SECOND SECTION
DECISION
Application no. 43501/05
Hilmi SANDIKÇI
against Turkey
The European Court of Human Rights (Second Section), sitting on 27 March 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 application lodged on 10 November 2005,
Having regard to the declaration submitted by the respondent Government on 22 January 2018 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 Hilmi Sandıkçı, is a Turkish national, who was born in 1956 and lives in Istanbul.
2. The Turkish Government (“the Government”) was represented by their Agent.
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. On 21 November 1980 the applicant was arrested and then detained on suspicion of membership of an illegal organisation.
5. On 26 November 1982 the Erzincan Martial-Law Court (Sıkıyönetim Mahkemesi) found in favour of the applicant and ordered his release.
6. On 8 February 1990 the applicant was acquitted of the charges against him.
7. On 12 June 1998 the applicant initiated compensation proceedings before the Bakırköy Assize Court for his unlawful detention, pursuant to Law no. 466.
8. On 14 May 2010 the court partially granted the applicant’s request. During the proceedings, the Public Prosecutor’s written opinion was not communicated to the applicant.
9. On 28 May 2012 the Court of Cassation upheld the judgment of 14 May 2010.
COMPLAINTS
10. The applicant complained under Article 6 § 1 of the Convention that the non-communication of the Public Prosecutor’s written opinion in the proceedings before the Bakırköy Assize Court had violated his right to an adversarial and fair hearing. Under the same heading, he further alleged that the length of proceedings had been unreasonable.
THE LAW
A. Non-communication of the Public Prosecutor’s written opinion
11. The applicant complained under Article 6 § 1 of the Convention that the non- communication of the Public Prosecutor’s written opinion in the proceedings before the Assize Court had violated his right to an adversarial and fair hearing.
12. After the failure of attempts to reach a friendly settlement, by a letter of 22 January 2018 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by this part of 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 applicant Hilmi Sandıkçı, EUR 200 (two 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.
The Government consider that the absence of communication to the applicant of the public prosecutor’s observation submitted to the Assize Court breached his right to a fair trial in the light of the well-established case-law of the Court (Meral v. Turkey, no. 33446/02, 27 November 2007). They 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. On behalf of the Government. ”
13. 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”.
14. 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.
15. 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).
16. The Court has established in a number of cases, including those brought against Turkey, its practice concerning complaints about non‑communication of the public prosecutor’s written opinion during proceedings to applicants (see, for example, Meral v. Turkey (no. 33446/02, §§ 32-39, 27 November 2007).
17. 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)).
18. 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).
19. The Court considers that this amount 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 amount in question at a rate equal to the marginal lending rate of the European Central Bank plus three percentage points.
20. 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).
21. In view of the above, it is appropriate to strike this complaint out of the list.
B. Length of proceedings
22. The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement laid down in Article 6 § 1 of the Convention.
23. The Government noted that pursuant to Law no. 6384 a Compensation Commission had been established to deal with applications concerning the length of proceedings and the non-execution of judgments. They maintained that the applicant had not exhausted domestic remedies, as he had not made any application to the Compensation Commission: this ground had also been recognised by the Court in its decision in the case of Turgut and Others v. Turkey ((dec.), no. 4860/09, 26 March 2013).
24. The Court observes that, as pointed out by the Government, a new domestic remedy has been established in Turkey following the application of the pilot judgment procedure in the case of Ümmühan Kaplan v. Turkey (no. 24240/07, 20 March 2012). Subsequently, in its decision in the case of Turgut and Others (cited above), the Court declared a new application inadmissible on the ground that the applicants had failed to exhaust domestic remedies, that is to say the new remedy. In so doing, the Court considered in particular that this new remedy was a priori accessible and capable of offering a reasonable prospect of redress for complaints concerning the length of proceedings.
25. Accordingly, taking account of the Government’s preliminary objection with regard to the obligation of the applicant to make use of the new domestic remedy established by Law no. 6384, the Court reiterates its conclusion in the case of Turgut and Others (cited above). It therefore concludes that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
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 that part of the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention.
Declares the remainder of the application inadmissible.
Done in English and notified in writing on 19 April 2018.
Hasan BakırcıLedi Bianku
Deputy RegistrarPresident
Full & Egal Universal Law Academy