{"id":21131,"date":"2023-09-12T11:53:41","date_gmt":"2023-09-12T11:53:41","guid":{"rendered":"https:\/\/laweuro.com\/?p=21131"},"modified":"2023-09-12T11:53:41","modified_gmt":"2023-09-12T11:53:41","slug":"case-of-kabar-v-turkey-38597-14","status":"publish","type":"post","link":"https:\/\/laweuro.com\/?p=21131","title":{"rendered":"CASE OF KABAR v. TURKEY – 38597\/14"},"content":{"rendered":"

SECOND SECTION
\nCASE OF KABAR v. TURKEY<\/strong>
\n(Application no. 38597\/14)<\/em>
\nJUDGMENT
\n(Revision)
\nSTRASBOURG
\n12 September 2023<\/p>\n

This judgment is final but it may be subject to editorial revision.<\/p>\n

In the case of Kabar v. Turkey (request for revision of the judgment of 28 June 2022),<\/strong><\/p>\n

The European Court of Human Rights (Second Section), sitting as a Committee composed of:
\nEgidijus K\u016bris, President,
\nPauliine Koskelo,
\nGilberto Felici, judges,
\nand Dorothee von Arnim, Deputy Section Registrar,
\nHaving deliberated in private on 11 July 2023,<\/p>\n

Delivers the following judgment, which was adopted on that date:<\/p>\n

PROCEDURE<\/p>\n

1. The case originated in an application (no. 38597\/14) against the Republic of T\u00fcrkiye lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) on 12 May 2014 by three Turkish nationals, whose relevant details are set out in the appended table (\u201cthe applicants\u201d) and who were represented at the time by Mr \u00d6.Y. Bi\u00e7en, a lawyer practising in Diyarbak\u0131r.<\/p>\n

2. In a judgment delivered on 28 June 2022, the Court held that there had been a violation of Article 6 \u00a7 1 of the Convention on account of the breach of the principle of equality of arms in the proceedings before the Hazro Cadastral Court in respect of the second and third applicants (Abdulkerim Kabar and Fadli Kabar). It further decided to strike out the part of the application in so far as it concerned the first applicant, Abdulaziz Kabar. The Court also decided to award the second and third applicants jointly 2,000\u00a0euros (EUR) for non-pecuniary damage and dismissed the remainder of the claims for just satisfaction.<\/p>\n

3. On 24 January 2023 the Government informed the Court that they had learned on 12 October 2022 that the third applicant had died on 24\u00a0November 2018. They accordingly requested revision of the judgment within the meaning of Rule 80 of the Rules of Court.<\/p>\n

4. On 14 March 2023 the Court considered the request for revision and decided to give the applicants\u2019 representative six weeks in which to submit any observations. On 10 April 2023 the applicants\u2019 representative informed the Court that he no longer represented the applicants. With a letter received on 17 April 2014, a new representative (Mr M. \u015eahin, a lawyer practising in Diyarbak\u0131r), who had been appointed by the third applicant\u2019s heirs, confirmed the third applicant\u2019s death and requested that the Court award his heirs the just satisfaction amount, submitting a certificate of inheritance.<\/p>\n

THE LAW<\/strong><\/p>\n

THE REQUEST FOR REVISION<\/strong><\/p>\n

5. The Government requested revision of the judgment of 28\u00a0June 2022, which they had been unable to execute because the third applicant had died before the judgment had been adopted. They noted that that applicant\u2019s next of kin had failed to inform the Court of the applicant\u2019s demise and to provide a plausible explanation for their failure to do so. They therefore asked the Court to strike the application out of the list in so far as it concerns the third applicant.<\/p>\n

6. The newly appointed representative submitted that the third applicant\u2019s heirs should receive the sum awarded to the deceased. He did not point to any circumstance that had prevented the heirs from being able to inform the Court earlier about that applicant\u2019s death.<\/p>\n

7. The Court notes from the certificate of inheritance document submitted to it that the third applicant died a widow on 24 November 2018 and he is survived by his eight children who are his legal heirs. Be that as it may, the Court notes from the case material that in 2020, after the communication of the application to the Government, the applicants\u2019 representative at the time was invited to provide their observations on the case. In his observations submitted to the Court on 2 October 2020, he informed the Court of the death of the first applicant, but confirmed that the remaining applicants maintained their applications and requested that the Court award them just satisfaction.<\/p>\n

