SECOND SECTION
DECISION
Application no. 47138/10
Hamza KOKU
against Turkey
The European Court of Human Rights (Second Section), sitting on 22 October 2019 as a Committee composed of:
Julia Laffranque, President,
Ivana Jelić,
Arnfinn Bårdsen, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above application lodged on 17 June 2010,
Having regard to the declaration submitted by the respondent Government on 30 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, Mr Hamza Koku, is a Turkish national, who was born in 1959 and lives in Hatay. He was represented before the Court by Mr Ü. Koyutürk, a lawyer practising in Hatay.
2. The Turkish Government (“the Government”) were represented by their Agent.
3. The applicant complained under Articles 2 and 13 of the Convention about the killing of his son by a police officer and about the ineffectiveness of the ensuing domestic investigation.
4. The application had been communicated to the Government.
THE LAW
5. The applicant complained under Articles 2 and 13 of the Convention that this son, Mr Murat Koku, had been shot and killed by a police officer. He stated that the circumstances remained unclear and no effective investigation had been conducted by the authorities.
6. After the failure of attempts to reach a friendly settlement, by a letter of 30 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.
7. The declaration provided as follows:
“The Government wish to express by way of unilateral declaration their acknowledgement that the investigation conducted into the death did not meet the standards enshrined in Article 2 of the Convention. The Government undertake to adopt all necessary measures to ensure that the obligation to carry out effective investigations is respected in the future.
The Government of Turkey declare that they offer to pay the applicant Hamza Koku EUR 9,000 (nine thousand euros) to cover any and all non-pecuniary damage, as well as costs and expenses, plus any tax that may be chargeable.
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 taken by the Court to strike the case out of its list of cases. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on them, 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.”
8. 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”.
9. 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.
10. 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).
11. The Court has established in a number of cases, including those brought against Turkey, its practice concerning complaints about the obligation under Article 2 of the Convention to carry out effective investigations (see, inter alia, Mustafa Tunç and Fecire Tunç v. Turkey [GC], no. 24014/05, § 169, 14 April 2015).
12. 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)).
13. In this connection, the Court notes that section 172 of the Code of Criminal Procedure was amended in July 2018. According to the amendment, applicants in Turkey now have the opportunity to ask the relevant prosecutors to reopen the investigations into the deaths of their relatives not only in cases in which the Court has found a violation of the Convention on account of a failure to carry out an effective investigation, but also if their applications have been struck out by the Court on the basis friendly settlements or on the basis of unilateral declarations submitted by the Government.
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 2 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 21 November 2019.
Hasan BakırcıJulia Laffranque
Deputy RegistrarPresident
Full & Egal Universal Law Academy