SECOND SECTION
\nDECISION<\/p>\n
Application no.58175\/10
\n\u0130hsan \u015eEKER and Others
\nagainst Turkey<\/p>\n
The European Court of Human Rights (Second Section), sitting on 18\u00a0December 2018 as a Committee composed of:<\/p>\n
Ledi Bianku, President,
\nJon FridrikKj\u00f8lbro,
\nIvana Jeli\u0107, judges,<\/p>\n
and Hasan Bak\u0131rc\u0131, Deputy Section Registrar,<\/p>\n
Having regard to the above application lodged on 7 July 2010,<\/p>\n
Having regard to the declaration submitted by the respondent Government on 3 October 2017 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<\/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.\u00a0On 27\u00a0April 2009\u00a0the first two applicants\u2019 son and the remaining applicants\u2019 brother Mazlum\u015eeker, who was 16 years old at the time, was walking on the street near a building in which an armed operation was being conducted by members of the security forces. He was killed when he was hit by a bullet which emanated from the building in question. The prosecutor closed the investigation into the death on the ground that the bullet which killed him had been fired by a member of the illegal organisation from the open window of a flat and that all precautionary measures had been taken by the police officers to protect the lives of civilians.<\/p>\n
4.\u00a0\u00a0The application had been communicated to the Government.<\/p>\n
THE LAW<\/p>\n
5.\u00a0\u00a0The applicants complained under Article 2 of the Convention that their relative\u2019s death had been brought about by the authorities\u2019 failure to take precautions to avoid the risks to the lives of civilians while the armed operation was being conducted. Under the same provision they also argued that no effective investigation had been conducted by the national authorities into the killing.<\/p>\n
6.\u00a0\u00a0After the failure of attempts to reach a friendly settlement, by a letter of 3 October 2017 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
7.\u00a0\u00a0The declaration provided as follows:<\/p>\n
\u201cThe Government regret the occurrence of individual cases of death caused by failures to protect life, as in the circumstances of the present case, notwithstanding existing Turkish legislation and the resolve of the Government to prevent such failures.<\/p>\n
The Government admit that the applicants\u2019 relative\u2019s death resulting from the failure to provide protective measures and the investigation conducted into the death did not meet the standards enshrined in Article 2 of the Convention. The Government undertake to issue appropriate instructions and 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 \u0130hsan\u015eeker, S\u00fcrya\u015eeker, \u015eahideAky\u0131ld\u0131z, MaideOrbay, Hamdullah\u015eeker, Mustafa \u015eeker, Song\u00fcl\u00a0\u015eeker, Naide\u015eeker, Mehmet Selim \u015eeker, and Abdullah \u015eeker, with a view to securing a unilateral declaration of the above-mentioned case pending before the European Court of Human Rights, EUR 18,000 (eighteen thousand euros) to cover any non-pecuniary damage, plus any tax that may be chargeable and EUR 2,700 (two thousand seven hundred euros) to cover any and all 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
8.\u00a0\u00a0On 6 October 2017 the unilateral declaration was forwarded to the applicants who were invited to submit any comments which they may wish to make in reply by 3 November 2017. The applicants have not replied to that letter.<\/p>\n
9.\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
10.\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 applicants wish the examination of the case to be continued.<\/p>\n
11.\u00a0\u00a0To this end, the Court has examined the declarationin the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (Tahsin Acar v. Turkey (preliminary objections) [GC], no.\u00a026307\/95, \u00a7\u00a7 75-77, ECHR 2003-VI; see also Jeronovi\u010ds v.\u00a0Latvia [GC], no. 44898\/10, 5 July 2016).<\/p>\n
