SECOND SECTION<\/p>\n
DECISION<\/p>\n
Application no.1743\/10
\nAhmet KALIK
\nagainst Turkey<\/p>\n
The European Court of Human Rights (Second Section), sitting on 22\u00a0January 2019 as a Committee composed of:<\/p>\n
Paul Lemmens, President,
\nJon FridrikKj\u00f8lbro,
\nIvana Jeli\u0107, judges,
\nand Hasan Bak\u0131rc\u0131, Deputy Section Registrar,<\/p>\n
Having regard to the above application lodged on 16\u00a0November 2009,<\/p>\n
Having regard to the declaration submitted by the respondent Government on 19 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<\/p>\n
1.\u00a0\u00a0The applicant, Mr\u00a0Ahmet Kal\u0131k, is a Turkish national, who was born in 1977 and lives in Istanbul. He was represented before the Court by Mr\u00a0.N. Girasun, a lawyer practising in Diyarbak\u0131r.<\/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 \u00a7 1 of the Convention about the alleged lack of fairness in the proceedings before the Supreme Military Administrative Court on account of his inability to access the classified documents submitted by the Ministry of Defence to that court in the course of the judicial proceedings.<\/p>\n
4.\u00a0\u00a0The application had been communicated to the Government.<\/p>\n
THE LAW<\/p>\n
5.\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 application. They further requested the Court to strike out the application in accordance with Article\u00a037 of the Convention.<\/p>\n
6.\u00a0\u00a0The declaration provided as follows:<\/p>\n
\u201cThe Government hereby wish to express by the way of unilateral declaration that the applicant\u2019s inability to access the classified documents submitted by the Ministry of Defence breached his right to a fair trial in the light of the well-established case\u2011law of the Cevahirliv.\u00a0Turkey, no.\u00a015067\/04, 19\u00a0October 2010 and Topalv.\u00a0Turkey, no.\u00a03055\/04, 21\u00a0April 2009.<\/p>\n
Consequently, the Government is prepared to pay the applicant 5,000 (five thousand euros) to cover any pecuniary and non-pecuniary damage. This sum will be converted into the national currency at the rate applicable on the date of payment, and will be free of any further taxes that may be applicable. It will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article\u00a037\u00a0\u00a7\u00a01 of the European Convention on Human Rights. In the event of failure to pay this sum within the said three-month period, the Government undertakes to pay simple interest on it, from the 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\u00a0By a letter of 19\u00a0November 2018, 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 Tahsin\u00a0Acar judgment (Tahsin\u00a0Acar v.\u00a0Turkey (preliminary objections) [GC], no.\u00a026307\/95,\u00a0\u00a7\u00a7\u00a075-77, ECHR 2003-VI; see also WAZA Sp. z o.o. v.\u00a0Poland (dec.), no.\u00a011602\/02, 26\u00a0June\u00a02007; and Sulwi\u0144ska v.\u00a0Poland (dec.), no.\u00a028953\/03, 18\u00a0September2007).<\/p>\n
11.\u00a0\u00a0The Court has established in a number of cases, including those brought against Turkey, its practice concerning complaints about the lack of fairness in the proceedings before the Supreme Military Administrative Court on account of his inability to access the classified documents submitted by the Ministry of Defence to that court in the course of the judicial proceedings (see, for example, Topal v.\u00a0Turkey, no.\u00a03055\/04,\u00a7\u00a7\u00a012\u201117, 21 April 2009, and Cevahirli v.\u00a0Turkey, no.\u00a015067\/04,\u00a7\u00a7\u00a010-14, 19\u00a0October 2010).<\/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 application (Article\u00a037\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\u00a037 \u00a7\u00a01 in fine).<\/p>\n
14.\u00a0\u00a0The Court considers that the proposed amount should be converted into the currency of the respondent State at the rate applicable at the date of payment, and paid within three months from the date of notification of the Court\u2019s decision issued in accordance with Article\u00a037\u00a7\u00a01 of the European Convention on Human Rights. In the event of failure to settle within this period, simple interest shall be payable on the amount in question at a rate equal to the marginal lending rate of the European Central Bank plus three percentage points.<\/p>\n
15.\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\u00a02 of the Convention (Josipovi\u0107 v.\u00a0Serbia (dec.), no.\u00a018369\/07, 4\u00a0March 2008).<\/p>\n
16.\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\u00a06 \u00a7\u00a01 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\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\u00a0\u00a0 Paul Lemmens
\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