SECOND SECTION<\/p>\n
DECISION<\/p>\n
Applications nos.29026\/09 and 29042\/09
\nZeydin SUMER against Turkey
\nand Hekim SUMER against Turkey<\/p>\n
The European Court of Human Rights (Second Section), sitting on 22\u00a0January 2019 as a Committee composed of:<\/p>\n
Julia Laffranque, President,
\nValeriuGri\u0163co,
\nSt\u00e9phanie Mourou-Vikstr\u00f6m, judges,<\/p>\n
and Hasan Bak\u0131rc\u0131, Deputy Section Registrar,<\/p>\n
Having regard to the above applications lodged on 11 May 2009,<\/p>\n
Having regard to the declarations submitted by the respondent Government on 17 October 2018 requesting the Court to strike the applications 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<\/p>\n
1.\u00a0\u00a0The applicant in the first case, Mr Zeydin Sumer, is a Turkish national, who was born in 1983 and lives in Hakkari. The applicant in the second case, Mr Hekim Sumer, is a Turkish national, who was born in 1987 and lives in Hakkari. They were represented before the Court by Mr\u00a0F.\u00a0Timur, a lawyer practising in Hakkari.<\/p>\n
2.\u00a0\u00a0The Turkish Government (\u201cthe Government\u201d) were represented by their Agent.<\/p>\n
3.\u00a0\u00a0The applications had been communicated to the Government.<\/p>\n
THE LAW<\/p>\n
4.\u00a0\u00a0Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.<\/p>\n
5.\u00a0\u00a0The applicants complained under Article 6 \u00a7 1 of the Convention that they were denied access to a court on account of the Supreme Military Administrative Court\u2019s refusal to grant them legal aid to pay the court fees.<\/p>\n
6.\u00a0\u00a0After the failure of attempts to reach a friendly settlement, by a letter of 17\u00a0October 2018 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by the applications. They further requested the Court to strike out the applications in accordance with Article\u00a037 of the Convention.<\/p>\n
Each declaration provided as follows:<\/p>\n
\u201cI declare that the Government of Turkey offer to pay the applicant 2500 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\u2011mentioned cases pending before the European Court of Human Rights.<\/p>\n
This sum wilt 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 these sums within the said three\u2011month period, the Government undertake to pay simple interest on then\u0589, 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 cases.<\/p>\n
The Government consider that the inability of the applicant to access to a court on account of the Supreme Military Administrative Court\u2019s refusal to grant him legal aid to pay the court fees, breached his right to a fair trial in the light of the well\u2011established case-law of the Court (\u0130lbeyiKemalo\u011flu and MeriyeKemalo\u011fluv.\u00a0Turkey, no.\u00a019986\/06, 10 April 2012). The Government further emphasises that Article 53 \u00a7 1 (i) of the Code of Administrative Procedure, as amended by Law no.\u00a07l45 of 31 July 2018, now requires reopening of administrative court 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.\u201d<\/p>\n
7.\u00a0\u00a0By letters of 13 November 2018, both applicants\u2019 representative indicated that they were 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 applications\u201d.<\/p>\n
9.\u00a0\u00a0It also reiterates that in certain circumstances, it may strike out an applications 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 cases 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 (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\u00a0June\u00a02007; and Sulwi\u0144ska v. Poland (dec.), no. 28953\/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 applicants\u2019 right of access to a courton account of court\u2019s refusal to grant them legal aid to pay the court fees (see, for example, (\u0130lbeyiKemalo\u011flu and MeriyeKemalo\u011fluv.\u00a0Turkey, no.\u00a019986\/06, 10 April 2012).<\/p>\n
12.\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 applications (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 applications (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 cases 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 join the applications;<\/p>\n
Decides to strike the applications 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 14 February 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