SECOND SECTION
DECISION
Applications nos. 29026/09 and 29042/09
Zeydin SUMER against Turkey
and Hekim SUMER against Turkey
The European Court of Human Rights (Second Section), sitting on 22 January 2019 as a Committee composed of:
Julia Laffranque, President,
Valeriu Griţco,
Stéphanie Mourou-Vikström, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above applications lodged on 11 May 2009,
Having regard to the declarations submitted by the respondent Government on 17 October 2018 requesting the Court to strike the applications out of the list of cases and the applicants’ reply to that declaration,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
1. The applicant in the first case, Mr Zeydin Sumer, is a Turkish national, who was born in 1983 and lives in Hakkari. The applicant in the second case, Mr Hekim Sumer, is a Turkish national, who was born in 1987 and lives in Hakkari. They were represented before the Court by Mr F. Timur, a lawyer practising in Hakkari.
2. The Turkish Government (“the Government”) were represented by their Agent.
3. The applications had been communicated to the Government.
THE LAW
4. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.
5. The applicants complained under Article 6 § 1 of the Convention that they were denied access to a court on account of the Supreme Military Administrative Court’s refusal to grant them legal aid to pay the court fees.
6. After the failure of attempts to reach a friendly settlement, by a letter of 17 October 2018 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by the applications. They further requested the Court to strike out the applications in accordance with Article 37 of the Convention.
Each declaration provided as follows:
“I declare that the Government of Turkey offer to pay the applicant 2500 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 cases pending before the European Court of Human Rights.
This sum wilt 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 these sums within the said three‑month period, the Government undertake to pay simple interest on then։, 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 cases.
The Government consider that the inability of the applicant to access to a court on account of the Supreme Military Administrative Court’s refusal to grant him legal aid to pay the court fees, breached his right to a fair trial in the light of the well‑established case-law of the Court (İlbeyi Kemaloğlu and Meriye Kemaloğlu v. Turkey, no. 19986/06, 10 April 2012). The Government further emphasises that Article 53 § 1 (i) of the Code of Administrative Procedure, as amended by Law no. 7l45 of 31 July 2018, now requires reopening of administrative court 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 applicant’s complaints under Article 6 of the Convention.”
7. By letters of 13 November 2018, both applicants’ representative indicated that they were not satisfied with the terms of the unilateral declaration.
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 applications”.
9. It also reiterates that in certain circumstances, it may strike out an applications 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 cases 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; 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).
11. The Court has established in a number of cases, including those brought against Turkey, its practice concerning complaints about the applicants’ right of access to a court on account of court’s refusal to grant them legal aid to pay the court fees (see, for example, (İlbeyi Kemaloğlu and Meriye Kemaloğlu v. Turkey, no. 19986/06, 10 April 2012).
12. 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 applications (Article 37 § 1 (c)).
13. 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 applications (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 cases out of the list.
For these reasons, the Court, unanimously,
Takes note of the terms of the respondent Government’s declaration under Article 6 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;
Decides to join the applications;
Decides to strike the applications out of its list of cases in accordance with Article 37 § 1 (c) of the Convention.
Done in English and notified in writing on 14 February 2019.
Hasan BakırcıJulia Laffranque
Deputy RegistrarPresident
Full & Egal Universal Law Academy