SECOND SECTION
DECISION
Application no. 68023/12
Mesut YORULMAZ
against Turkey
The European Court of Human Rights (Second Section), sitting on 2 July 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 application lodged on 31 August 2012,
Having regard to the declaration submitted by the respondent Government on 27 February 2019 requesting the Court to strike the application out of the list of cases,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
1. The applicant, Mr Mesut Yorulmaz, is a Turkish national, who was born in 1976 and lives in Şırnak. He was represented before the Court by Mr S. Çalkan, a lawyer practising in Ankara.
2. The Turkish Government (“the Government”) were represented by their Agent.
3. The applicant complained under Article 6 of the Convention about the independence and impartiality of the Bursa Military Disciplinary Court which tried and convicted him (decision of 9 December 2011, nos.2011/330E, 2011/330K).
4. The application had been communicated to the Government.
THE LAW
5. The applicant complained about the independence and impartiality of the Bursa Military Disciplinary Court. He relied on Article 6 of the Convention.
6. After the failure of attempts to reach a friendly settlement, by a letter of 27 February 2019 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.
7. The declaration provided as follows:
“I declare that the Government of Turkey offer to pay the applicant, Mr Mesut Yorulmaz, EUR 500 (five hundred euros) to cover any pecuniary and non-pecuniary damage and any cost and expenses, plus any tax that may be chargeable to the applicant with a view to resolving the case pending before the European Court of Human rights.
This sum will be converted into the currency of the respondent state 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 İts 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 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.
The Government acknowledge that the military disciplinary court which had tried and convicted the applicant could not be considered to have been an independent and impartial tribunal within the meaning of Article 6 of the Convention (see Veyisoğlu v. Turkey, no. 27341/02, 26 June 2007).”
8. The Court reiterates that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified, under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular 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”.
9. It also reiterates that in certain circumstances, it may strike out an application under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued.
10. To this end, the Court has examined the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (Tahsin Acar v. Turkey (preliminary objections) [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI; WAZA Sp. z o.o. v. Poland (dec.), no. 11602/02, 26 June 2007; and Sulwińska v. Poland (dec.), no. 28953/03, 18 September 2007).
11. The Court has established in a number of cases, including those brought against Turkey, its practice concerning complaints about the violation of the independence and impartiality of the Military Disciplinary Courts (for example, Veyisoğlu v. Turkey, no. 27341/02, 26 June 2007).
12. Having regard to the nature of 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)).
13. Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the topic, 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).
14. The Court considers that this amount should be converted into Turkish liras at the rate applicable at the date of payment, and paid within three months from the date of notification of the Court’s decision issued in accordance with Article 37 § 1 of the European Convention on Human Rights. In the event of failure to settle within this period, simple interest shall be payable on the amount in question at a rate equal to the marginal lending rate of the European Central Bank plus three percentage points.
15. The Court further observes that in 2013 the composition of the military disciplinary courts has been amended. It would also 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. 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.
16. Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the application could be restored to the list in accordance with Article 37 § 2 of the Convention (Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008).
17. 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 under Article 6 of the Convention and of the modalities 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 5 September 2019.
Hasan BakırcıJulia Laffranque
Deputy RegistrarPresident
Full & Egal Universal Law Academy