Tahsin Acar v. Turkey (preliminary issue) [GC]

Avrupa İnsan Hakları Mahkemesi

Karar Metni

Information Note on the Court’s case-law 53

May 2003

Tahsin Acar v. Turkey (preliminary issue) [GC] - 26307/95

Judgment 6.5.2003 [GC]

Article 37

Article 37-1

Striking out applications

Government’s request to strike the application out of the list following a unilateral declaration:request dismissed

Facts – The applicant’s brother was abducted in 1994 by two men in plain clothes claiming to be police officers and has been missing since. The applicant and his family submitted petitions and complaints to the authorities, but to no avail. In January 1997 the Provinicial Administrative Council decided not to take any proceedings against two gendarmes and a village guard. Several of the applicant’s relatives claim that in 2000 they saw his brother on television among a group of persons who had been apprehended. The prosecution authorities maintained that the individual in question, despite having a similar name, was not the applicant’s brother.

In August 2001, the Turkish Government submitted to the Court a declaration in which they offered to make an ex gratia payment of 70,000 pounds sterling to the applicant, covering any pecuniary and non-pecuniary damage as well as costs, and made a statement of regret with regard to the occurrence of the actions which had led to the bringing of the application, in particular the disappearance of the applicant’s brother and the anguish caused to his family. Furthermore, the Government accepted that unrecorded deprivations of liberty and insufficient investigations into allegations of disappearance constituted violations of the Convention and undertook to issue appropriate instructions and to adopt all necessary measures with a view to ensuring that all deprivations of liberty are fully and accurately recorded and that effective investigations into alleged disappearances are carried out. On that basis, the application was struck out of the list of cases in a judgment of 9 April 2002, notwithstanding the applicant’s request that the Court continue its examination of the case.

Law

Scope of the case – While the Court had full jurisdiction to examine the case as declared admissible, it considered it appropriate in the particular circumstances to limit its examination at this stage, and without prejudice to the merits, to the question whether the Government’s unilateral declaration offered a sufficient basis for holding that it was no longer justified to continue the examination of the case.

Article 37 § 1 (c): The Court proceeded on the basis of the Government’s unilateral declaration and the parties’ observations submitted outwith the framework of confidential friendly settlement negotiations, and disregarded statements made in the context of such negotiations and the reasons for a settlement not being reached. While under certain circumstances it may be appropriate to strike out an application on the basis of a unilateral declaration, despite the applicant’s wish for the examination of the case to be continued, it will depend on the particular circumstances whether the declaration offers a sufficient basis for doing so. Relevant factors include the nature of the complaints, whether the issues raised are comparable to issues already determined by the Court in previous cases, the nature and scope of any measures taken in the context of the execution of judgments in such cases, and the impact of these measures on the case at issue. It may also be material to what extent the facts are in dispute and what prima facie evidentiary value is to be attributed to the parties’ submissions on the facts, and in that connection it will be of significance whether the Court has taken evidence in the case. Other relevant factors may include the scope of any admissions made in the declaration and the manner in which the Government intends to provide redress and, depending on the circumstances of each case, further considerations may come into play. As to the present case, firstly the facts were largely in dispute. Secondly, although the Government had agreed to add “such as in the present case” to the declaration, with reference to the acknowledgement of unrecorded deprivations of liberty and insufficient investigations into allegations of disappearance constituting violations of Articles 2, 5 and 13, they had subsequently made firm submissions to the effect that the declaration could in no way be interpreted as entailing any admission of responsibility or liability for any violation of the Convention, thereby negating the admission of liability contained in the declaration. Thirdly, the declaration differed in a number of crucial respects from that in Akman v. Turkey, in which case it had not been disputed that the applicant’s son had been killed by the security forces and it had been conceded that the death had resulted from the use of excessive force. Moreover, the Government had already adopted or undertaken to adopt specific measures designed to prevent in future the shortcomings identified by the Court. In the present case, the declaration did not adequately address the applicant’s grievances under the Convention: no reference was made to any measures to deal with his specific complaints, the Government merely undertaking a general obligation to pursue their efforts to prevent future disappearances, without regard to what pertinent and practicable measures might be called for in the present case. Although a full admission of liability could not be regarded as a condition sine qua non for striking out an application on the basis of a unilateral declaration, in cases concerning disappearances or killings by unknown perpetrators where there was prima facie evidence supporting allegations that the domestic investigation fell short of what is necessary under the Convention, a unilateral declaration should at the very least contain an admission to that effect, combined with an undertaking to conduct a proper investigation. As the declaration in the present case contained neither any such admission nor any such undertaking, respect for human rights required that the examination of the case be pursued and the application could not be struck out.

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