SECOND SECTION
DECISION
Application no. 48517/12
Ayşe ÖNER and Yücel ÖNER
against Turkey
The European Court of Human Rights (Second Section), sitting on 22 October 2019 as a Committee composed of:
Valeriu Griţco, President,
Egidijus Kūris,
Darian Pavli, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above application lodged on 19 June 2012,
Having regard to the declaration submitted by the respondent Government on 31 May 2019 requesting the Court to strike the application out of the list of cases and the applicants’ reply to that declaration,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
The applicants, Ms Ayşe Öner and Mr Yücel Öner, are Turkish nationals, who were born in 1968 and 1961 respectively and live in Zonguldak. They were represented before the Court by Mr H. Kara, a lawyer practising in Ankara.
The Turkish Government (“the Government”) were represented by their Agent.
The applicants had brought compensation proceedings against the State before the military administrative courts. The expert reports taken out in those proceedings assessed the amount of pecuniary damages suffered by the applicants to be higher than the amounts initially claimed by them. The applicants were unable to amend their claims in the light of the expert reports and were awarded only their initial claims.
The applicants’ complaint under Article 6 § 1 of the Convention was given notice to the Government.
THE LAW
The applicants complained about their inability to increase their initial claims in the light of the expert report produced in the proceedings before the military administrative courts. They relied on Article 6 § 1 of the Convention.
After the failure of attempts to reach a friendly settlement, by a letter of 31 May 2019 the Government sent to the Court 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:
“I declare that the Government of Turkey offer to pay the applicants, Ayşe Öner and Yücel Öner, jointly 1,000 EUR (one thousand euros) to cover any and all non‑pecuniary damage as well as costs and expenses, plus any tax that may be chargeable to the applicants.
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 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 before the European Court of Human Rights.
The Government consider that the inability of the applicants to increase their pecuniary claims in the course of the proceedings on account of a procedural restriction at the material time, namely the prohibition of amendment in Law no. 1602, breached their right to a fair trial in the light of the well-established case-law of the Court (Fatma Nur Erten and Adnan Erten v. Turkev, no. 14674/11, 25 November 2014). The Government further emphasize that Article 53 § 1 (ı) of the Code of Administrative Procedure, as amended by Law no. 7145 of 31 July 20l8, now provides for the reopening of administrative court 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 consider that the aforementioned remedy is capable of providing redress in respect of the applicants’ complaints under Article 6 § 1 of the Convention.
The Government respectfully invite the Court to declare that it is no longer justified to continue the examination of the application and to strike it out of its list of cases in accordance with Article 37 of the Convention.”
By a letter of 19 August 2019, the applicants indicated that they were not satisfied with the terms of the unilateral declaration.
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”.
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 applicants wish the examination of the case to be continued.
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).
The Court has established in a number of cases, including those brought against Turkey, its practice concerning complaints about the disproportionate limitation to the right of access to a court on account of the procedural rule at the time which prevented litigants from amending their pecuniary claims in the course of administrative proceedings (see Fatma Nur Erten and Adnan Erten, cited above, §§ 29-33 and Tamer Tanrıkulu v. Turkey, no. 36488/08, § 20, 29 November 2016).
Having regard to the nature of the admissions contained in the Government’s declaration, in particular the adoption of Law no. 7145, according to which an applicant may request the re-opening of his case if the European Court of Human Rights decides to strike out an application following friendly settlement or a unilateral 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)).
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).
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).
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 6§ 1 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 BakırcıValeriu Griţco
Deputy RegistrarPresident
Full & Egal Universal Law Academy