SECOND SECTION
DECISION
Application no. 38622/10
Masum BADAY
against Turkey
The European Court of Human Rights (Second Section), sitting on 19 February 2013 as a Committee composed of:
Dragoljub Popović, President,
Paulo Pinto de Albuquerque,
Helen Keller, judges,,
and Françoise Elens-Passos, Deputy Section Registrar,
Having regard to the above application lodged on 31 May 2010,
Having regard to the partial decision of 13 March 2012,
Having regard to the declaration submitted by the respondent Government on 8 August 2012 requesting the Court to strike the application out of the list of cases and the applicant’s reply to that declaration,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
The applicant, Mr Masum Baday, is a Turkish national, who was born in 1981 and lives in İstanbul. He was represented before the Court by Mr M. Erbil and Ms N. Selçuk, lawyers practising in İstanbul.
The Turkish Government (“the Government”) were represented by their Agent.
The applicant complained under Articles 5 § 3, 5 § 5, 6 § 1 and 13 of the Convention about the length of his detention, his right to compensation for detention in contravention of Article 5 § 3 of the Convention, the length of criminal proceedings and the absence of a remedy for the excessive length of the proceedings.
The applicant was released pending trial at the hearing held on 27 January 2012.
The applicant’s above mentioned complaints had been communicated to the Government and the remainder of his application had been declared inadmissible with the partial decision dated 13 March 2012.
THE LAW
The applicant complained about the length of his detention, his right to compensation for detention in contravention of Article 5 § 3 of the Convention, the length of criminal proceedings and the absence of a remedy for the excessive length of the proceedings. He relied on Articles 5 § 3, 5 § 5, 6 § 1 and 13 of the Convention.
After the failure of attempts to reach a friendly settlement, by a letter of 8 August 2012 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.
The declaration provided as follows:
“The Government hereby wish to express by the way of unilateral declaration its acknowledgement of the unreasonable length of pre-trial detention and criminal proceedings by means of Art. 5/3 and Art. 6/1 of the Convention. The Government would also like to acknowledge that the applicant’s right to compensation regarding the alleged violation of Art. 5/3 and Art. 6/1 was not in conformity with the requirements of Art. 5/5 and Art. 13 of the Convention.
Consequently, the Government are prepared to pay the applicant 3300 (three thousand and three hundred) Euros. This sum, which is to cover any pecuniary and non-pecuniary damage, as well as costs and expenses (inclusive of value-added taxes paid on lawyers’ fees), 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 37 § 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.
The Government therefore invite the Court to strike the present case out of the list of cases. They suggest that the present declaration might be accepted by the Court as “any other reason” justifying the striking out of the case of the Court’s list of cases, as referred to in Article 37 § 1 (c) of the Convention.”
By a letter of 6 September 2012, the applicant indicated that he was not satisfied with the terms of the unilateral declaration.
The Court recalls that Article 37 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 37 § 1 (c) enables the Court in particular to strike a case out of its list if:
“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.
It also recalls that in certain circumstances, it may strike out an application under Article 37 § 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.
To this end, the Court will examine carefully the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (Tahsin Acar v. Turkey [GC], no. 26307/95, §§ 75-77, ECHR 2003‑VI; also WAZA Spółka z o.o. v. Poland (dec.), no. 11602/02, 26 June 2007; Sulwińska v. Poland (dec.), no. 28953/03; Stark and Others v. Finland (striking out), no. 39559/02, § 23, 9 October 2007; Silva Marrafa v. Portugal (dec.), no. 56936/08, 25 May 2010; Karal v. Turkey (dec.), no. 44655/09, 29 March 2011; and Barış İnan v. Turkey (dec.), no. 20315/10, 24 May 2011).
The Court has established in a number of cases, including those brought against Turkey, its practice concerning complaints about the length of detention (see, for example, Cahit Demirel v. Turkey, no. 18623/03, 7 July 2009); the right to compensation for detention in contravention of Article 5 § 3 of the Convention (see, for example, Kürüm v. Turkey, no. 56493/07, 26 January 2010); the length of criminal proceedings together with the absence of an effective remedy in respect of the length complaint (see, for example, Daneshpayeh v. Turkey, no. 21086/04, §§ 28-29, 16 July 2009).
Having regard to the nature of the admissions contained in the Government’s declaration, as well as the amount of compensation proposed – which is consistent with the amounts awarded in similar cases – the Court considers that it is no longer justified to continue the examination of the application (Article 37 § 1(c)). In this connection, it should be pointed out that the Court attaches particular importance to the fact that the applicant’s detention on remand came to an end on 27 January 2012 (Zdziarski v. Poland, no. 14239/09, §§ 22-24, 25 January 2011 and Bieniek v. Poland, no. 46117/07, § 22, 1 June 2010).
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 § 1 in fine).
Finally, 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 § 2 of the Convention (Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008).
For these reasons, the Court unanimously
Takes note of the terms of the respondent Government’s declaration under Articles 5 § 3, 5 § 5, 6 § 1 and 13 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;
Decides to strike the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention.
Françoise Elens-PassosDragoljub Popović
Deputy RegistrarPresident
Full & Egal Universal Law Academy