SECOND SECTION
DECISION
Application no. 32841/09
İskender TUTAR against Turkey
and 11 other applications
(see list appended)
The European Court of Human Rights (Second Section), sitting on 28 May 2019 as a Committee composed of:
Julia Laffranque, President,
Ivana Jelić,
Arnfinn Bårdsen, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above applications lodged on the various dates indicated in the appended table,
Having regard to the declaration submitted by the respondent Government on 18 February 2009 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. A list of the applicants is set out in the appendix.
2. The Turkish Government (“the Government”) were represented by their Agent.
3. The applicants complained under Article 6 of the Convention that they had been denied the assistance of a lawyer during the initial stages of the criminal proceedings, and that their convictions were based on the statements they had made to the police in the absence of a lawyer and under alleged duress. The applicants further maintained that they had been denied a fair trial by an independent and impartial tribunal as required by Article 6 § 1 of the Convention due to the presence of a military judge in the composition of the trial court at the initial stage of the trial.
4. The applications were communicated to the Government under Article 6 §§ 1 and 3 of the Convention.
5. After unsuccessful friendly-settlement negotiations, by a letter dated 18 February 2019 the Government informed the Court that they proposed to make declarations with a view to resolving the issues raised by the applications.
6. The separate declarations that they submitted in respect of each applicant provided as follows:
“The Government of Turkey acknowledge that in the present case there has been a violation of the applicant’s rights under Articles 6 §§ 1 and 3 of the Convention in the light of the well-established case-law of the Court.
The Government also recalls that Law no. 4928 on 15 July 2003 repealed the provision concerning the systemic restriction on the right of access to a lawyer.
The Government further emphasises that Article 311 § 1 (f) of the Code on Criminal Procedure, as amended by Law no.7145 of 31 July 2018, now requires reopening of criminal 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 applicants’ complaints under Article 6 of the Convention.
The Government thus offers, by this unilateral declaration, to pay the applicant, EUR 500 (five hundred euros) to cover any pecuniary and non-pecuniary damage as well as costs and expenses, plus any tax that may be chargeable to the applicants with a view to resolving the above-mentioned case pending before the European Court of Human Rights.
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 by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, 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.”
7. On the various dates indicated in the appended table, the Court received letters from the applicants informing the Court that they had agreed to the terms of the Government’s declaration.
THE LAW
8. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.
9. Having regard to the applicants’ complaints under Article 6 §§ 1 and 3 of the Convention in so far as they relate to the systemic restriction on their right of access to a lawyer and the use of evidence obtained in the absence of a lawyer and under alleged duress to convict them, the Court finds that following the applicants’ express agreement to the terms of the declaration made by the Government the case should be treated as a friendly settlement between the parties.
10. It therefore takes note of the friendly settlement reached between the parties in so far as it relates to the above complaints. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no reasons to justify a continued examination of the applications.
11. The Court would like to draw attention to the fact that on 25 July 2018 the Turkish Parliament has adopted Law no.7145. Articles 4, 17, 18 and 19 of this new law provide for a right to request the re-opening of domestic court proceedings following the Court’s decision to strike out a case on the basis of a friendly settlement or unilateral declaration. In particular, according to the Court’s case-law and practice, the re-opening of the domestic proceedings is the most appropriate way to provide an effective solution to an alleged breach of Article 6 of the Convention. Thus, it is considered that the aforementioned remedy is capable of providing redress in respect of the applicants’ complaints under Article 6 of the Convention. Bearing in mind the Court’s subsidiary role in protecting the rights and freedoms guaranteed by the Convention and its protocols, it is recalled that it falls in the first place to the national authorities to redress any violation of the Convention.
12. In view of the above, it is appropriate to strike the case out of the list in so far as it relates to the above complaints.
13. Relying on Articles 6 § 1 of the Convention, the applicants also complained that they had not been tried by an independent and impartial tribunal due to the presence of a military judge in the composition of the Diyarbakır State Security Court at the initial stage of the trial.
14. Having examined these complaints in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols (see İzzet Çelik v. Turkey, no. 15185/05, § 33, 23 January 2018, and Kabasakal and Atar v. Turkey, nos. 70084/01 and 70085/01, § 34, 19 September 2006).
15. It follows that this part of the applications is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Decides to join the applications;
Decides to strike the complaints under Article 6 §§ 1 and 3 of the Convention out of its list of cases pursuant to Article 39 of the Convention;
Declares the remainder of the applications inadmissible.
Done in English and notified in writing on 20 June 2019.
Hasan Bakırcı Julia Laffranque
Deputy RegistrarPresident
APPENDIX
No.
Application no.
Lodged on
Applicant
Date of birth
Place of residence
Represented by
Dates of the applicants’ letters agreeing to the terms of the Government’s declaration
1
32841/09
18/05/2009
İskender TUTAR
22/12/1975
Diyarbakır
02/04/2019
2
35788/09
04/06/2009
Mehmet Ali ENEZE
04/02/1974
Diyarbakır
02/04/2019
3
35796/09
22/05/2009
Şahin YAPICI
16/08/1975
Diyarbakır
02/04/2019
4
35801/09
22/05/2009
Mehmet Zeki İNAL
01/01/1974
Diyarbakır
02/04/2019
5
35808/09
21/05/2009
Sıdık KURT
01/01/1976
Diyarbakır
02/04/2019
6
35824/09
15/06/2009
Mustafa SEVİM
01/05/1972
Diyarbakır
02/04/2019
7
35831/09
15/06/2009
Kasım ERKAN
01/01/1974
Diyarbakır
27/03/2019
8
38749/09
01/07/2009
Mahsum NAZLİ
01/03/1974
Diyarbakır
09/04/2019
9
38756/09
26/06/2009
Mustafa DEMİR
11/04/1973
Diyabakır
02/04/2019
10
47700/09
24/08/2009
Tamer GEZER
01/08/1972
Adıyaman
25/03/2019
11
49015/09
18/08/2009
Veysi ÜLSEN
10/02/1968
Istanbul
27/03/2019
12
49026/09
20/08/2009
Güro ADEM
01/01/1972
Şanlıurfa
Mirhan ÖZBEKLİ
02/04/2019
Full & Egal Universal Law Academy