SECOND SECTION
\nDECISION<\/p>\n
Application no. 42820\/07
\n\u00d6zg\u00fcr \u00d6ZTUN\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
Valeriu Gri\u0163co, President,
\nIvana Jeli\u0107,
\nDarian Pavli, judges,<\/p>\n
and Hasan Bak\u0131rc\u0131, Deputy Section Registrar,<\/p>\n
Having regard to the above application lodged on 20 September 2007,<\/p>\n
Having regard to the declaration submitted by the respondent Government on 21 November 2018 requesting the Court to strike the application out of the list of cases and the applicant\u2019s reply to that declaration,<\/p>\n
Having deliberated, decides as follows:<\/p>\n
FACTS AND PROCEDURE<\/strong><\/p>\n 1.\u00a0\u00a0The applicant, Mr\u00d6zg\u00fcr\u00d6ztun\u00e7, is a Turkish national, who was born in 1971 and lives in \u0130zmir. He was represented before the Court by Mr\u00a0 \u00d6.\u00a0\u00d6ztun\u00e7, a lawyer practising in Istanbul.<\/p>\n 2.\u00a0\u00a0The Turkish Government (\u201cthe Government\u201d) were represented by their Agent.<\/p>\n 3.\u00a0\u00a0At the time of the events, the applicant was serving as a military doctor in the army. On 9 August 2001 the applicant supervised the administration of meningitis vaccinations to military students and the following day one of the students died. Consequently, criminal proceedings were initiated against the applicant for committing involuntary manslaughter. On 9 November 2005 the applicant was convicted of misconduct and sentenced to ten months\u2019 imprisonment and a fine. The court then decided to suspend the sentence. On 29 May 2007 the Military Court of Cassation rejected the applicant\u2019s appeal.<\/p>\n 4.\u00a0\u00a0The application had been communicated to the Government.<\/p>\n THE LAW<\/strong><\/p>\n 5.\u00a0\u00a0The applicant complained about the independence and impartiality of the Military Criminal Court which had tried and convicted him. He relied on Article 6 of the Convention.<\/p>\n 6.\u00a0\u00a0After the failure of attempts to reach a friendly settlement, by a letter of 21 November 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 The declaration provided as follows:<\/p>\n \u201cI declare that the Government of Turkey offer to pay the applicant, Mr\u00d6zg\u00fcr\u00d6ztun\u00e7, 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.<\/p>\n 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. They 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.<\/p>\n The Government acknowledge that 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 (G\u00fcrkan v. Turkey, no. l0987\/10, 3 July 2012).<\/p>\n The Government also state that the subject matter of the violation found in the case of G\u00fcrkan v. Turkey was solved by the amendment made on Law no. 353 by the Law\u00a0no. 6000 entered into force on 30 July 2010. The Government further note that by Law no. 677l, military criminal courts have been abolished. Moreover, following the adoption of Law 7145, Article 3 l 1 \u00a7 1 (f) of the Criminal Procedure Code has been amended and an applicant may request the re-opening of his case if the European Court of Human Rights decides to strike out an application following friendly settlement or a unilateral declaration.\u201d<\/p>\n 7.\u00a0\u00a0By a letter of 3 January 2019, the applicant indicated that he was not satisfied with the terms of the unilateral declaration.<\/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\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 9.\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 10.\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 (TahsinAcar 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\u00a0June\u00a02007; and Sulwi\u0144ska v. Poland (dec.), no.\u00a028953\/03, 18\u00a0September\u00a02007).<\/p>\n 11.\u00a0\u00a0The 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 (for example,G\u00fcrkan v. Turkey, no. 10987\/10, 3 July 2012).<\/p>\n 12.\u00a0\u00a0Having regard to the nature of the admissions contained in the Government\u2019s declaration, in particular the adoption of Law 7145, according to which an applicant may request the re-opening of his case if the European Court of Human Rights decides to strike out an application following friendly settlement or a unilateral 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)).<\/p>\n 13.\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 37 \u00a7 1 in fine).<\/p>\n 14.\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 15.\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 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 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\u00a0\u00a0 ValeriuGri\u0163co
\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