SECOND SECTION
DECISION
Applications nos. 45095/18 and 27066/19
Hikmet YALÇIN against Turkey
and Taner AYKUT against Turkey
(see appended table)
The European Court of Human Rights (Second Section), sitting on 28 May 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 applications lodged on the various dates indicated in the appended table,
Having regard to the declarations submitted by the respondent Government requesting the Court to strike the applications 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.
The applicants were represented by Mr Cavit Çalış, a lawyer practising in Ankara.
The applicants’ complaints under Article 6 § 1 of the Convention concerning the independence and impartiality of the Supreme Military Administrative Court were communicated to the Turkish Government (“the Government”).
THE LAW
Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.
The Government informed the Court that they proposed to make unilateral declarations with a view to resolving the issues raised by these complaints. They further requested the Court to strike out the applications in accordance with Article 37 of the Convention
The Government explicitly acknowledged in their unilateral declaration a violation of Article 6 § 1 of the Convention on account of the independence and impartiality of the military courts. They offered to pay the applicants the amounts detailed in the appended table and invited the Court to strike the applications out of the list of cases in accordance with Article 37 § 1 (c) of the Convention. The amounts would be converted into the currency of the respondent State at the rate applicable on the date of payment, and would be payable within three months from the date of notification of the Court’s decision. In the event of failure to pay these amounts within the above-mentioned three-month period, the Government undertook to pay simple interest on them, from the 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 before the European Court of Human Rights.
The applicants were sent the terms of the Government’s unilateral declarations on 23 September 2019 and 14 February 2020 respectively. The Court has received responses from them refusing the terms of the declarations as they found the amounts offered by the Government too low given their complaints.
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 cases 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 clear and extensive case-law concerning complaints relating to the independence and impartiality of the Supreme Military Administrative Court under Article 6 § 1 of the Convention (see, for example, Tanışma v. Turkey, no. 32219/05, 17 November 2015).
Noting the admissions contained in the Government’s declarations 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)).
The Court would like to draw attention to the fact that on 31 July 2018 the Turkish Law No. 7145 entered into force. Articles 4, 17, 18 and 19 of this new law provide for a right to request the reopening of domestic court proceedings or the investigation following the Court’s decision to strike out a case on the basis of a friendly settlement or unilateral declaration. According to the Court’s case‑law and practice, the reopening of the domestic proceedings is the most appropriate way to provide an effective solution to an alleged breach. In this connection, 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.
The Court further notes that the Supreme Military Administrative Court is abolished as of 16 April 2017 (see Baysal v. Turkey (dec.), no. 29698/11, 22 May 2018) and a request may be made before the Ankara Administrative Court for the reopening of the impugned proceedings.
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 applications (Article 37 § 1 in fine).
Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declarations, the applications 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 cases out of the list.
For these reasons, the Court, unanimously,
Decides to join the applications;
Takes note of the terms of the respondent Government’s declarations and of the arrangements for ensuring compliance with the undertakings referred to therein;
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 18 June 2020.
Liv TigerstedtIvana Jelić
Acting Deputy RegistrarPresident
APPENDIX
List of applications raising complaints under Article 6 of the Convention
(Independent and impartial court)
No.
Application no.
Date of introduction
Applicant’s name
Date of birth
Date of receipt of Government’s declaration
Date of receipt of
applicant’s comments
Amount awarded for pecuniary
and non-pecuniary damage
and costs and expenses
per applicant
(in euros)[1]
45095/18
12/09/2018
Hikmet YALÇIN
01/04/1985
13/09/2019
25/11/2019
1,200
27066/19
02/05/2019
Taner AYKUT
03/04/1990
12/02/2020
18/02/2020
1,200
[1] Plus any tax that may be chargeable to the applicants.
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