SECOND SECTION
DECISION
Applications nos. 57357/08 and 57371/08
Gökhan PARILTI against Turkey
and Necati AKSEL against Turkey
The European Court of Human Rights (Second Section), sitting on 20 February 2018 as a Committee composed of:
Ledi Bianku, President,
Nebojša Vučinić,
Jon Fridrik Kjølbro, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above applications lodged on 14 November 2008,
Having regard to the declarations submitted by the respondent Government on 15 November 2017 requesting the Court to strike the applications out of the list of cases and the applicants’ reply to these declarations,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
1. The applicant in the first case, Mr Gökhan Parıltı, is a Turkish national, who was born in 1989 and lives in Ankara. The applicant in the second case, Mr Necati Aksel, is a Turkish national, who was born in 1989 and lives in Manisa. They were represented before the Court by Ms M. Taş, a lawyer practising in Ankara.
2. The Turkish Government (“the Government”) were represented by their Agent.
3. The applicants complained under Article 6 § 1 of the Convention about the alleged lack of fairness in the proceedings before the Supreme Military Administrative Court on account of their inability to access the classified documents submitted by the Ministry of Defence to that court in the course of the judicial proceedings.
4. The applications had been communicated to the Government.
THE LAW
5. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.
6. After the failure of attempts to reach a friendly settlement, by a letter of 15 November 2017 the Government informed the Court that they proposed to make unilateral declarations with a view to resolving the issue raised by the applications. They further requested the Court to strike these applications out of its list of cases in accordance with Article 37 of the Convention.
For each case, the Government submitted separate declarations, which read as follows:
“The Government hereby wishes to express by the way of unilateral declaration that the applicant’s inability to access the classified documents submitted by the Ministry of Defence breached his right to a fair trial in the light of the well-established case‑law of the Cevahirli v. Turkey, no.15067/04, 19 October 2010 and Topal v. Turkey, no. 3055/04, 21 April 2009.
Consequently, the Government is prepared to pay the applicant EUR 5,000 (five thousand euros) to cover any pecuniary and non-pecuniary damage. This sum will be converted into the national currency at the rate applicable on the date of payment, and will be free of any further taxes that may be applicable. It will be payable within three months from the date of notification of the decision taken 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 undertakes to pay simple interest on it, from the 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...”
7. The applicants received the terms of the Government’s unilateral declarations several weeks before the date of this decision. By letters dated 13 December 2017, the applicants’ representative indicated that they were not satisfied with the terms of the unilateral declarations.
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 applications”.
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 applicants wish the examination of the cases 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 lack of fairness in the proceedings before the Supreme Military Administrative Court on account of inability to access the classified documents submitted by the Ministry of Defence to that court in the course of the judicial proceedings (see, for example, Topal v. Turkey, no. 3055/04, §§ 12-17, 21 April 2009, and Cevahirli v. Turkey, no. 15067/04, §§ 10-14, 19 October 2010).
12. Having regard to the nature of the admissions contained in the Government’s declarations, as well as the amount of compensation proposed the Court considers that it is no longer justified to continue the examination of the applications (Article 37 § 1 (c)).
13. 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 applications (Article 37 § 1 in fine).
14. The Court considers that the amounts proposed in the declarations 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.
15. Finally, the Court notes that, should the Government fail to comply with the terms of their unilateral declarations, 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 cases out of the list.
For these reasons, the Court, unanimously,
Decides to join the applications;
Takes note of the terms of the 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 applications out of its list of cases in accordance with Article 37 § 1 (c) of the Convention.
Done in English and notified in writing on 22 March 2018.
Hasan BakırcıLedi Bianku
Deputy RegistrarPresident
Full & Egal Universal Law Academy