SECOND SECTION
DECISION
Application no. 8123/18
FG PETROL ÜRÜNLERİ TURİZM İNŞAAT GIDA SAN. VE TİC. LTD. ŞTİ.
against Turkey
The European Court of Human Rights (Second Section), sitting on 26 November 2019 as a Committee composed of:
Valeriu Griţco, President,
Egidijus Kūris,
Darian Pavli, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above application lodged on 4 August 2010,
Having regard to the declaration submitted by the respondent Government on 19 April 2019 requesting the Court to strike the application out of the list of cases,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
1. The applicant, F.G Petrol Ürünleri Turizm İnşaat Gıda San. ve Tic. Ltd. Şti., is a company registered in Turkey. It was represented before the Court by Mr Gül, a lawyer practising in Ankara.
2. The Turkish Government (“the Government”) were represented by their Agent.
3. The applicant company complained under Article 6 of the Convention that the non-communication of the Chief Public Prosecutor’s written opinion in the proceedings before the Supreme Administrative Court had violated its right to an adversarial and fair hearing.
4. The application had been communicated to the Government.
THE LAW
5. After the failure of attempts to reach a friendly settlement, by a letter of 19 April 2019, 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 the applicant 400 (four hundred) Euros (EUR) to cover any pecuniary and non-pecuniary damage, as well as costs and expenses plus any tax that may be chargeable to the applicant 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 before the European Court of Human Rights.
The Government consider that the non-communication of the Chief Public Prosecutor’s written opinion in the proceedings before the Supreme Administrative Court breached the applicant’s right to an adversarial and fair hearing in the light of the well-established case-law of the Court (Meral v. Turkey, no. 33446/02, 27 November 2007). The Government further emphasize that Article 53 § 1 (i) of the Code of Administrative Procedure, as amended by Law no. 7145 of 31 July 2018, now requires re-opening of administrative court proceedings in cases where the European Court of Human Rights decides to strike an application out of its list of cases following a friendly settlement or unilateral declaration. The Government consider that the aforementioned remedy is capable of providing redress in respect of the applicant’s complaints under Article 6 of the Convention.
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.”
6. 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”.
7. 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.
8. 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).
9. The Court has established in a number of cases, including those brought against Turkey, its practice concerning complaints about the non‑communication of the Chief public Prosecutor’s written opinion (see Meral v. Turkey, no. 33446/02, 27 November 2007).
10. 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)).
11. 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).
12. 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).
13. 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 6 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 19 December 2019.
Hasan BakırcıValeriu Griţco
Deputy RegistrarPresident
Full & Egal Universal Law Academy