Information Note on the Court’s case-law 228
April 2019
Taşdemir v. Turkey (dec.) - 52538/09
Decision 12.3.2019 [Section II]
Article 37
Article 37-1
Striking out applications
Unilateral declarations containing no undertaking to re-open investigation in cases where such re-opening was de jure or de facto impossible: struck out
[This summary also covers the decisions in Kutlu and Others v. Turkey, 18357/11, and Karaca v. Turkey, 5809/13, 12 March 2019]
Facts – The applicants alleged that their relatives had been unlawfully killed by State agents. In two of the applications (Kutlu and Others and Karaca), the accused had been acquitted on evidential and self-defence grounds respectively. In Taşdemir the criminal proceedings had been discontinued at the appeal stage as they had become time-barred.
In all three cases the Government submitted unilateral declarations acknowledging that there had been a breach of Article 2 and proposing compensation, but containing no undertaking to reopen or to continue the investigations.
Law – Article 37 § 1 (c): In Kutlu and Others the trial court had ordered in its judgment that the prosecutor should be informed of the police officers’ acquittal on evidential grounds so that he or she could take action to find the real perpetrators responsible for the killing of the applicants’ relative. It was therefore possible for the applicants, if they so wished, to request the prosecutor to open a new investigation, in accordance with a recent legislative amendment which allowed the re-opening of an investigation, including in cases where an application had been struck out by the Court on the basis of a unilateral declaration submitted by the Government.
In Taşdemir and Karaca the Court noted that it had previously refused to entertain unilateral declarations without an undertaking by respondent States to conduct an investigation that would comply with Article 2 where the domestic investigation into a disappearance or killing had been prima facie deficient.
There might, however, be situations where it was de jure or de facto impossible to reopen criminal investigations. Such situations might arise, for example, when the alleged perpetrators had been acquitted and could not be put on trial for the same offence, or when the criminal proceedings had become time-barred on account of the statute of limitations in the national legislation. Indeed, a reopening of criminal proceedings which had been terminated on account of the expiry of the statute of limitations could raise issues concerning legal certainty and thus have a bearing on a defendant’s rights under Article 7. In a similar vein, putting the same defendant on trial for an offence for which he or she had already been finally acquitted or convicted could raise issues concerning that defendant’s right not to be tried or punished twice within the meaning of Article 4 of Protocol No. 7.
In addition to the examples of de jure impossibilities, there was a possibility that if a long time had passed since the incident, any evidence might have disappeared, been destroyed or become untraceable and it might therefore in practice no longer be possible to reopen an investigation and conduct it in an effective fashion.
Thus, whether a member State was under an obligation to reopen criminal proceedings, and consequently whether a unilateral declaration should contain such an undertaking, would depend on the specific circumstances of the case, including the nature and the seriousness of the alleged violation, the identity of the alleged perpetrator, whether other persons not involved in the proceedings might have been implicated, the reason why the criminal proceedings had been terminated, the shortcomings and any defects in the criminal proceedings before the decision to bring the criminal proceedings to an end, and whether the alleged perpetrator had contributed to the shortcomings and defects that led to the criminal proceedings being brought to an end.
In Taşdemir, the criminal proceedings against the police officers for failure to stop the applicants’ relative from committing suicide had become time-barred. In Karaca, the village guards had been acquitted of the killing of the applicants’ son on the grounds of self-defence. Moreover, there was no allegation that other individuals had also been involved in the impugned deaths. Consequently, it was de jure impossible, under Turkish law, to reopen a criminal investigation into the deaths of the applicants’ relatives.
In this respect the Court noted that in its Resolution concerning the Grand Chamber’s judgment in Jeronovičs v. Latvia, the Committee of Ministers considered that all the measures required by Article 46 § 1 of the Convention had been adopted and decided to close its investigation, even though the applicant’s request to reopen the investigation had been rejected by the prosecutor on account of the expiry of the limitation period.
The unilateral declaration procedure was an exceptional one. As such, when it came to breaches of the most fundamental rights contained in the Convention, it was not intended either to circumvent an applicant’s opposition to a friendly settlement or to allow a Government to escape their responsibility for such breaches. However, the prevailing issues in Turkey in these kinds of cases had already been examined in the Court’s clear and extensive case-law and had also been sufficiently brought to the attention of the Committee of Ministers and were being followed up under the terms of Article 46 § 2 of the Convention.
Having regard to the admissions contained in the Government’s declarations, the disciplinary punishment imposed on the police officers in Taşdemir and the amount of compensation proposed – which was consistent with the amounts awarded in similar cases –, it was no longer justified to continue the examination of all three applications. That decision was without prejudice to the possibility for the applicants to exercise any other available remedies in order to obtain redress. Should the Government fail to comply with the terms of their unilateral declarations, the applications could be restored to the list in accordance with Article 37 § 2.
Conclusion: struck out.
(See Tahsin Acar v. Turkey (preliminary issue) [GC], 26307/95, 6 May 2003, Information Note 53; and Jeronovičs v. Latvia [GC], 44898/10, 5 July 2016, Information Note 198)
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This summary by the Registry does not bind the Court.
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