SECOND SECTION
DECISION
Application no. 35814/09
Sedat ŞERAN
against Turkey
The European Court of Human Rights (Second Section), sitting on 28 May 2019 as a Committee composed of:
Julia Laffranque, President,
Ivana Jelić,
Arnfinn Bårdsen, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above application lodged on 20 May 2009,
Having regard to the declaration submitted by the respondent Government on 18 February 2019 requesting the Court to strike the application out of the list of cases and the applicant’s reply to that declaration,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
1. The applicant, Mr Sedat Şeran, is a Turkish national, who was born in 1974 and is detained in Diyarbakır. He was represented before the Court by Mr M. Özbekli, a lawyer practising in Diyarbakır.
2. The Turkish Government (“the Government”) were represented by their Agent.
3. The applicant complained under Article 6 of the Convention that he had been denied the assistance of a lawyer during the initial stages of the criminal proceedings, and that his conviction was based on the statements he had made to the police in the absence of a lawyer and under alleged duress. The applicant further maintained that he had been denied a fair trial by an independent and impartial tribunal as required by Article 6 § 1 of the Convention due to the presence of a military judge in the composition of the trial court at the initial stage of the trial. Lastly, the applicant also complained that he was subjected to torture under police custody contrary to Article 3 of the Convention.
4. The first complaint was communicated to the Government.
5. After unsuccessful friendly-settlement negotiations, by a letter dated 18 February 2019 the Government informed the Court that they proposed to make a declaration with a view to resolving the issues raised by the application.
6. The declaration provided as follows:
“The Government of Turkey acknowledge that in the present case there has been a violation of the applicant’s rights under Articles 6 §§ 1 and 3 of the Convention in the light of the well-established case-law of the Court.
The Government also recalls that Law no. 4928 on 15 July 2003 repealed the provision concerning the systemic restriction on the right of access to a lawyer.
The Government further emphasises that Article 311 § 1 (f) of the Code on Criminal Procedure, as amended by Law no.7145 of 31 July 2018, now requires reopening of criminal 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 considers that the aforementioned remedy is capable of providing redress in respect of the applicants’ complaints under Article 6 of the Convention.
The Government thus offers, by this unilateral declaration, to pay the applicant, Sedat ŞERAN, EUR 500 (five 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.”
7. On 2 April 2019, the Court received a letter from the applicant informing the Court that he had agreed to the terms of the Government’s declaration.
THE LAW
A. As regards the complaints under Article 6 §§ 1 and 3 of the Convention
8. Having regard to the applicant’s complaints under Article 6 §§ 1 and 3 of the Convention in so far as they relate to the systemic restriction on his right of access to a lawyer and the use of evidence obtained in the absence of a lawyer and under alleged duress to convict him, the Court finds that following the applicant’s express agreement to the terms of the declaration made by the Government the case should be treated as a friendly settlement between the parties.
9. It therefore takes note of the friendly settlement reached between the parties in so far as it relates to the above complaint. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no reasons to justify a continued examination of the application.
10. The Court would like to draw attention to the fact that on 25 July 2018 the Turkish Parliament has adopted Law no.7145. Articles 4, 17, 18 and 19 of this new law provide for a right to request the re-opening of domestic court proceedings following the Court’s decision to strike out a case on the basis of a friendly settlement or unilateral declaration. In particular, according to the Court’s case-law and practice, the re-opening of the domestic proceedings is the most appropriate way to provide an effective solution to an alleged breach of Article 6 of the Convention. Thus, it is considered that the aforementioned remedy is capable of providing redress in respect of the applicant’s complaints under Article 6 of the Convention. Bearing in mind the Court’s subsidiary role in protecting the rights and freedoms guaranteed by the Convention and its protocols, it is recalled that it falls in the first place to the national authorities to redress any violation of the Convention.
11. In view of the above, it is appropriate to strike the case out of the list in so far as it relates to the above complaints.
B. As regards the complaint under Article 6 § 1 of the Convention
12. Relying on Articles 6 § 1 of the Convention, the applicant also complained that he had not been tried by an independent and impartial tribunal due to the presence of a military judge in the composition of the Diyarbakır State Security Court at the initial stage of the trial.
13. Having examined this complaint in the light of all the material in its possession, and in so far as the matter complained of is within its competence, the Court finds that this complaint does not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols (see İzzet Çelik v. Turkey, no. 15185/05, § 33, 23 January 2018, and Kabasakal and Atar v. Turkey, nos. 70084/01 and 70085/01, § 34, 19 September 2006).
C. As regards the complaint under Article 3 of the Convention
14. Relying on Article 3, the applicant lastly complained of the alleged torture he was subjected to in the police custody.
15. The Government submitted in their observations that the applicant had failed to exhaust domestic remedies within the meaning of Article 35 § 1 of the Convention. In this respect, they pointed to the applicant’s failure to lodge an appeal against the public prosecutor’s decision of non-prosecution dated 24 October 1995.
16. The Court observes that the applicant lodged a criminal complaint before the public prosecutor alleging that he was tortured in police custody. On 24 October 1995 the Diyarbakır public prosecutor issued a decision of non-prosecution. However, the applicant failed to lodge an appeal against that decision as required by the domestic law (see Abdulgafur Batmaz v. Turkey, no. 44023/09, § 38, 24 May 2016).
17. It follows that this part of the application must be rejected for non-exhaustion of domestic remedies in accordance with Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court, unanimously,
Decides to strike the complaints under Article 6 §§ 1 and 3 of the Convention out of its list of cases pursuant to Article 39 of the Convention;
Declares the remainder of the application inadmissible.
Done in English and notified in writing on 20 June 2019.
Hasan BakırcıJulia Laffranque
Deputy RegistrarPresident
Full & Egal Universal Law Academy