SECOND SECTION
DECISION
Application no. 58175/10
İhsan ŞEKER 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 7 July 2010,
Having regard to the declaration submitted by the respondent Government on 3 October 2017 requesting the Court to strike the application out of the list of cases,
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. On 27 April 2009 the first two applicants’ son and the remaining applicants’ brother Mazlum Şeker, who was 16 years old at the time, was walking on the street near a building in which an armed operation was being conducted by members of the security forces. He was killed when he was hit by a bullet which emanated from the building in question. The prosecutor closed the investigation into the death on the ground that the bullet which killed him had been fired by a member of the illegal organisation from the open window of a flat and that all precautionary measures had been taken by the police officers to protect the lives of civilians.
4. The application had been communicated to the Government.
THE LAW
5. The applicants complained under Article 2 of the Convention that their relative’s death had been brought about by the authorities’ failure to take precautions to avoid the risks to the lives of civilians while the armed operation was being conducted. Under the same provision they also argued that no effective investigation had been conducted by the national authorities into the killing.
6. After the failure of attempts to reach a friendly settlement, by a letter of 3 October 2017 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.
7. The declaration provided as follows:
“The Government regret the occurrence of individual cases of death caused by failures to protect life, as in the circumstances of the present case, notwithstanding existing Turkish legislation and the resolve of the Government to prevent such failures.
The Government admit that the applicants’ relative’s death resulting from the failure to provide protective measures and the investigation conducted into the death did not meet the standards enshrined in Article 2 of the Convention. The Government undertake to issue appropriate instructions and adopt all necessary measures to ensure that the right to life – including the obligation to carry out effective investigations – is respected in the future.
The Government of Turkey declare that they offer to pay jointly to the applicants İhsan Şeker, Sürya Şeker, Şahide Akyıldız, Maide Orbay, Hamdullah Şeker, Mustafa Şeker, Songül Şeker, Naide Şeker, Mehmet Selim Şeker, and Abdullah Şeker, with a view to securing a unilateral declaration of the above-mentioned case pending before the European Court of Human Rights, EUR 18,000 (eighteen thousand euros) to cover any non-pecuniary damage, plus any tax that may be chargeable and EUR 2,700 (two thousand seven hundred euros) to cover any and all costs and expenses, plus any tax that may be chargeable to the applicants.
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.”
8. On 6 October 2017 the unilateral declaration was forwarded to the applicants who were invited to submit any comments which they may wish to make in reply by 3 November 2017. The applicants have not replied to that letter.
9. 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”.
10. 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.
11. 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).
12. The Court notes that the subject matter of the present application concerns the Member States’ obligation to take steps to protect the right to life. That obligation is clearly recognised and established in the Court’s case-law and the Court has stressed in a number of cases, including those brought against Turkey, that the first sentence of Article 2 § 1 enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (L.C.B. v. the United Kingdom, 9 June 1998, § 36, Reports of Judgments and Decisions 1998‑III).
13. Particularly relevant to the subject matter of the present application, the Court has also emphasised on many occasions that Article 2 of the Convention imposes a duty to plan and control security operations in such a way to minimise to the greatest extent possible any risks of loss of life (see, in particular, McCann and Others v. the United Kingdom, 27 September 1995, § 194, Series A no. 324; see also Cangöz and Others v. Turkey, no. 7469/06, § 106, 26 April 2016).
14. 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)). 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).
15. In this connection the Court notes that section 172 of the Code of Criminal Procedure was amended in July 2018. According to the amendment, applicants in Turkey now have the opportunity to ask the relevant prosecutors to reopen the investigations into the deaths of their relatives not only in cases in which the Court has found a violation of the Convention on account of a failure to carry out an effective investigation, but also if their applications have been struck out by the Court on the basis friendly settlements or on the basis of unilateral declarations submitted by the Government. The Court notes that the investigation into the killing of the applicants’ relative was also closed by a prosecutor (see paragraph 3 above).
16. In the light of the foregoing, and in particular given the clear and extensive case-law on the topic mentioned above, 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).
17. 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).
18. 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
İhsan ŞEKER
1963
Turkish
Istanbul
Y. Vargün
Sürya ŞEKER
1967
Turkish
Istanbul
Y. Vargün
Maide ORBAY
1985
Turkish
Diyarbakır
Y. Vargün
Abdullah ŞEKER
1999
Turkish
Istanbul
Y. Vargün
Hamdullah ŞEKER
1987
Turkish
Istanbul
Y. Vargün
Mehmet Selim ŞEKER
1997
Turkish
Istanbul
Y. Vargün
Mustafa ŞEKER
1989
Turkish
Istanbul
Y. Vargün
Naide ŞEKER
1994
Turkish
Istanbul
Y. Vargün
Songül ŞEKER
1991
Turkish
Istanbul
Y. Vargün
10.
Şahide AKYILDIZ
1983
Turkish
Istanbul
Y. Vargün
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