8. The Court considers that the third applicant\u2019s death constitutes \u201cthe discovery of a fact … which, when [the] judgment was delivered, was unknown to the Court\u201d (Rule 80 \u00a7 1). It also constitutes a fact of \u201cdecisive influence\u201d on the outcome of the judgment within the meaning of that Rule, namely the allocation of the amount awarded under Article 41 of the Convention. The Court accepts that this decisive fact, which was unknown to it, \u201ccould not reasonably have been known\u201d to the Government, which became aware of the third applicant\u2019s death in October 2022 (compare also Manushaqe Puto and Others v. Albania (revision), nos. 604\/07 and 3 others, \u00a7\u00a7\u00a09-10, 4 November 2014). They filed a request for a revision of the judgment on 24 January 2023, that is, within the six-month time-limit provided for in Rule 80.<\/p>\n

9. The Court considers that the judgment of 28\u00a0June 2022 should be revised pursuant to Rule 80 of the Rules of Court, the relevant parts of which provide:<\/p>\n

\u201c1. 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.<\/p>\n

…\u201d<\/p>\n

10. The Court reiterates that it has been its practice to strike applications out of the list of cases under Article 37 \u00a7 1 of the Convention in the absence of any heir or close relative who has expressed in a timely manner a wish to pursue the application, without providing an explanation for such failure (see\u00a0Cacuci and S.C. Virra & Cont Pad S.R.L. v. Romania (revision), no.\u00a027153\/07, \u00a7\u00a7 6-11, 13 November 2018; Association of Victims of Romanian Judges and Others v. Romania (revision), no. 47732\/06, \u00a7\u00a7\u00a09-11, 22\u00a0March 2016; and Gabay v. Turkey (revision), no. 70829\/01, \u00a7\u00a7\u00a06-9, 27\u00a0June 2006). The Court sees no reason to depart from this approach in the present case, taking into account that the third applicant\u2019s death had occurred approximately three and a half years before the date of the Court\u2019s judgment, and noting that neither his representative at the time nor his heirs provided any valid reason for not being able to inform the Court earlier about the applicant\u2019s death (see, by contrast, Nicolae Augustin R\u0103dulescu v.\u00a0Romania (revision), no. 17295\/10, \u00a7 9, 19 May 2015). The Court further notes that in 2020, when invited to comment on the case, the representative provided no information about the third applicant\u2019s death and any of his next of kin\u2019s wish to maintain the case, at that stage or later (see paragraph 7 above). The Court further finds no special circumstances relating to respect for human rights as defined in the Convention and its Protocols which require it to continue the examination of the present application in respect of the third applicant (see Article\u00a037\u00a0\u00a7\u00a01 in fine and compare also Cacuci and S.C. Virra & Cont Pad S.R.L. v.\u00a0Romania (revision), cited above, \u00a7 10).<\/p>\n

11. Accordingly, the application in so far as it relates to the third applicant should be struck out of the Court\u2019s list of cases in accordance with Article\u00a037\u00a0\u00a7\u00a01 of the Convention.<\/p>\n

12. In respect of the second applicant, the Court decides that the just satisfaction award, namely EUR 2,000 originally awarded jointly to both the second and third applicants has to be paid to the second applicant only.<\/p>\n

13. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.<\/p>\n

FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/strong><\/p>\n

1. Decides to revise its judgment of 28\u00a0June 2022<\/p>\n

and, accordingly:<\/p>\n

2. Decides to strike the application out of its list of cases in so far as it concerns the third applicant (Mr Fadli Kabar);<\/p>\n

3. Holds<\/p>\n

(a) that the respondent State is to pay to the second applicant (Mr\u00a0Abdulkerim Kabar), within three months, EUR 2,000 (two thousand euros) in respect of non-pecuniary damage, 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;<\/p>\n

4. (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.<\/p>\n

Done in English, and notified in writing on 12 September 2023, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.<\/p>\n

Dorothee von Arnim\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Egidijus K\u016bris
\nDeputy Registrar \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0\u00a0 President<\/p>\n

____________<\/p>\n

APPENDIX<\/strong><\/p>\n

List of applicants:<\/p>\n\n\n\n\n\n\n\n
No.<\/strong><\/td>\nApplicant\u2019s Name<\/strong><\/td>\nYear of birth<\/strong><\/td>\nNationality<\/strong><\/td>\nPlace of residence<\/strong><\/td>\n<\/tr>\n<\/thead>\n
1.<\/td>\nAbdulaziz KABAR<\/td>\n1932<\/td>\nTurkish<\/td>\nDiyarbak\u0131r<\/td>\n<\/tr>\n
2.<\/td>\nAbdulkerim KABAR<\/td>\n1953<\/td>\nTurkish<\/td>\nDiyarbak\u0131r<\/td>\n<\/tr>\n
3.<\/td>\nFadli KABAR<\/td>\n1956<\/td>\nTurkish<\/td>\nDiyarbak\u0131r<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n