SECOND SECTION
DECISION
Application no. 61957/09
Mustafa DEMİREL
against Turkey
The European Court of Human Rights (Second Section), sitting on 8 November 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 30 October 2009,
Having regard to the declaration submitted by the respondent Government on 26 May 2016 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
1. The applicant, Mr Mustafa Demirel, is a Turkish national, who was born in 1979 and lives in Gaziantep. He was represented before the Court by Mrs Z. Tahiroğlu, a lawyer practising in Ankara.
2. The Turkish Government (“the Government”) were represented by their Agent.
3. The applicant complained under Article 5 § 1 of the Convention about the room confinement imposed on him by his military superiors as a disciplinary measure.
4. The application had been communicated to the Government.
THE LAW
5. The applicant complained about the room confinement imposed on him by his military superiors as a disciplinary measure. He relied on Article 5 § 1 of the Convention.
6. After the failure of attempts to reach a friendly settlement, by a letter of 26 May 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.
7. The declaration provided as follows:
“The Government hereby wishes to express by the way of unilateral declaration that the applicant’s detention by order of his high-ranking commander does not meet the standards enshrined in Article 5 § 1 of the Convention.
Consequently, the Government is prepared to pay the applicant 6,800 (six thousand eight hundred) Euros to cover any pecuniary and non-pecuniary damage. This sum 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 undertakes to pay simple interest on it, from the 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 invites 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.”
8. The applicant did not submit any response to the declaration of the Government.
9. 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”.
10. 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.
11. 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 2004-III; see also 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).
12. The Court has established in a number of cases, including those brought against Turkey, its practice concerning complaints about the violation of Article 5 § 1 due to the lack of integration in the domestic legal system of a mechanism to ensure that disciplinary measures occasioning deprivation of liberty imposed in the army be issued or controlled by an authority with judicial guarantees (see, for example, Engel and Others v. the Netherlands, 8 June 1976, § 69, Series A no. 22; A.D. v. Turkey, no. 29986/96, § 21, 22 December 2005; Pulatlı v. Turkey, no. 38665/07, § 20, 26 April 2011; and Tengilimoğlu and Others v. Turkey, nos. 26938/08, 41039/09, 66328/09 and 66451/09, § 39, 5 June 2012).
13. 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)).
14. 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).
15. 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).
16. In view of the above, it is appropriate to strike the case out of the list.
For these reasons, the Court, unanimously,
Takes note of the terms of the respondent Government’s declaration under Article 5 § 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 accordance with Article 37 § 1 (c) of the Convention.
Done in English and notified in writing on 1 December 2016.
Hasan BakırcıKsenija Turković
Deputy RegistrarPresident
Full & Egal Universal Law Academy