SECOND SECTION
DECISION
Application no. 4446/08
Erdener DEMİREL and Fehmi KARAMAN
against Turkey
The European Court of Human Rights (Second Section), sitting on 13 September 2016 as a Committee composed of:
Ksenija Turković, President,
Jon Fridrik Kjølbro,
Georges Ravarani, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above application lodged on 16 January 2008,
Having regard to the declaration submitted by the respondent Government on 18 March 2016 requesting the Court to strike the application out of the list of cases and the applicants’ reply to that declaration,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
1. The applicant, Mr Erdener Demirel, is a German national. The applicant, Mr Fehmi Karaman is a Turkish national. They were born in 1980 and 1981 respectively and are detained in Tekirdağ. They were represented before the Court by Mr M. Filorinalı, a lawyer practising in Istanbul.
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. On 27 January 2006 the applicants were arrested on suspicion of being members of an illegal organisation.
5. On 30 January 2006, the applicants were brought before the judge at the Istanbul Assize Court, who placed them in pre-trial detention.
6. On 14 March 2006 the public prosecutor at the Istanbul Assize Court filed an indictment against the applicants. Invoking Article 309 § 1 of the Criminal Code, he accused the applicants of membership of an armed illegal organisation and of involvement in activities which undermined the constitutional order of the State.
7. During the hearing dated 10 September 2007, the applicants’ representative requested them to be released pending trial. The Istanbul Assize Court reviewed the lawfulness of the applicants’ continued detention and rejected the request. The applicants objected to this decision.
8. On 2 January 2008 the appeal court dismissed the objection lodged by the applicants’ representative, without holding an oral hearing and based on the public prosecutor’s written opinion, which was not communicated to the applicants or to their representative.
COMPLAINTS
9. The applicants complained under Article 5 §§ 4 and 5 of the Convention about the lack of the adversarial proceedings in review of the lawfulness of their detention and the non-communication of the public prosecutor’s opinion during the same proceedings. They also complained about lack of compensation under domestic law in respect of these complaints.
THE LAW
A. Disjoinder of the applications
10. On 16 Mach 2010 the Court decided to join the present application with three other applications, Ayboğa and others v. Turkey (35302/08), Hasan Coşar v. Turkey (47239/08) and Deniz Seki v. Turkey (44695/09) in view of the similar complaints, declared the applications partly admissible and communicated them to the Government. However, the Court considers that it is necessary to separate them. Accordingly, it decides to disjoin the present application from the other ones.
B. Articles 5 §§ 4 and 5 of the Convention
11. The applicants complained about the lack of an effective remedy to challenge the lawfulness of their detention and right to compensation under domestic law in respect of these complaints. They relied on Article 5 §§ 4 and 5 of the Convention.
12. After the failure of attempts to reach a friendly settlement, by a letter of 18 March 2016 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.
13. The declaration provided as follows:
“I declare that the Government of Republic of Turkey offers to pay to the applicants, Mr Erdener Demirel and Mr Fehmi Karaman, the amount of 1 200 (one thousand and two hundred) Euros each to cover pecuniary and non-pecuniary damage and 500 (five hundred) Euros jointly to cover cost and expenses in respect of the application registered under no 4446/08.
This sum, which is considered to be appropriate in the light of the jurisprudence of the Court, covers any pecuniary and non-pecuniary damage as well as costs, and shall be paid in Turkish Liras, free of any tax that may be applicable. The sum shall be payable within three months from the date of delivery of the decision by the Court pursuant to Article 37§1 of the European Convention on Human Rights. This payment will constitute the final resolution of the case.
The Government considers that in the present case, the fact that the remedies available to challenge lawfulness of their detention and obtain compensation were not in accordance with the requirements established by the case-law of the Court., failed to meet the standards enshrined in Article 5§4 and 5§5 of the European Convention on Human Rights (Cahit Demirelv. Turkey, no. 18623/03, 7 July 2009; Kürüm v. Turkey, no. 56493/07, 26 January 2010).The Government respectfully invites the Court to declare that it is not justified anymore to continue the examination of the application and strike the case out of its lists in accordance with Article 37 of the Convention.”
14. The applicants did not respond to the unilateral declaration of the Government.
15. 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”.
16. 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.
17. 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).
18. The Court has established in a number of cases, including those brought against Turkey, its practice concerning complaint about the non-communication of the public prosecutor’s opinion during the proceedings to challenge the lawfulness of the detention and right to compensation under domestic law in respect of this complaint (see, for example, Altınok v. Turkey, no. 31610/08, §§ 57-61, 29 November 2011).
19. 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)).
20. 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).
21. The Court considers that these amounts 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’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 amounts in question at a rate equal to the marginal lending rate of the European Central Bank plus three percentage points.
22. 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).
23. In view of the above, it is appropriate to strike the case out of the list.
For these reasons, the Court, unanimously,
Decides to disjoin the application from applications numbers 35302/08, 47239/08, and 44695/09;
Takes note of the terms of the respondent Government’s declaration under Article 5 §§ 4 and 5 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.
Done in English and notified in writing on 6 October 2016.
Hasan BakırcıKsenija Turković
Deputy RegistrarPresident
Full & Egal Universal Law Academy