SECOND SECTION
DECISION
Application no. 40773/12
Mehmet ŞEDAL and Others
against Turkey
The European Court of Human Rights (Second Section), sitting on 18 December 2018 as a Committee composed of:
Ledi Bianku, President,
Jon Fridrik Kjølbro,
Ivana Jelić, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above application lodged on 28 April 2012,
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 and the applicants’ reply to that declaration,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
1. A list of the applicants is set out in the appendix.
2. The Turkish Government (“the Government”) were represented by their Agent.
3. Fahrettin Şedal was the first two applicants’ son, the third applicant’s husband and the remaining six applicants’ father. On 24 March 2008, while he was on the balcony of his house, he was shot in the abdomen, allegedly by a police officer. He was taken to a hospital where he died on 10 April 2008. On 8 January 2010 the prosecutor issued a continuous search order and instructed law enforcement personnel to continue their searches for the perpetrator until expiry of the statute of limitations in 2033.
4. The application had been communicated to the Government.
THE LAW
5. The applicants complained under Article 2 of the Convention that the respondent State had been responsible for the death of their relative Fahrettin Şedal and alleged that the authorities had not conducted an effective investigation into the killing.
6. 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 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 the Republic of Turkey offer to pay to the applicants, Mehmet Şedal, Gülüzar Şedal, Hanı Şedal, Özlem Şedal, Yıldız Şedal, Barış Şedal, Eylem Şedal, Zilan Şedal and Mahsun Şedal, the amount of EUR 20,000 (twenty thousand euros) jointly, to cover any pecuniary and non-pecuniary damage, plus any tax that may be chargeable to the applicants, with a view to securing the settlement of the above-mentioned case pending before the European Court of Human Rights by unilateral declaration.
The Government regret the occurrence of the actions which have led to the bringing of the present application, in particular the death of the applicants’ relative and the anguish caused to his family. The Government acknowledge that the investigation conducted into the death of the applicants’ relative did not meet the standards enshrined in Article 2 of the Convention. The Government undertake to adopt all necessary measures to ensure that the effectiveness of the investigations into allegations of violation of the right to life – including the obligation to carry out effective investigations – is respected in the future.
These sums 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 these sums within the said three-month period, the Government undertake to pay simple interest on them, 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.”
7. By a letter of 1st March 2018, the applicants indicated that they were not satisfied with the terms of the unilateral declaration on the ground that, in their opinion, the respondent Government were not only responsible for a procedural violation of the right to life but also for a violation of the right to life. Moreover, the amount offered by the Government was very low.
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 application”.
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 case 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; see also Jeronovičs v. Latvia [GC], no. 44898/10, 5 July 2016).
11. The Court has reiterated in a number of cases, including in cases brought against Turkey, the obligation under Article 2 of the Convention to carry out an effective investigation when individuals have been killed as a result of the use of force (see, inter alia, Mustafa Tunç and Fecire Tunç v. Turkey [GC], no. 24014/05, § 169, 14 April 2015 and the case cited therein).
12. Having regard to the nature of the admission 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)). The Court stresses that its decision is without prejudice to the possibility for the applicants to exercise any other available remedies in order to obtain redress (see Jeronovičs v. Latvia (dec.), no. 547/02, § 54, 10 February 2009, and, mutatis mutandis, Jeronovičs, cited above, §§ 116-118). In this connection the Court notes that the investigation into the killing of the applicants’ relative is still open at the national level (see paragraph 3 above).
13. In the light of the foregoing, 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).
14. 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).
15. 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 2 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 24 January 2019.
Hasan BakırcıLedi Bianku
Deputy RegistrarPresident
Appendix
No.
Firstname LASTNAME
Birth year
Nationality
Place of residence
Representative
Mehmet ŞEDAL
1940
Turkish
Hakkari
K. Bayazıt
Gülüzar ŞEDAL
1944
Turkish
Hakkari
K. Bayazıt
Hanı ŞEDAL
1972
Turkish
Hakkari
K. Bayazıt
Özlem ŞEDAL
1991
Turkish
Hakkari
K. Bayazıt
Eylem ŞEDAL
1992
Turkish
Hakkari
K. Bayazıt
Mahsun ŞEDAL
1995
Turkish
Hakkari
K. Bayazıt
Yıldız ŞEDAL
1997
Turkish
Hakkari
K. Bayazıt
Zilan ŞEDAL
2001
Turkish
Hakkari
K. Bayazıt
Barış ŞEDAL
2003
Turkish
Hakkari
K. Bayazıt
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