Last Updated on April 27, 2019 by LawEuro
SECOND SECTION
DECISION
Application no. 23640/12
Onur DİRİK
against Turkey
The European Court of Human Rights (Second Section), sitting on 19 March 2019 as a Committee composed of:
ValeriuGriţco, President,
Ivana Jelić,
Darian Pavli, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above application lodged on 16 March 2012,
Having regard to the declaration submitted by the respondent Government on 21 November 2018 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, Mr Onur Dirik, is a Turkish national, who was born in 1966 and lives in Ankara. He was represented before the Court by Mr L. Türkoğlu, a lawyer practising in Ankara.
2. The Turkish Government (“the Government”) were represented by their Agent.
3. The applicant was an officer in the Army. On 29 May 2009 the Van military public prosecutor filed an indictment against him, accusing him of insubordination for having breached military rules. On 22 June 2010 the Van Military Criminal Court convicted him as charged and sentenced him to two years and eleven months’ imprisonment. On 20 September 2011 the Military Court of Cassation upheld the judgment of the first instance court.
4. The application had been communicated to the Government.
THE LAW
5. The applicant complained about the independence and impartiality of the Military Criminal Court which had tried and convicted him. He relied on Article 6 of the Convention.
6. After the failure of attempts to reach a friendly settlement, by a letter of 21 November 2018 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.
The declaration provided as follows:
“I declare that the Government of Turkey offer to pay the applicant, Mr Onur DİRİK, EUR 500 (five hundred euros) to cover any pecuniary and non-pecuniary damage and any cost and expenses, 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. In 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. They 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 acknowledge 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 (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 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. 6771, military criminal courts have been abolished. Moreover, following the adoption of Law 7145, Article 311 § 1 (f) of the Criminal Procedure Code has been amended and an applicant may request the re-opening of his case if the European Court of Human Rights decides to strike out an application following friendly settlement or a unilateral declaration.”
By a letter received on 9 January 2019, the applicant indicated that he was not satisfied with the terms of the unilateral declaration.
The Court reiterates that Article 37 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.”
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.
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, 26 June 2007; and Sulwińska v. Poland (dec.), no. 28953/03, 18 September 2007).
The Court has established in a number of cases, including those brought against Turkey, its practice concerning complaints about the violation of the independence and impartiality of the Military Criminal Court (for example,Gürkan v. Turkey, no. 10987/10, 3 July 2012).
Having regard to the nature of the admissions contained in the Government’s declaration, in particular the adoption of Law no. 7145, according to which an applicant may request the re-opening of his case if the European Court of Human Rights decides to strike out an application following friendly settlement or a unilateral 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 (Article 37 § 1 (c)).
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).
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).
In view of the above, it is appropriate to strike the case out of the list.
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.
Done in English and notified in writing on 11 April 2019.
Hasan Bakırcı Valeriu Griţco
Deputy Registrar President
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