SECOND SECTION
DECISION
Application no. 2281/10
Abdulcebbar KIRTAY
against Turkey
The European Court of Human Rights (Second Section), sitting on 19 March 2019 as a Committee composed of:
Julia Laffranque, President,
Stéphanie Mourou-Vikström,
Arnfinn Bårdsen, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above application lodged on 1 December 2009,
Having regard to the declaration submitted by the respondent Government on 6 September 2018 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 Abdulcebbar Kırtay, is a Turkish national, who was born in 1972 and is detained in Diyarbakır.
2. The Turkish Government (“the Government”) were represented by their Agent.
3. The applicant complained that he had not had a fair trial as a result of the systemic restriction on his right to legal assistance while in police custody.
4. On 6 September 2018 the Government submitted to the Court the following unilateral declaration and requested the Court to strike the case out of its list of cases:
“The Government of Turkey acknowledge that in the present case there has been a violation of the applicant’s rights under Articles 6 §§ 1 and 3 of the Convention in the light of the well-established case-law of the Court.
The Government also recalls that Law no. 4928 on 15 July 2003 repealed the provision concerning the systemic restriction on the right of access to a lawyer.
The Government further emphasises that Article 311 § 1 (f) of the Code on Criminal Procedure, as amended by Law no.7145 of 31 July 2018, now requires reopening of criminal 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 a unilateral declaration. The Government considers that the aforementioned remedy is capable of providing redress in respect of the applicants’ complaints under Article 6 of the Convention.
The Government thus offer to pay the applicant, Abdulcebbar Kırtay, EUR 500 (five hundred euros) 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.”
5. By a letter of 18 October 2018 the applicant informed the Court that he had agreed to the terms of the Government’s declaration.
THE LAW
6. The Court considers that the applicant’s express agreement to the terms of the declaration made by the Government can be considered as an implied friendly settlement between the parties (see, for example, Karasakal and others v. Turkey (dec.), no. 67461/11, 2 October 2018).
7. The Court therefore takes note of the friendly settlement reached between the parties. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no reasons to justify a continued examination of the application.
8. The Court would like to draw attention to the fact that on 25 July 2018 the Turkish Parliament has adopted Law no.7145. Articles 4, 17, 18 and 19 of this new law provide for a right to request the re-opening of domestic court proceedings following the Court’s decision to strike out a case on the basis of a friendly settlement or unilateral declaration. In particular, according to the Court’s case-law and practice, the re-opening of the domestic proceedings is the most appropriate way to provide an effective solution to an alleged breach of Article 6 of the Convention. In this connection, bearing in mind the Court’s subsidiary role in protecting the rights and freedoms guaranteed by the Convention and its protocols, it is recalled that it falls in the first place to the national authorities to redress any violation of the Convention.
9. In view of the above, it is appropriate to strike the case out of the list.
For these reasons, the Court, unanimously,
Decides to strike the application out of its list of cases in accordance with Article 39 of the Convention.
Done in English and notified in writing on 11 April 2019.
Hasan BakırcıJulia Laffranque
Deputy RegistrarPresident
Full & Egal Universal Law Academy