SECOND SECTION
\nDECISION<\/p>\n
Application no. 18357\/11
\nG\u00fclseren KUTLU and others
\nagainst Turkey<\/p>\n
The European Court of Human Rights (Second Section), sitting on 12\u00a0March 2019 as a Chamber composed of:<\/p>\n
Robert Spano, President,
\nPaul Lemmens,
\nI\u015f\u0131lKaraka\u015f,<\/p>\n
Julia Laffranque,
\nValeriuGri\u0163co,
\nJon FridrikKj\u00f8lbro,
\nSt\u00e9phanieMourou-Vikstr\u00f6m,judges,<\/p>\n
andStanley Naismith, Section Registrar,<\/p>\n
Having regard to the above application lodged on 6 December 2010,<\/p>\n
Having regard to the declaration submitted by the respondent Government on 30 January 2018 requesting the Court to strike the application out of the list of cases and the applicants\u2019 reply to that declaration,<\/p>\n
Having deliberated, decides as follows:<\/p>\n
FACTS AND PROCEDURE<\/strong><\/p>\n 1.\u00a0\u00a0A list of the applicants is set out in the appendix.<\/p>\n 2.\u00a0\u00a0The Turkish Government (\u201cthe Government\u201d) were represented by their Agent.<\/p>\n 3.\u00a0\u00a0The first applicant\u2019s husband and the remaining three applicants\u2019 father MiktatKutlu was arrested and placed in police custody on 18 April 1992. The following day he was taken to the accident and emergency department of the Diyarbak\u0131r State Hospital. Despite the doctors\u2019 attempts, he died at the hospital the same day. According to the autopsy report, MikdatKutlu\u2019s death was caused by intracranial bleeding caused by head trauma; his skull had been fractured and there were lesions and ecchymosed areas on his body.<\/p>\n 4.\u00a0\u00a0A number of police officers put on trial in connection with the killing were acquitted on 4 October 2011 by the Diyarbak\u0131r Assize Court on the grounds that there were uncertainties about the identities of the perpetrators and the circumstances in which the head trauma had been caused. An appeal lodged by the applicants against the acquittals was rejected by the Court of Cassation on 8 May 2013.<\/p>\n 5.\u00a0\u00a0The trial court also ordered in its judgment of 4 October 2011 that the prosecutor should be informed of the acquittal so that he or she can take action to find the real perpetrators. However, the parties have not informed the Court whether such an investigation has been opened.<\/p>\n 6.\u00a0\u00a0The application had been communicated to the Government.<\/p>\n THE LAW<\/strong><\/p>\n 7.\u00a0\u00a0The applicants alleged under Article, inter alia, 2 of the Convention that their close relative MikdatKutlu had been killed as a result of the ill-treatment to which he had been subjected in police custody and also complained that the investigation into the death had not been effective.<\/p>\n 8.\u00a0\u00a0After the failure of attempts to reach a friendly settlement, by a letter of 30 January 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\u00a037 of the Convention.<\/p>\n 9.\u00a0\u00a0The declaration provided as follows:<\/p>\n \u201cThe Government regret the occurrence of individual cases of death in in police custody, as in the circumstances of the present case, notwithstanding existing Turkish legislation and the resolve of the Government to prevent such actions.<\/p>\n The Government admit that the treatment to which the applicants\u2019 relative was subjected and which resulted in his death and the investigation conducted into the circumstances surrounding the death, did not meet the standards enshrined in Article 2 of the Convention. The Government undertake to adopt all necessary measures to ensure that the right to life \u2013 including the obligation to carry out effective investigations \u2013 is respected in the future.<\/p>\n The Government of Turkey declare that they offer to pay jointly to the applicants G\u00fclserenKutlu, Berivan\u00c7elik, F\u0131ratKutlu and Muhammed Kutlu, with a view to securing an unilateral declaration of the above-mentioned case pending before the European Court of Human Rights, EUR 65,000 (sixty five thousand euros) to cover any and all non-pecuniary damage and costs and expenses, plus any tax that may be chargeable to the applicants.<\/p>\n 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.\u201d<\/p>\n 10.\u00a0\u00a0By a letter of 13 March 2018, the applicants indicated that they were not satisfied with the terms of the unilateral declaration.<\/p>\n 11.\u00a0\u00a0The Court reiterates that Article\u00a037 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\u00a037\u00a0\u00a7\u00a01\u00a0(c) enables the Court in particular to strike a case out of its list if:<\/p>\n \u201cfor any other reason established by the Court, it is no longer justified to continue the examination of the application\u201d.<\/p>\n 12.\u00a0\u00a0It also reiterates that in certain circumstances, it may strike out an application under Article\u00a037\u00a0\u00a7\u00a01\u00a0(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.<\/p>\n 13.\u00a0\u00a0To this end, the Court has examined the declarationin the light of the principles emerging from its case-law, in particular the TahsinAcar judgment (Tahsin Acar v. Turkey (preliminary objections) [GC], no.