	2,668.18
14.	27710/10	Horst VENIER FRISCHMANN	02/04/2010	15/08/2014	11/08/2020	8,840.90
15.	20805/10	Bernd Ullrich TRENCZEK	20/03/2010	03/08/2012	02/07/2020	15,666.41
16.	27665/10	Irmgard Anna NIEDERGALL	02/04/2010	04/03/2013	28/09/2020	1,134.34
17.	21519/10	Richard Gustav August SCHEELE	31/03/2010	14/01/2014	11/03/2021	42,163.63
18.	8113/10	Ingrid DITTMANN	27/01/2010	14/01/2012	16/08/2018	2,909.84
19.	37357/10	Siegfried NEUGEBAUER	20/05/2010	24/02/2011	18/12/2020	25,393.93
20.	16234/10	Hans-Peter HACKER	10/02/2010	15/09/2011	16/08/2018	11,489.64
21.	35857/10	Turgut METİN	02/04/2010	16/05/2015	08/06/2020	8,517.17
22.	32366/10	Werner Jakob SCHNEIDER	07/05/2010	12/09/2017	16/08/2018	20,355.80
23.	38992/10	Claudia FORSTER	25/06/2010	10/04/2016	16/09/2018	6,533.08
24.	27751/10	Arno WUFF	19/04/2010	05/03/2017	18/09/2020	2,128.28
25.	39011/10	Josef MEISE	23/06/2010	03/04/2016	16/09/2019	129,269.94
26.	27683/10	Klaus Hermann Kurt STEURLEIN	31/03/2010	04/06/2011	02/12/2020	11,127.02

APPENDIX 3

Applications where certificates of inheritance or a certificate of representation were not submitted

No.	Application no.	Applicant name	Date of application	Date of death	Date of the submission
1.	27735/10	Holger Gerhard WENTZ	01/04/2010	The representative informed the Court of the applicant’s death (No information on the date of death was provided)	02/12/2020
2.	37791/10	Andreas MULLER	03/06/2010	The representative informed the Court of the applicant’s death (No information on the date of death was provided)	02/12/2020
3.	11769/10	Klaus Richard Heinrich BOLDT	21/01/2010	The representative informed the Court of the applicant’s death (No information on the date of death was provided)	02/12/2020
4.	22133/10	Arnold Philipp LINDEMANN	20/03/2010	The representative informed the Court of the applicant’s death (No information on the date of death was provided)	10/04/2017