12.\u00a0\u00a0The Court notes that the subject matter of the present application concerns the Member States\u2019 obligation to take steps to protect the right to life. That obligation is clearly recognised and established in the Court\u2019s case-law and the Court has stressed in a number of cases, including those brought against Turkey, that the first sentence of Article 2 \u00a7 1 enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (L.C.B. v. the United Kingdom, 9 June 1998, \u00a7 36, Reports of Judgments and Decisions 1998\u2011III).<\/p>\n
13.\u00a0\u00a0Particularly relevant to the subject matter of the present application, the Court has also emphasised on many occasions that Article\u00a02 of the Convention imposes a duty to plan and control security operations in such a way to minimise to the greatest extent possible any risks of loss of life (see, in particular, McCann and Others v. the United Kingdom, 27\u00a0September 1995, \u00a7 194, Series A no. 324; see also Cang\u00f6z and Others v.\u00a0Turkey, no.\u00a07469\/06, \u00a7 106, 26 April 2016).<\/p>\n
14.\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 consistent 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)).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.\u00a0Latvia (dec.), no. 547\/02, \u00a7 54, 10 February 2009, and, mutatis mutandis, Jeronovi\u010ds, cited above, \u00a7\u00a7 116-118).<\/p>\n
15.\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. The Court notes that the investigation into the killing of the applicants\u2019 relative was also closed by a prosecutor (see paragraph\u00a03 above).<\/p>\n
16.\u00a0\u00a0In the light of the foregoing, and in particular given the clear and extensive case-law on the topic mentioned 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\u00a037\u00a0\u00a7\u00a01 in fine).<\/p>\n
17.\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\u00a0v.\u00a0Serbia (dec.), no. 18369\/07, 4 March 2008).<\/p>\n
18.\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 24 January 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\u00a0 Ledi Bianku
\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
<\/p>\n
APPENDIX<\/p>\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 | 1.\u00a0\u00a0\u00a0\u00a0\u00a0 <\/strong>\u00a0<\/strong><\/td>\n | \u0130hsan \u015eEKER<\/td>\n | 1963<\/td>\n | Turkish<\/td>\n | Istanbul<\/td>\n | Y. Varg\u00fcn<\/td>\n<\/tr>\n | 2.\u00a0\u00a0\u00a0\u00a0\u00a0 <\/strong>\u00a0<\/strong><\/td>\n | S\u00fcrya \u015eEKER<\/td>\n | 1967<\/td>\n | Turkish<\/td>\n | Istanbul<\/td>\n | Y. Varg\u00fcn<\/td>\n<\/tr>\n | 3.\u00a0\u00a0\u00a0\u00a0\u00a0 <\/strong>\u00a0<\/strong><\/td>\n | Maide ORBAY<\/td>\n | 1985<\/td>\n | Turkish<\/td>\n | Diyarbak\u0131r<\/td>\n | Y. Varg\u00fcn<\/td>\n<\/tr>\n | 4.\u00a0\u00a0\u00a0\u00a0\u00a0 <\/strong>\u00a0<\/strong><\/td>\n | Abdullah \u015eEKER<\/td>\n | 1999<\/td>\n | Turkish<\/td>\n | Istanbul<\/td>\n | Y. Varg\u00fcn<\/td>\n<\/tr>\n | 5.\u00a0\u00a0\u00a0\u00a0\u00a0 <\/strong>\u00a0<\/strong><\/td>\n | Hamdullah \u015eEKER<\/td>\n | 1987<\/td>\n | Turkish<\/td>\n | Istanbul<\/td>\n | Y. Varg\u00fcn<\/td>\n<\/tr>\n | 6.\u00a0\u00a0\u00a0\u00a0\u00a0 <\/strong>\u00a0<\/strong><\/td>\n | Mehmet Selim \u015eEKER<\/td>\n | 1997<\/td>\n | Turkish<\/td>\n | Istanbul<\/td>\n | Y. Varg\u00fcn<\/td>\n<\/tr>\n | 7.\u00a0\u00a0\u00a0\u00a0\u00a0 <\/strong>\u00a0<\/strong><\/td>\n | Mustafa \u015eEKER<\/td>\n | 1989<\/td>\n | Turkish<\/td>\n | Istanbul<\/td>\n | Y. Varg\u00fcn<\/td>\n<\/tr>\n | 8.\u00a0\u00a0\u00a0\u00a0\u00a0 <\/strong>\u00a0<\/strong><\/td>\n | Naide \u015eEKER<\/td>\n | 1994<\/td>\n | Turkish<\/td>\n | Istanbul<\/td>\n | Y. Varg\u00fcn<\/td>\n<\/tr>\n | 9.\u00a0\u00a0\u00a0\u00a0\u00a0 <\/strong>\u00a0<\/strong><\/td>\n | Song\u00fcl \u015eEKER<\/td>\n | 1991<\/td>\n | Turkish<\/td>\n | Istanbul<\/td>\n | Y. Varg\u00fcn<\/td>\n<\/tr>\n | 10.<\/strong><\/td>\n | \u015eahide AKYILDIZ<\/td>\n | 1983<\/td>\n | Turkish<\/td>\n | Istanbul<\/td>\n | Y. Varg\u00fcn<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n | |