SECOND SECTION
\nDECISION<\/p>\n
Application no. 53105\/09
\nFatih Ergin ARPA\u00c7
\nagainst Turkey<\/p>\n
The European Court of Human Rights (Second Section), sitting on 19\u00a0March 2019 as a Committee composed of:<\/p>\n
Julia Laffranque, President,
\nSt\u00e9phanie Mourou-Vikstr\u00f6m,
\nArnfinn B\u00e5rdsen, judges,
\nand Hasan Bak\u0131rc\u0131, DeputySection Registrar,<\/p>\n
Having regard to the above application lodged on 24 September 2009,<\/p>\n
Having regard to the declaration submitted by the respondent Government on 6 September 2018 requesting the Court to strike the application out of the list of cases,<\/p>\n
Having deliberated, decides as follows:<\/p>\n
FACTS AND PROCEDURE<\/strong><\/p>\n 1.\u00a0\u00a0The applicant, MrFatihErginArpa\u00e7, is a Turkish national, who was born in 1985 and lives in Tekirda\u011f. He was represented before the Court by Mr A. Pehlivan, a lawyer practicing in Istanbul.<\/p>\n 2.\u00a0\u00a0The Turkish Government (\u201cthe Government\u201d) were represented by their Agent.<\/p>\n 3.\u00a0\u00a0The applicant complained under Article 6 of the Convention that he had been deprived of legal assistance when making statements to the public prosecutor and the investigating judge.<\/p>\n 4.\u00a0\u00a0The application had been communicated to the Government.<\/p>\n THE LAW<\/strong><\/p>\n 5.\u00a0\u00a0The applicant complained under Article 6 \u00a7\u00a7 1 and 3 (c) of the Convention about the denial of access to a lawyer when his statements had been taken by the public prosecutor and the investigating judge respectively.<\/p>\n 6.\u00a0\u00a0After the failure of attempts to reach a friendly settlement, by a letter of 6 September 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.<\/p>\n The declaration provided as follows:<\/p>\n \u201cThe Government of Turkey acknowledge that in the present case there has been a violation of the applicant\u2019s rights under Articles 6 \u00a7\u00a7 1 and 3 of the Convention in the light of the well-established case-law of the Court.<\/p>\n The Government also recalls that Law no. 4928 on 15 July 2003 repealed the provision concerning the systemic restriction on the right of access to a lawyer.<\/p>\n The Government further emphasises that Article 311 \u00a7 1 (f) of the Code on Criminal Procedure, as amended by Law no.7145 of 31 July 2018, now requires reopening of criminal proceedings in cases where the European Court of Human Rights decides to strike an application out of its list of cases following a friendly settlement or a unilateral declaration. The Government considers that the aforementioned remedy is capable of providing redress in respect of the applicant\u2019s complaints under Article 6 of the Convention.<\/p>\n The Government thus offer to pay the applicant, FatihErginArpa\u00e7, EUR 500 (five hundred euros) to cover any pecuniary and non-pecuniary damage as well as costs and expenses, plus any tax that may be chargeable to the applicant with a view to resolving the above-mentioned case pending before the European Court of Human Rights.<\/p>\n This sum 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 by the Court pursuant to Article 37 \u00a7 1 of the European Convention on Human Rights. 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.\u201d<\/p>\n 7.\u00a0\u00a0The applicant was sent the terms of the Government\u2019s unilateral declaration several weeks before the date of this decision. The Court has not received a response either from the applicant or his representative accepting the terms of the declarations. As the subject matter of the present application concerns criminal proceedings under which the applicant was convicted, the Court cannot treat the applicant\u2019s silence on this matter as a tacit approval of the terms of the declaration. (compare, in respect of civil proceedings, Igranov and Others v. Russia, nos. 42399\/13 and 8\u00a0others<\/a>, \u00a7\u00a023, 20 March 2018).<\/p>\n 8.\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 \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 9.\u00a0\u00a0It also reiterates that in certain circumstances, it may strike out an application under Article 37 \u00a7 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.<\/p>\n 10.\u00a0\u00a0To this end, the Court has examined the declaration in 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; WAZA Sp. z o.o. v. Poland (dec.), no.\u00a011602\/02, 26 June 2007; and Sulwi\u0144ska v. Poland (dec.), no.\u00a028953\/03, 18\u00a0September 2007).<\/p>\n 11.