Last Updated on October 3, 2020 by LawEuro
SECOND SECTION
DECISION
Application no. 4844/09
Hacı Ömer ŞAHİN
against Turkey
The European Court of Human Rights (Second Section), sitting on 8 October 2019 as a Committee composed of:
Julia Laffranque, President,
Ivana Jelić,
Arnfinn Bårdsen, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above application lodged on 19 January 2009,
Having regard to the declaration submitted by the respondent Government on 11 June 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, Mr Hacı Ömer Şahin, is a Turkish national, who was born in 1945 and lives in Ankara. He was represented before the Court by Mr S. Doğruer, 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 about the independence and impartiality of the General Staff Court on account of the presence of military officer on its bench. In the same vein, he also complained that as a civilian he had been tried by a military court composed exclusively of military personnel. The applicant further complained under Article 6 that he had not been guaranteed adequate time and facilities for the preparation of his defence against the public prosecutor’s opinion on the merits of the case submitted during the hearing held on 30 July 2008.
4. The application had been communicated to the Government under Article 6 § 1 and Article 6 § 3 (b) of the Convention.
THE LAW
5. After the failure of attempts to reach a friendly settlement, by a letter of 11 June 2019 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.
6. The declaration provided as follows:
“I declare that the Government of Turkey offer, by this unilateral declaration, to pay the applicant, Mr Hacı Ömer ŞAHİN, 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. 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 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. l0987/10, 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. 677l, military criminal courts have been abolished.”
7. By a letter of 4 July 2019, the applicant indicated that he was not satisfied with the terms of the unilateral declaration.
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 declaration in 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).
11. 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 (see, for example, Gürkan v. Turkey, no. 10987/10, 3 July 2012).
12. The Court observes that the Government have explicitly acknowledged in their unilateral declaration that the military court which had tried the applicant could not be considered to have been independent and impartial under Article 6 of the Convention.
13. It is also important to note that following a referendum held on 16 April 2017, Law no. 6771 was adopted and military criminal courts have been abolished.
14. The Court also 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, 6 March 2012).
15. 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.
16. 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)). 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).
17. 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).
18. 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 7 November 2019.
Hasan Bakırcı Julia Laffranque
Deputy Registrar President
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