Last Updated on October 3, 2020 by LawEuro
SECOND SECTION
DECISION
Application no. 55099/12
Alya OĞUR
against Turkey
The European Court of Human Rights (Second Section), sitting on 18 December 2018 as a Committee composed of:
Ledi Bianku, President,
Jon Fridrik Kjølbro,
Ivana Jelić, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above application lodged on 25 June 2012,
Having regard to the declaration submitted by the respondent Government on 8 May 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, Ms Alya Oğur, is a Turkish national, who was born in 1955 and lives in Şırnak. She was represented before the Court by Mr Can Kayhan, a lawyer practising in Ankara.
2. The Turkish Government (“the Government”) were represented by their Agent.
3. On 3 February 2006 the applicant’s husband was shot and killed in the course of a disturbance in his village. A number of village guards, who had fired their weapons during the incident, were indicted for the killing but were subsequently acquitted for lack of evidence to prove that they had shot the applicant’s husband. After the end of the trial, on 2 July 2012 a continuous search order was issued by the prosecutor to keep the investigation open until expiry of the statute of limitations in order to find the perpetrator.
4. The application had been communicated to the Government.
THE LAW
5. The applicant complained under Article 2 of the Convention that her husband had been killed when fire was opened by the village guards, and alleged that the investigation into the killing had been ineffective.
6. After the failure of attempts to reach a friendly settlement, by a letter of 8 May 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 the Republic of Turkey offer to pay to the applicant, Alya OĞUR, the amount of EUR 67,000 (sixty seven thousand euros) jointly, to cover any pecuniary and non-pecuniary damage, plus any tax that may be chargeable to the applicants, with a view to securing the settlement of the above-mentioned case pending before the European Court of Human Rights by unilateral declaration.
The Government regret the occurrence of the actions which have led to the bringing of the present application, in particular the death of the applicant’s relative and the anguish caused to his family. The Government acknowledge that the investigation conducted into the death of the applicant’s relative did not meet the standards enshrined in Article 2 of the Convention. The Government undertake to adopt all necessary measures to ensure that the effectiveness of the investigations into allegations of violation of the right to life – including the obligation to carry out effective investigations – is respected in the future.
These sums will be converted into Turkish liras 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 these sums within the said three-month period, the Government undertake to pay simple interest on them, 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.”
7. By a letter of 15 August 2018, the applicant indicated that she was not satisfied with the terms of the unilateral declaration on the ground that no effective or serious investigation had been conducted into the killing and that the amount proposed by the Government was far from adequate to compensate the damages she and her young children had suffered.
8. 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”.
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; see also Jeronovičs v. Latvia [GC], no. 44898/10, 5 July 2016).
11. The Court has reiterated in a number of cases, including in cases brought against Turkey, the obligation under Article 2 of the Convention to carry out an effective investigation when individuals have been killed as a result of the use of force (see, inter alia, Mustafa Tunç and Fecire Tunçv. Turkey [GC], no. 24014/05, § 169, 14 April 2015 and the case cited therein).
12. 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 (Article 37 § 1 (c)). The Court stresses that its decision is without prejudice to the possibility for the applicants to exercise any other available remedies in order to obtain redress (see Jeronovičs v. Latvia (dec.), no. 547/02, § 54, 10 February 2009, and, mutatis mutandis, Jeronovičs, cited above, §§ 116-118). In this connection the Court notes that the investigation into the killing of the applicant’s husband is still open (see paragraph 3 above).
13. In the light of the foregoing, 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).
14. 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).
15. 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 2 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 24 January 2019.
Hasan Bakırcı Ledi Bianku
Deputy Registrar President
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