SECOND SECTION
DECISION
Application no. 8862/10
Gökhan FİLİZ
against Turkey
The European Court of Human Rights (Second Section), sitting on 24 January 2017 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 19 January 2010,
Having regard to the declaration submitted by the respondent Government on 28 July 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 Gökhan Filiz, is a Turkish national, who was born in 1987 and is detained in Istanbul. He was represented before the Court by Ms S. Epçeli Arslan and Ms D. Kaya, lawyers 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 19 December 2007 the applicant was placed in detention on suspicion of homicide.
5. On 6 May 2008 the Istanbul public prosecutor filed an indictment with Istanbul Assize Court accusing the applicant of the above-mentioned crime.
6. In the hearings held on 14 July 2009 and 8 September 2009 respectively, the Istanbul Assize Court ordered the applicant’s continued detention. The applicant filed objections against these decisions.
7. On 28 July 2009 and 17 September 2009, respectively, the 7th Chamber of Istanbul Assize Court dismissed the objections. In delivering its decisions, the court took into consideration the written opinion of the public prosecutors, which had not been communicated to the applicant or his representative.
8. On 18 December 2009 the 6th Chamber of Istanbul Assize Court convicted the applicant and sentenced him to ten years’ imprisonment.
9. On 5 April 2011 the Court of Cassation upheld this judgment.
COMPLAINTS
10. The applicant complained under Article 5 §§ 4 and 5 of the Convention that he did not have an effective remedy to challenge the lawfulness of his detention on account of the non-communication of the prosecutor’s written opinion and the lack of compensation under domestic law in respect of the lack of an effective remedy.
THE LAW
11. The applicant complained about the non-communication of the public prosecutor’s opinion during the proceedings to challenge the lawfulness of the detention and the right to compensation under domestic law in respect of this complaint. He 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 6 September 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.
The declaration provided as follows:
“The Government of the Republic of Turkey hereby wishes to express by way of unilateral declaration its acknowledgement that the applicant’s rights to liberty and security did not meet the standards enshrined in Article 5 of the Convention.
I declare that the Government accordingly offer to pay to the applicant 170 (one hundred seventy) euros (EUR) to cover any and all pecuniary and non-pecuniary damages and EUR 170 (one hundred seventy) to cover any and all cost and expenses, plus any tax that may be chargeable to the applicant.
The Government therefore invites the court to strike the present case out of the list of cases. It states suggests that the present declaration might be accepted by the Court as “any other reason” to justify the striking out of the case of the Court’s list of cases, as referred in Article 37§1 (c) of the Convention.
The above mentioned 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 taken by the Court to strike the case out of its list of cases/ in the event of failure to pay this sum within said three-month period, the Government undertakes 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.”
13. The applicant did not respond to the unilateral declaration of the Government.
14. 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”.
15. 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.
16. 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).
17. 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, and Ceviz v. Turkey, no. 8140/08, §§ 51-60, 17 July 2012).
18. 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)).
19. 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).
20. The Court considers that these amounts 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 amounts in question at a rate equal to the marginal lending rate of the European Central Bank plus three percentage points.
21. 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).
22. 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 §§ 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 16 February 2017.
Hasan BakırcıKsenija Turković
Deputy RegistrarPresident
Full & Egal Universal Law Academy