SECOND SECTION
DECISION
Application no. 75024/12
Deniz KUŞ
against Turkey
The European Court of Human Rights (Second Section), sitting on 13 September 2016 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 September 2012,
Having regard to the declaration submitted by the respondent Government on 26 February 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 Deniz Kuş, is a Turkish national, who was born in 1989 and lives in Diyarbakır. He was represented before the Court by Mr M.D. Devrim, a lawyer practising in Diyarbakır.
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 1 April 2011 the applicant was arrested on suspicion of being a member of an illegal terrorist organisation.
5. On 4 April 2011 Şanlıurfa Magistrates’ Court placed the applicant in detention on remand.
6. On 16 June 2011 the Diyarbakır public prosecutor filed an indictment with the Diyarbakır Assize Court, accusing the applicant of membership of an illegal terrorist organisation.
7. At the hearings held on 23 May 2012 and 9 August 2012 respectively, the applicant’s release requests were rejected. The applicant filed objections against these decisions. On 4 June 2012 and on 28 August 2012 respectively the Diyarbakır Assize Court dismissed the objections. In delivering its decisions, this court also took into consideration the written opinion of the public prosecutors that had not been communicated to the applicant or his representative.
8. On 29 November 2012 the Diyarbakır Assize Court convicted the applicant as charged, and on 2 December 2013 this decision was upheld by the Court of Cassation.
COMPLAINT
9. The applicant complained under Article 5 §§ 4 and 5 of the Convention 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.
THE LAW
10. The applicant complained about 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. He relied on Article 5 §§ 4 and 5 of the Convention.
11. After the failure of attempts to reach a friendly settlement, by a letter of 26 February 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:
“The Government of 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 each applicant 150 (one hundred and fifty) euros (EUR) to cover any and all pecuniary and non‑pecuniary damages and EUR 150 (one hundred and fifty) to cover any and all costs and expenses, plus any tax that may be chargeable to the applicants.
The Government therefore invites the court to strike the present case out of the list of cases. It suggests that the present declaration might be accepted by the Court as “any other reason” justifying the striking out of the case of the Court’s list of cases, as referred to 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. By a letter of 4 April 2016, the applicant indicated that he was not satisfied with the terms of the unilateral declaration.
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 (see, for example, Altınok v. Turkey, no. 31610/08, §§ 57-61, 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, in the particular circumstances of the case, the Court considers that it is no longer justified to continue the examination of the applications (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 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 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 6 October 2016.
Hasan BakırcıKsenija Turković
Deputy RegistrarPresident
Full & Egal Universal Law Academy