ALSAÇ proti Turecku

SECOND SECTION

DECISION

Application no. 3666/11
Hasan ALSAÇ
against Turkey

The European Court of Human Rights (Second Section), sitting on 3 June 2021 as a Committee composed of:

Branko Lubarda, President,
Pauliine Koskelo,
Marko Bošnjak, judges,

and Viktoriya Maradudina, Acting Deputy Section Registrar,

Having regard to the above application lodged on 30 November 2010,

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 applicant’s details are set out in the appended table.

The applicant was represented by Mr A. Pehlivan, a lawyer practising in Istanbul.

The applicant’s complaints under Article 6 §§ 1 and 3 (a), (b), (c) and (d) of the Convention concerning the domestic courts’ alleged failure to (i) indicate the reasons to convict him, (ii) secure his presence at one of the hearings due to lack of budgetary funds, (iii) serve on him the bill of indictment, (iv) grant him additional time to prepare his defence, (v) ensure that officially-appointed lawyers provide him with effective legal assistance, (vi) to respect his right to examine the witnesses against him were communicated to the Turkish Government (“the Government”).

THE LAW

A. As regards the complaints concerning the alleged lack of reasoning

The applicant complained that the domestic courts had failed to give sufficient reasons for his conviction.

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 acknowledge that in the present case there has been a violation of the applicant’s rights under Articles 6 §§ l and 3 of the Convention in the light of the well-established case-law of the Court.

The Government also emphasizes that Article 311 § 1 (f) of the Code on Criminal procedure, as amended by Law no.7145 of 3l 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 applicant’s complaints under Article 6 of the Convention.

The Government thus offer to pay the applicant Hasan ALSAÇ, 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 applicant 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 § l of the European Convention on Human Rights. ln 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 before the European Court of Human Rights.”

The applicant was sent the terms of the Government’s unilateral declaration on 4 December 2019. By a letter of 6 January 2020, the applicant rejected the Government’s unilateral declaration alleging that he had been sentenced to life imprisonment as a result of criminal proceedings which had clearly and gravely infringed his right to a fair trial.

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 applicant wishes the examination of the case to be continued (see, in particular, the Tahsin Acar v. Turkey judgment (preliminary objections) [GC], no. 26307/95, §§ 75‑77, ECHR 2003-VI).

The Court has established clear and extensive case-law concerning the complaint relating to lack of adequate reasoning under Article 6 §1 of the Convention (see, for example, Vetrenko v. Moldova, no. 36552/02, § 55, 18 May 2010, and Ajdarić v. Croatia, no. 20883/09, § 51, 13 December 2011).

The Court would further 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.

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 this part of the application (Article 37 § 1 (c)) (see Ayetullah Ay v. Turkey, nos. 29084/07 and 1191/08, § 203, 27 October 2020).

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 this part of the application (Article 37 § 1 in fine).

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 (see 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 in so far as it relates to the above complaint.

B. As regards the remainder of the complaints under Article 6 of the Convention

The Government argued that the applicant had failed to exhaust domestic remedies in respect of his remaining complaints under Article 6 of the Convention in that he had failed to raise them before the Court of Cassation.

The applicant argued that he had exhausted all domestic remedies available to him before lodging the present application.

The Court notes that the applicant failed to raise the remainder of his complaints before the Court of Cassation (see, among many other authorities, Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 75, 25 March 2014, and Yıldız v. Turkey (dec.) [Committee], no. 59241/10, §§ 15-19, 14 January 2020).

It follows that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

For these reasons, the Court, unanimously,

Takes note of the terms of the respondent Government’s declaration under Article 6 §§ 1 and 3 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;

Decides to strike that part of the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention in so far as it relates to the complaints concerning the lack of adequate reasoning;

Declares the remainder of the application inadmissible.

Done in English and notified in writing on 24 June 2021.

{signature_p_2}

Viktoriya Maradudina Branko Lubarda
Acting Deputy Registrar President

APPENDIX

Application raising complaints under Article 6 § 1 of the Convention
(lack of adequate reasoning)

[1] Plus any tax that may be chargeable to the applicant