SECOND SECTION
DECISION
Application no. 57994/10
Tuncay GÜNDOĞAN
against Turkey
The European Court of Human Rights (Second Section), sitting on 10 January 2017 as a Committee composed of:
Valeriu Griţco, President,
Stéphanie Mourou-Vikström,
Georges Ravarani, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above application lodged on 18 August 2010,
Having regard to the declaration submitted by the respondent Government on 12 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 Tuncay Gündoğan, is a Turkish national, who was born in 1981 and lives in Kars.
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 29 January 2008 the applicant was arrested on suspicion of being a member of an illegal terrorist organisation.
5. On 2 February 2008 the Mardin Magistrates’ Court placed the applicant in detention on remand.
6. On 6 May 2008 the Diyarbakır public prosecutor filed an indictment with the Diyarbakır Assize Court, accusing the applicant of membership of an illegal terrorist organisation.
7. On 25 January 2011 the applicant’s lawyer applied for applicant’s release from detention on remand. On 3 February 2011 this request was rejected by the 6th Chamber of Diyarbakır Assize Court without holding an oral hearing.
8. On 23 April 2012 the applicant was released from detention on remand.
COMPLAINTS
9. The applicant complained under Article 5 §§ 3 and 4 of the Convention about the length of his pre-trial detention and the lack of a hearing during the proceedings to challenge the lawfulness of the detention.
THE LAW
10. Relying upon Article 5 §§ 3 and 4 of the Convention, the applicant complained that the length of his pre-trial detention had been excessive and that the court which dismissed his application for release from detention on remand had not held a hearing.
11. After the failure of attempts to reach a friendly settlement, by a letter of 12 July 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.
12. The declaration provided as follows:
“I declare that the Government of the Republic of Turkey offers to pay to the applicant, Mr Tuncay Gündoğan, the amount of 4,800 (four thousand and eight hundred) Euros in respect of the application registered under no. 57994/10.
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. The payment will constitute the final resolution of the case.
The Government considers that in the present case, the length of the applicant’s detention on remand and the fact that the remedy available to the applicant was not in accordance with the requirements established by the case-law of the Court, failed to meet the standards enshrined in Article 5 § 3 and 5 § 4 of the European Convention on Human Rights (Cahit Demirel v. Turkey, no.18623/03. 7 July 2009). The Government respectfully invites the Court to declare that it is not justified anymore to continue the examination of the application and to strike the case out of its lists in accordance with Article 37 of the Convention.”
13. The applicant did not submit any response to the 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 carefully 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 complaints about the length of detention (see, for example, Cahit Demirel v. Turkey, no. 18623/03, 7 July 2009) and the lack of an oral hearing in determination of the lawfulness of the detention (see, for example, Altınok v. Turkey, no. 31610/08, 29 November 2011).
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 this amount should be converted into 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 amount 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 §§ 3 and 4 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 2 February 2017.
Hasan BakırcıValeriu Griţco
Deputy RegistrarPresident
Full & Egal Universal Law Academy