SECOND SECTION
DECISION
Application no. 49002/09
Nadir Turgay CANVER and Sezer DEMİREL
against Turkey
The European Court of Human Rights (Second Section), sitting on 10 April 2018 as a Committee composed of:
Ledi Bianku, President,
Nebojša Vučinić,
Jon Fridrik Kjølbro, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above application lodged on 24 August 2009,
Having regard to the declaration submitted by the respondent Government on 22 January 2018 requesting the Court to strike the application out of the list of cases,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
1. The applicants, Mr Nadir Turgay Canver and Mr Sezer Demirel, are Turkish nationals, who were born in 1957 and 1964 respectively and live in Adana. They were represented before the Court by Mr E. Gülmen and Mr A. Bozlu, lawyers practising in Adana.
2. The Turkish Government (“the Government”) were represented by their Agent.
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. Relying on a tax audit report, the Adana Chief Public Prosecutor filed an indictment with the Adana Assize Court accusing the applicants of tax evasion.
5. On 13 December 2006 the Adana Assize Court found the applicants guilty as charged and sentenced them each to 15 months’ imprisonment.
6. On 17 November 2008 the Court of Cassation quashed the judgment of 13 December 2006.
7. On 16 March 2009 the Adana Assize Court once again sentenced the applicants each to 15 months’ imprisonment. It further decided to suspend the pronouncement of the judgment pursuant to Article 231 of the Criminal Procedure Code (Law no. 5271).
8. The applicants filed an objection against the suspension of the pronouncement of the judgment. After obtaining the written opinion of the public prosecutor on the matter, on 20 March 2009 the Assize Court dismissed the objection.
COMPLAINTS
9. The applicants complained under Article 6 of the Convention that the non-communication of the Public Prosecutor’s written opinion in the appeal proceedings before the Assize Court had violated their right to an adversarial and fair hearing. Under the same heading, the applicants contested that the proceedings had been unfair.
THE LAW
A. Complaint concerning the non-communication of the Public Prosecutor’s written opinion
10. The applicants complained under Article 6 § 1 of the Convention that the non-communication of the Public Prosecutor’s written opinion in the proceedings before the Assize Court had violated their right to an adversarial and fair hearing.
11. After the failure of attempts to reach a friendly settlement, by a letter of 22 January 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 37 of the Convention.
The declaration provided as follows:
“I declare that the Government of Turkey offer to pay separately to the applicants Nadir Turgay Canver and Sezer Demirel, EUR 400 (four hundred euros) to cover any pecuniary and non-pecuniary damage as well as costs and expenses, plus any tax that may be chargeable to the applicants with a view to resolving the above-mentioned case pending before the European Court of Human Rights.
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 § 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 consider that the absence of communication to the applicants of the public prosecutor’s observation submitted to the Assize Court breached their right to a fair trial in the light of the well-established case-law of the Court (Meral v. Turkey, no.33446/02, 27 November 2007). They respectfully invite the Court to declare that it is no longer justified to continue the examination of the application and to strike it out of its list of cases in accordance with Article 37 of the Convention.”
12. The Court reiterates 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”.
13. It also reiterates 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.
14. To 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 (Tahsin Acar v. Turkey (preliminary objections) [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI; WAZA Sp. z o.o. v. Poland (dec.), no. 11602/02, 26 June 2007; and Sulwińska v. Poland (dec.), no. 28953/03, 18 September 2007).
15. The Court has established in a number of cases, including those brought against Turkey, its practice concerning complaints about non‑communication of the public prosecutor’s written opinion during proceedings to applicants (see, for example, Meral v. Turkey (no. 33446/02, §§ 32-39, 27 November 2007).
16. 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)).
17. Moreover, 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).
18. The Court considers that this amount should be converted into currency of respondent State at the rate applicable at the date of payment, and paid within three months from the date of notification of the Court’s decision issued in accordance with Article 37 § 1 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.
19. 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).
20. In view of the above, it is appropriate to strike this complaint out of the list.
B. Complaint concerning the fairness of proceedings
21. The applicants further complained under Article 6 of the Convention that the domestic courts failed in the evaluation of the facts.
22. In the light of the material in its possession and in so far as the matters complained of are within its competence, the Court finds that this complaint does not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
23. It follows that this part of the application must be declared inadmissible as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Takes note of the terms of the respondent Government’s declaration under Article 6 § 1 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 so far as it concerns the complaint regarding non-communication of Public Prosecutor’s opinion under Article 6 of the Convention in accordance with Article 37 § 1 (c) of the Convention;
Declares the remainder of the application inadmissible.
Done in English and notified in writing on 17 May 2018.
Hasan BakırcıLedi Bianku
Deputy RegistrarPresident
Full & Egal Universal Law Academy