SECOND SECTION
DECISION
Application no. 3685/10
Nihari SEVİM 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 14 December 2009,
Having regard to the declaration submitted by the respondent Government on 27 March 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. On 17 September 1989 the bodies of the first fifteen applicants’ relatives Tahsin Sevinç, Hasan Utanç and Hasan Caner were found at the side of a road near a village. They had all been shot in the head, allegedly by agents of the State.
4. The remaining two applicants’ relative Mehmet Kılıç was a dual Iraqi and Turkish national who, according to the applicants, was kidnapped in 1989 and handed over by a member of the Turkish military to the authorities in Iraq where he was allegedly hanged.
5. In 1999 a number of persons accused of killing the relatives of the fifteen applicants, as well as of the kidnapping of the relative of the remaining two applicants, were put on trial. According to the information provided by the applicants, the trial was still continuing in 2014.
6. The application had been communicated to the Government.
THE LAW
7. The applicants complained under, inter alia, Article 2 of the Convention that the respondent State had been responsible for the deaths of their relatives and alleged that no effective investigation had been conducted into the deaths.
8. After the failure of attempts to reach a friendly settlement, by a letter of 27 March 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 offers to pay the following amounts to the applicants to cover any and all pecuniary and non-pecuniary damage and all costs and expenses, plus any tax that may be chargeable to the applicants:
– EUR 25,000 (twenty five thousand euros) jointly to Nihari Sevim, Harun Sevim and Bişar Sevim;
– EUR 30,000 (thirty thousand euros) jointly to Hanım Utanç, Hüsnü Utanç, Ramazan Utanç and Kıyaseddin Utanç;
– EUR 30,000 (thirty thousand euros) jointly to Hezar Caner, Hayat Caner, Haci Caner, Mehmet Caner, Lale İşlek, Fatma Caner, Ömer Caner and Ali Caner; and
– EUR 30,000 (thirty thousand euros) jointly to Safiye Kılıç and Hekima Kılıç.
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.
The Government considers in the present case, the investigation conducted into the deaths of the applicants’ four relatives did not meet the standards enshrined in Article 2 of the Convention. The Government undertakes to adopt all necessary measures to ensure that the obligation to carry out effective investigations is respected in the future.”
9. By a letter of 15 May 2018, the applicants indicated that they were not satisfied with the terms of the unilateral declaration on the ground that their application concerned very serious human right violations and, as such, respect for human rights and justice required the Court to continue the examination of the merits of their allegations.
10. 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”.
11. 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.
12. 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).
13. 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; see also Gasyak and Others v. Turkey, no. 27872/03, §§ 77-81, 13 October 2009). In a number of its judgments the Court has also held that an excessive delay in an investigation or in a trial in itself render that investigation or trial ineffective for the purposes of Article 2 of the Convention (see Cerf v. Turkey, no. 12938/07, §§ 80-81, 3 May 2016 and İncin v. Turkey, no. 3534/06, §§ 31-32, 9 January 2018).
14. Having regard to the nature of the admissions contained in the Government’s declaration, as well as the amounts of compensation proposed – which are 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 trial concerning the deaths of the applicants’ relatives is still open (see paragraph 5 above).
15. 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).
16. 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).
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
Nihari SEVİM
1930
Turkish
Şırnak
M.N. Girasun
Harun SEVİM
1974
Turkish
Şırnak
M.N. Girasun
Bişar SEVİM
1969
Turkish
Şırnak
M.N. Girasun
Hanım UTANÇ
1956
Turkish
Şırnak
M.N. Girasun
Hüsnü UTANÇ
1981
Turkish
Şırnak
M.N. Girasun
Ramazan UTANÇ
1988
Turkish
Şırnak
M.N. Girasun
Kıyaseddin UTANÇ
1985
Turkish
Şırnak
M.N. Girasun
Hezar CANER
1960
Turkish
Şırnak
M.N. Girasun
Hayat CANER
1990
Turkish
Şırnak
M.N. Girasun
Haci CANER
1988
Turkish
Şırnak
M.N. Girasun
Mehmet CANER
1987
Turkish
Şırnak
M.N. Girasun
Lale İŞLEK
1978
Turkish
Şırnak
M.N. Girasun
Fatma CANER
1975
Turkish
Şırnak
M.N. Girasun
Ömer CANER
1980
Turkish
Şırnak
M.N. Girasun
Ali CANER
1982
Turkish
Şırnak
M.N. Girasun
Safiye KILIÇ
1949
Turkish
Şırnak
M.N. Girasun
Hekima KILIÇ
1984
Turkish
Şırnak
M.N. Girasun
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