SECOND SECTION
DECISION
Application no. 50004/11
Fatma TUTA and Others against Turkey
(see appended table)
The European Court of Human Rights (Second Section), sitting on 30 April 2020 as a Committee composed of:
Ivana Jelić, President,
Arnfinn Bårdsen,
Darian Pavli, judges,
and Liv Tigerstedt, Acting Deputy Section Registrar,
Having regard to the above application lodged on 31 May 2011,
Having regard to the declaration submitted by the respondent Government requesting the Court to strike the application out of the list of cases,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
The list of applicants is set out in the appended table. On 27 February 2019 the applicants’ representative informed the Court that two of the applicants, namely Mr Ali Kaya and Ms Asiya Kerenciler had died and that their heirs, whose names appear in the appended table, expressed their wish to pursue the application in their stead. The Government were informed accordingly. For practical reasons, Mr Ali Kaya and Ms Asiya Krenciler will continue to be called “the applicants” in this decision, although their heirs are now to be regarded as such.
The applicants were represented by Mr O. Gündoğdu, a lawyer practising in Kars.
The applicants complained that they had been shot and injured by police officers during a demonstration in 1993 in Digor and that the ensuing investigation into the incident had been in breach of Articles 2 and 3 of the Convention. The case was communicated to the Turkish Government (“the Government”).
THE LAW
The Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issues raised by these complaints. They further requested the Court to strike out the application in accordance with Article 37 of the Convention
The declaration provided as follows:
“The Government of Turkey regret the occurrence of individual cases of life-threatening injuries, as in the circumstances of the present case, notwithstanding existing Turkish legislation and the resolve of the Government to prevent such actions.
The Government admit that the investigation conducted into the allegations of infringement of right to life did not meet the standards enshrined in Article 2 of the Convention. The Government undertake to adopt all necessary measures to ensure that effective investigations will be carried out in the future.
The Government declare that they offer to pay, with a view to securing a unilateral declaration of the above-mentioned case pending before the European Court of Human Rights EUR 9,000 (nine thousand euros) (EUR) to each of the applicants (see attached list), amounting to a total of EUR 72,000 (seventy two thousand euros) to cover any and all pecuniary and non-pecuniary damage as well as costs and expenses including the lawyer’s fee, plus any tax that may be chargeable.
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 taken by the Court to strike the case out of its list of cases. In the event of failure to pay this sum 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 applicants were sent the terms of the Government’s unilateral declaration several weeks before the date of this decision. The Court has not received a response from the applicants accepting the terms of the declaration.
The Court observes that Article 37 § 1 (c) enables it 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”.
Thus, it may strike out 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 case to be continued (see, in particular, Tahsin Acar v. Turkey (preliminary objections) [GC], no. 26307/95, §§ 75‑77, ECHR 2003-VI).
The Court has established in a number of cases, including those brought against Turkey, its practice concerning complaints about the obligation under Article 2 of the Convention to carry out effective investigations (see, inter alia, Mustafa Tunç and Fecire Tunç v. Turkey [GC], no. 24014/05, § 169, 14 April 2015).
Noting 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 application (Article 37 § 1 (c)).
In the light of the above considerations, 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).
In this connection, the Court notes that section 172 of the Code of Criminal Procedure was amended in July 2018. According to the amendment, applicants in Turkey now have the opportunity to ask the relevant prosecutors to reopen the investigations not only in cases in which the Court has found a violation of the Convention on account of a failure to carry out an effective investigation, but also if their applications have been struck out by the Court on the basis of friendly settlements or on the basis of unilateral declarations submitted by the Government.
Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the application may 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 and of the arrangements 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 22 May 2020.
Liv TigerstedtIvana Jelić
Acting Deputy RegistrarPresident
APPENDIX
Application raising complaints under Articles 2 and 3 of the Convention
(death by security forces, ineffectiveness of investigation)
Application no.
Date of introduction
Applicant’s name
Date of birth
Representative’s name and location
Date of receipt of Government’s declaration
Amount awarded for pecuniary and
non-pecuniary damage and costs and expenses
per applicant
(in euros)[1]
50004/11
31/05/2011
(8 applicants)
Fatma TUTA
01/02/1984
Taşdemir KERENCİLER
15/01/1946
Asiya KERENCİLER
15/04/1944
(Deceased on 05/10/2014)
Pursued by heirs :
Yeter Geçener 20/01/1971
Hayriye Geri 01/03/1963
Naşide Taş 02/01/1971
Bilal Kerenciler 25/02/1975
Murat Kerenciler 01/03/1980
Mevlüt Kerenciler 01/06/1983
Taşdemir Kerenciler 15/01/1946
Nurettin Kerenciler 01/06/1982
Abdulbari Kerenciler 01/06/1985
Abdulhadi Kerenciler 01/02/1987
Güzel ÇALKINSIN
01/01/1940
Ali KAYA
15/07/1951
(Deceased on 17/02/2013)
Pursued by heirs:
Kasım Kaya 26/03/1959
Mehmet Sena Kaya 12/01/1962
Abdurrahman Kaya 01/03/1947
Zeynelabidin ÇETİN
01/01/1962
Tarlan ÇAĞDAVUL
01/03/1958
Fevzi ARAS
01/01/1936
Gündoğdu Onur
Kars
02/01/2020
9,000
[1] Plus any tax that may be chargeable to the applicants.
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