SECOND SECTION
\nDECISION
\nApplication no. 78833\/12
\n\u0130hsan GEZENER
\nagainst Turkey<\/p>\n
The European Court of Human Rights (Second Section), sitting on 8\u00a0Octobre 2019 as a Committee composed of:<\/p>\n
Julia Laffranque, President,
\nIvana Jeli\u0107,
\nArnfinn B\u00e5rdsen, judges,
\nand Hasan Bak\u0131rc\u0131, Deputy Section Registrar,<\/p>\n
Having regard to the above application lodged on 18 September 2012,<\/p>\n
Having regard to the declaration submitted by the respondent Government on 28 June 2019 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 \u0130hsan Gezener, is a Turkish national, who was born in 1977 and lives in Istanbul. He was represented before the Court by Mr\u00a0\u0130.\u00a0Akme\u015fe, a lawyer practising 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 \u00a7 3 (c) of the Convention about the unfairness of the criminal proceedings due to the systemic restriction imposed on his right of access to a lawyer during the pre-trial stage pursuant to Law no. 3842 and the subsequent use by the trial court of the statements taken in the absence of a lawyer. The applicant further complained under Article 6 \u00a7 1 of the Convention about the absence of a hearing before the Court of Cassation.<\/p>\n 4.\u00a0\u00a0The application had been communicated to the Government.<\/p>\n THE LAW<\/strong><\/p>\n A.\u00a0\u00a0\u00a0 As regards the complaints under Article 6 \u00a7\u00a7 1 and 3 (c) of the Convention concerning the alleged denial of legal assistance during the preliminary investigation stage and the use of statements obtained in the absence of a lawyer to convict the applicant<\/strong><\/p>\n 5.\u00a0\u00a0After the failure of attempts to reach a friendly settlement, by a letter of 28\u00a0June 2019 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 6.\u00a0\u00a0The declaration provided as follows:<\/p>\n \u201cThe Government of Turkey acknowledge that in the present case there has been a violation of the applicants\u2019 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 applicants\u2019 complaints under Article\u00a06 of the Convention.<\/p>\n The Government thus offer to pay the applicant \u0130hsan GEZENER, EUR\u00a0500 (five\u00a0hundred\u00a0euros) 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\u00a0On 30 July 2019 the Court received a letter from the applicant indicating that he was not satisfied with the terms of the unilateral declaration as he found the amount offered by the Government too low.<\/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 Tahsin Acar judgment (see 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.\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 of systemic denial of legal assistance and the use of evidence obtained in the absence of a lawyer to convict applicants (see Mehmet Duman v. Turkey, no.\u00a038740\/09, 23\u00a0October 2018; \u00d6mer G\u00fcner v. Turkey, no. 28338\/07, 4\u00a0September 2018; Giri\u015fen v. Turkey, no.\u00a053567\/07, 13 March 2018; Can\u015fad and Others v.\u00a0Turkey, no. 7851\/05, 13 March 2018; \u0130zzet \u00c7elik v. Turkey, no.\u00a015185\/05, 23\u00a0January 2018; and Bayram Ko\u00e7 v. Turkey, no. 38907\/09, 5\u00a0September 2017).<\/p>\n 12.\u00a0\u00a0In the above-mentioned cases, the Court, without examining whether the systemic nature of the restriction on the applicants\u2019 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 of the applicant\u2019s statements to the police by the trial court, without examining the question of 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\u00a06 \u00a7\u00a7\u00a01 and 3 (c) of the Convention 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 a violation of Article 6 \u00a7\u00a7 1 and 3 of the Convention in their unilateral declaration.<\/p>\n 14.\u00a0\u00a0It is also important to note that the legal provisions from which the issue of systemic restriction on the right to a lawyer stemmed were repealed by Law no. 4928 of 15 July 2003 (see further, Salduz c. Turquie [GC], no\u00a036391\/02, \u00a7\u00a7\u00a027\u201131, CEDH 2008,) and that a new Code of Criminal Procedure (Law\u00a0no.\u00a05271) entered into force on 1 June 2005, in which there is no provision for a systemic restriction on the right of access to a lawyer.<\/p>\n 15.\u00a0\u00a0The Court further notes that until 31 July 2018, Article 311 \u00a7 1 (f) of Code of Criminal Procedure provided applicants with a remedy entailing the possibility of the reopening of the criminal proceedings solely 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\u00a0no.\u00a07145 on 31 July 2018, applicants are now entitled to lodge an application for the reopening of criminal proceedings following a decision by the Court 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\u00a0311 \u00a7 1 (f) of the Code of Criminal Procedure as grounds for 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.\u00a042399\/13 and 8 others, \u00a7 26, 20 March 2018, with further references therein, and compare Sroka v. Poland (dec.), no. 42801\/07, 6 March 2012).<\/p>\n 16.\u00a0\u00a0In that connection, it further points out that in accordance with the the Court\u2019s case-law and practice, reopening 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 considers 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, the Court notes 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 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)). 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\u2011118, 5\u00a0July 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 (see 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 as regards the complaints under Article 6 \u00a7\u00a7 1 and 3 (c) of the Convention.<\/p>\n B.\u00a0\u00a0\u00a0\u00a0 As regards the complaint under Article 6 \u00a7 1 of the Convention<\/strong><\/p>\n 21.\u00a0\u00a0Relying on Article 6 \u00a7 1 of the Convention the applicant complained about the absence of a hearing before the Court of Cassation.<\/p>\n 22.\u00a0\u00a0The Court reiterates that as the applicant is entitled lodge an application for the reopening of criminal proceedings following the entry into force of Law no. 7145 on 31\u00a0July 2018 (see paragraph 15 above), a fresh examination of the case would be possible, and that the aforementioned remedy is capable of providing redress in respect of the applicant\u2019s complaint under Article 6 of the Convention. As a result, the Court considers that there is no need to examine the admissibility or the merits of this complaint regarding the reliability and accuracy of the evidence used by the trial court to convict the applicant, the alleged lack of procedural safeguards in relation to such evidence.<\/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 that part of the application out of its list of cases in accordance with Article 37 \u00a7 1 (c) of the Convention.<\/p>\n Decides that there is no need to examine the admissibility or the merits of the complaint under Article 6 regarding the absence of a hearing before the Court of Cassation.<\/p>\n Done in English and notified in writing on 7 November 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