\u00a026307\/95, \u00a7\u00a7 75-77, ECHR 2003-VI; see also Jeronovi\u010ds v. Latvia [GC], no. 44898\/10, 5 July 2016).<\/p>\n 14.\u00a0\u00a0The Court notes that the subject matter of the present application concerns, firstly, the Member States\u2019 obligation to protect the right to life which also includes, insofar as relevant to the circumstances of\u00a0 the present application, the requirement to protect persons in custody due to their vulnerable position (Salman v. Turkey [GC], no. 21986\/93, \u00a7 99, ECHR 2000\u2011VII). Secondly, the case concerns 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 Tun\u00e7 and FecireTun\u00e7v. Turkey [GC], no. 24014\/05, \u00a7 169, 14 April 2015 and the case cited therein). In this connection, the Court has examined a large number of cases concerning the killing of individuals in police custodies and in prisons in Turkey in suspicious circumstances and the effectiveness of the investigations conducted into those killings (see, in particular, Salman, cited above; Abdurrahman Orak v.\u00a0Turkey, no.\u00a031889\/96, 14\u00a0February 2002; S\u00fcheyla Ayd\u0131n v. Turkey, no. 25660\/94, 24\u00a0May 2005; \u00c7elikbilek v. Turkey, no. 27693\/95, 31 May 2005; Ki\u015fmir v.\u00a0Turkey, no.\u00a027306\/95, 31 May 2005 and Yelden and Others v. Turkey, no.\u00a016850\/09, 3\u00a0May 2012).<\/p>\n 15.\u00a0\u00a0Having regard to the nature of the admissions contained in the Government\u2019s declaration, as well as the amount of compensation proposed \u2013 which is consistent with the amounts awarded in similar cases \u2013 the Court considers that it is no longer justified to continue the examination of the application (Article\u00a037\u00a0\u00a7\u00a01\u00a0(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 Jeronovi\u010ds v. Latvia (dec.), no. 547\/02, \u00a7 54, 10 February 2009, and, mutatis mutandis, Jeronovi\u010ds, citedabove, \u00a7\u00a7 116-118).<\/p>\n 16.\u00a0\u00a0In this connection the Court notes that section 172 of the Code of Criminal Procedure was amended in July 2018. According to the amendment, applicants in Turkey now have the opportunity to ask the relevant prosecutors to reopen the investigations into the deaths of their relatives not only in cases in which the Court has found a violation of the Convention on account of a failure to carry out an effective investigation, but also if their applications have been struck out by the Court on the basis friendly settlements or on the basis of unilateral declarations submitted by the Government.<\/p>\n 17.\u00a0\u00a0The Court notes that, as mentioned above (see paragraph 5), the trial court ordered in its judgment that the prosecutor should be informed of the police officers\u2019 acquittal so that he or she may take action to find the real perpetrators responsible for the killing of the applicants\u2019 relative.<\/p>\n 18.\u00a0\u00a0Although the parties have not informed the Court whether a new investigation has been opened to find the perpetrators, the Court considers that it is possible for the applicants, if they so wish, to request the prosecutor to open a new investigation in accordance with the above-mentioned legislative amendment (see paragraph 16).<\/p>\n 19.\u00a0\u00a0In light of the above considerations, and in particular given the clear and extensive case-law on the topic referred to above, 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 \u00a7 1 in fine).<\/p>\n 20.\u00a0\u00a0Finally, 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\u00a037 \u00a7 2 of the Convention (Josipovi\u0107 v. Serbia (dec.), no. 18369\/07, 4\u00a0March 2008).<\/p>\n 21.\u00a0\u00a0In view of the above, it is appropriate to strike the case out of the list.<\/p>\n For these reasons, the Court, unanimously,<\/p>\n Takes note of the terms of the respondent Government\u2019s declaration under Article 2 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;<\/p>\n Decides to strike the application out of its list of cases in accordance with Article\u00a037\u00a0\u00a7\u00a01\u00a0(c) of the Convention.<\/p>\n Done in English and notified in writing on 4 April 2019.<\/p>\n Stanley Naismith\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Robert Spano <\/p>\n Appendix<\/p>\n
\nRegistrar\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n\n\n
\n No.<\/strong><\/td>\n Firstname LASTNAME<\/strong><\/td>\n Birth year<\/strong><\/td>\n Nationality<\/strong><\/td>\n Place of residence<\/strong><\/td>\n Representative<\/strong><\/td>\n<\/tr>\n<\/thead>\n\n \n 1.<\/strong><\/td>\n G\u00fclseren KUTLU<\/td>\n 1961<\/td>\n Turkish<\/td>\n Diyarbak\u0131r<\/td>\n A. \u00c7a\u011fer<\/td>\n<\/tr>\n \n 2.<\/strong>\u00a0<\/strong><\/td>\n Berivan \u00c7EL\u0130K<\/td>\n 1981<\/td>\n Turkish<\/td>\n Diyarbak\u0131r<\/td>\n A. \u00c7a\u011fer<\/td>\n<\/tr>\n \n 3.<\/strong>\u00a0<\/strong><\/td>\n F\u0131rat KUTLU<\/td>\n 1983<\/td>\n Turkish<\/td>\n Diyarbak\u0131r<\/td>\n A. \u00c7a\u011fer<\/td>\n<\/tr>\n \n 4.<\/strong>\u00a0<\/strong><\/td>\n Muhammed KUTLU<\/td>\n 1986<\/td>\n Turkish<\/td>\n Diyarbak\u0131r<\/td>\n A. \u00c7a\u011fer<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n