SECOND SECTION
DECISION
Application no. 74585/12
Mokhinur BAKHTIIAROVA and Sude Elifnur DURMUŞ
against Turkey
The European Court of Human Rights (Second Section), sitting on 13 September 2016 as a Committee composed of:
Valeriu Griţco, President,
Stéphanie Mourou-Vikström,
Georges Ravarani, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above application lodged on 26 September 2012,
Having regard to the formal declarations accepting a friendly settlement of the case,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
The applicants, Ms Mokhinur Bakhtiiarova and Ms Sude Elifnur Durmuş, are Kirghizstan and Turkish nationals, who were born in 1983 and 2008 respectively and live in İstanbul. They were represented before the Court by Mr A. Yılmaz and Ms S.N. Yılmaz, lawyers practising in Istanbul.
The Turkish Government (“the Government”) were represented by their Agent.
The applicants complained under Article 3, Article 5 §§ 1, 2, 4 and 5 and Article 13 of the Convention about the alleged poor conditions of detention at the Kumkapı Foreigners’ Removal Centre, the alleged unlawfulness of their detention and the absence of communication of information on the reasons for their detention as well as the alleged absence of effective remedies to challenge the lawfulness of their detention and to request compensation.
On 26 April 2016 the Court received the following declarations signed by the Government:
“I declare that the Government of Turkey offer to pay ex gratia to Ms Mokhinur Bakhtiiarova, with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights, EUR 11,000 (eleven thousand euros) to cover any and all pecuniary and non-pecuniary damage, plus any tax that may be chargeable to the applicant.
The Government acknowledge that the detention of the applicant, the conditions of detention at the Kumkapı Foreigners’ Removal Centre where the applicant was held, the absence of communication of information to the applicant on the reasons for her detention, the absence of effective remedies to challenge the lawfulness of her detention and to request compensation amounted to a breach of the applicant’s rights protected by the Convention (see Abdolkhani and Karimnia v. Turkey, no. 30471/08, 22 September 2009, and Yarashonen v. Turkey, no. 72710/11, 24 June 2014).
This sum will be converted into the local currency 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 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.”
“I declare that the Government of Turkey offer to pay ex gratia to Ms Sude Elifnur Durmuş, with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights, EUR 11,000 (eleven thousand euros) to cover any and all pecuniary and non-pecuniary damage, plus any tax that may be chargeable to the applicant.
The Government acknowledge that the detention of the applicant, the conditions of detention at the Kumkapı Foreigners’ Removal Centre where the applicant was held, the absence of communication of information to the applicant on the reasons for her detention, the absence of effective remedies to challenge the lawfulness of her detention and to request compensation amounted to a breach of the applicant’s rights protected by the Convention (see Abdolkhani and Karimnia v. Turkey, no. 30471/08, 22 September 2009, and Yarashonen v. Turkey, no. 72710/11, 24 June 2014).
This sum will be converted into the local currency 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 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.”
On 21 July 2016 the Court received the following declarations signed by one of the applicants’ representatives:
“I, Abdulhalim Yılmaz, note that the Government of Turkey are prepared to pay ex gratia to Ms Mokhinur Bakhtiiarova, with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights, EUR 11,000 (eleven thousand euros) to cover any and all pecuniary and non-pecuniary damage, plus any tax that may be chargeable to the applicant.
The Government acknowledge that the detention of the applicant, the conditions of detention at the Kumkapı Foreigners’ Removal Centre where the applicant was held, the absence of communication of information to the applicant on the reasons for her detention, the absence of effective remedies to challenge the lawfulness of her detention and to request compensation amounted to a breach of the applicant’s rights protected by the Convention (see Abdolkhani and Karimnia v. Turkey, no. 30471/08, 22 September 2009, and Yarashonen v. Turkey, no. 72710/11, 24 June 2014).
This sum will be converted into the local currency 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. From the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
Having consulted the applicant, I would inform you that she accepts the proposal and waives any further claims against Turkey in respect of the facts giving rise to this application. She declares that this constitutes a final resolution of the case.”
“I, Abdulhalim Yılmaz, note that the Government of Turkey are prepared to pay ex gratia to Ms Sude Elifnur Durmuş, with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights, EUR 11,000 (eleven thousand euros) to cover any and all pecuniary and non-pecuniary damage, plus any tax that may be chargeable to the applicant.
The Government acknowledge that the detention of the applicant, the conditions of detention at the Kumkapı Foreigners’ Removal Centre where the applicant was held, the absence of communication of information to the applicant on the reasons for her detention, the absence of effective remedies to challenge the lawfulness of her detention and to request compensation amounted to a breach of the applicant’s rights protected by the Convention (see Abdolkhani and Karimnia v. Turkey, no. 30471/08, 22 September 2009, and Yarashonen v. Turkey, no. 72710/11, 24 June 2014).
This sum will be converted into the local currency 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. From the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
Having consulted the applicant, I would inform you that she accepts the proposal and waives any further claims against Turkey in respect of the facts giving rise to this application. She declares that this constitutes a final resolution of the case.”
THE LAW
The Court takes note of the friendly settlement reached between the parties. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no reasons to justify a continued examination of the application. In view of the above, it is appropriate to strike the case out of the list.
For these reasons, the Court, unanimously,
Decides to strike the application out of its list of cases in accordance with Article 39 of the Convention.
Done in English and notified in writing on 6 October 2016.
Hasan BakırcıValeriu Griţco
Deputy RegistrarPresident
Full & Egal Universal Law Academy