\u00a0\u00a0The Court has established in a number of cases, including those brought against Turkey, its practice concerning complaints about the systemic denial of legal assistance and the use of evidence obtained in the absence of a lawyer to convict the applicants (see, among others, Beuze v. Belgium [GC], no. 71409\/10<\/a>, 9 November 2018; Mehmet Duman v. Turkey, no. 38740\/09, 23 October 2018; \u00d6merG\u00fcner v.\u00a0Turkey, no.\u00a028338\/07<\/a>, 4 September 2018; Giri\u015fen v. Turkey, no.\u00a053567\/07<\/a>, 13\u00a0March 2018; Can\u015fad and Others v. Turkey, no. 7851\/05<\/a>, 13 March 2018; \u0130zzet\u00c7elik v. Turkey, no. 15185\/05<\/a>, 23 January 2018; and BayramKo\u00e7 v.\u00a0Turkey, no. 38907\/09, 5\u00a0September 2017).<\/p>\n 12.\u00a0\u00a0In the above cases, the Court, without examining whether the systematic nature of the restriction on the applicant\u2019s right of access to a lawyer was, in itself, sufficient to find a violation of Article 6 \u00a7\u00a7 1 and\u00a03\u00a0(c) of the Convention, held that the use by the trial court of the applicant\u2019s statements to the police without examining their admissibility and the Court of Cassation\u2019s subsequent failure to remedy that shortcoming had constituted a violation of that article. Moreover, in all of the above cases, the Court considered that the finding of a violation of Article 6 \u00a7\u00a7\u00a01 and\u00a03\u00a0(c) of the Convention had constituted sufficient just satisfaction for the non-pecuniary damage sustained by the applicants.<\/p>\n 13.\u00a0\u00a0The Court further observes that the Government have explicitly acknowledged in their unilateral declaration a violation of Article 6 \u00a7\u00a7\u00a01 and\u00a03 of the Convention.<\/p>\n 14.\u00a0\u00a0At this juncture, it is also important to note that the legal provisions from which the issue of systemic restriction on the right to lawyer stemmed had been repealed by Law no. 4928 of 15 July 2003 (see further, Salduz, cited above, \u00a7\u00a7 27-31) and that a new Code of Criminal Procedure (Law no.\u00a05271) entered into force on 1 June 2005 in which no systemic restriction on the right of access to a lawyer is provided for.<\/p>\n 15.\u00a0\u00a0The Court further notes that up until 31 July 2018, sub paragraph\u00a0(f) of Article 311 \u00a7 1 of Code of Criminal Procedure provided the applicants with a remedy entailing the possibility of the reopening of the criminal proceedings only on the basis of a judgment of the Court finding a violation of the Convention or 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 the Court\u2019s decision 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 \u00a7 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 (see, by contrast, Igranov and Others v.\u00a0Russia, nos. 42399\/13 and 8 others<\/a>, \u00a7 26, 20 March 2018, with further references therein, and compare Sroka v. Poland (dec.), no.\u00a042801\/07, 6\u00a0March 2012).<\/p>\n 16.\u00a0\u00a0In that connection, it further points out that according to the Court\u2019s case-law and practice, the re-opening 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\u2019s complaints under Article 6 of the Convention. Bearing in mind the Court\u2019s subsidiary role in protecting the rights and freedoms guaranteed by the Convention and its protocols, it is recalled that it falls in the first place to the national authorities to redress any violation of the Convention.<\/p>\n 17.\u00a0\u00a0Having regard to the nature of the admissions contained in the Government\u2019s declaration, as well as the amount of compensation proposed \u2013\u00a0which is commensurate with the amounts awarded in similar cases\u00a0\u2013 the Court considers that it is no longer justified to continue the examination of the application (Article 37 \u00a7 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 Jeronovi\u010ds v. Latvia [GC], no. 44898\/10, \u00a7\u00a7\u00a0116-118, 5 July 2016).<\/p>\n 18.\u00a0\u00a0Moreover, 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\u00a037 \u00a7 1 in fine).<\/p>\n 19.\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 37 \u00a7 2 of the Convention (Josipovi\u0107 v. Serbia (dec.), no. 18369\/07, 4 March 2008).<\/p>\n 20.\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 6 \u00a7\u00a7 1 and 3 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 \u00a7 1 (c) of the Convention.<\/p>\n Done in English and notified in writing on 11 April 2019.<\/p>\n Hasan Bak\u0131rc\u0131\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 Julia Laffranque
\nDeputy Registrar\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