TORSUN A OSTATNÍ proti Turecku

SECOND SECTION

DECISION

Application no. 44411/07
Kerem TORSUN and others
against Turkey

The European Court of Human Rights (Second Section), sitting on 2 July 2019 as a Committee composed of:

Valeriu Griţco, President,
Egidijus Kūris,
Darian Pavli, judges,

and Hasan Bakırcı, Deputy Section Registrar,

Having regard to the above application lodged on 2 October 2007,

Having regard to the declaration submitted by the respondent Government on 5 February 2019 requesting the Court to strike the application 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, who are all Turkish nationals, is set out in the appendix. They were represented before the Court by Mr D. Aslan, a lawyer practicing in Van.

2. The Turkish Government (“the Government”) were represented by their Agent.

3. The applicants are the relatives of Ö.Ö., K.T. and S.Ö. who had an accident in a minefield on the Islamic Republic of Iran side of the Turkish/Iranian border.

4. Following the accident of 29 October 2005, which caused the death of Ö.Ö. and the wounding of K.T. and S.Ö., who were all minors at the time, the applicants initiated compensation proceedings against the Ministry of Interior. In their petition, they argued that the accident had been caused because the authorities had not taken the necessary precautions on the border. The applicants also requested legal aid for court fees, and submitted a certificate attesting to their poor financial situation.

5. On 14 February 2007 the Van Administrative Court decided that the applicants did not qualify for legal aid. They were thus notified that they had to pay 5,225 Turkish liras (TRY) (approximately 2,900 euros (EUR)) in court fees. The applicants were requested to make the relevant payment within one month and warned that failure to do so would result in the discontinuation of the proceedings.

6. On 7 September 2007 the court decided to discontinue the compensation proceedings because the applicants had not paid the necessary court fees.

7. The application had been communicated to the Government under Article 6 of the Convention.

THE LAW

8. The applicants complained that they had been denied access to a court on account of the domestic courts’ refusal to grant them legal aid to pay the court fees. They relied on Article 6 of the Convention.

9. After the failure of attempts to reach a friendly settlement, by a letter of 5 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.

10. The declaration provided as follows:

“I declare that the Government of Turkey offer to pay the applicants, jointly a total of 2,500 euros to cover any pecuniary and non-pecuniary damage, plus any tax that may be chargeable to the applicants with a view to resolving the above-mentioned cases 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 of the Court pursuant to Article 37 § 1 of the European Convention of 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 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 Government consider that the inability of the applicants to access to a court on account of the Van Administrative Court’s refusal to grant them legal aid to pay the court fees, breached their right to a fair trial in the light of the well-established case-law of the Court (Ilbeyi Kemaloğlu and Meriye Kemaloğlu v. Turkey, no. 19986/06, 10 April 2012). The Government further emphasise that Article 53 § 1 of the Code of Administrative Procedure, as amended by Law no. 7145 of 31 July 2018, now requires the reopening of the administrative court 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 consider that the aforementioned remedy is capable of providing redress in respect of the applicant’s complaints under Article 6 of the Convention.

The Government respectfully invite the Court to declare that it is no longer justified to continue the examination of the application and to strike it out of its list of cases in accordance with Article 37 of the Convention.”

11. By a letter of 8 March 2019, the applicants indicated that they were not satisfied with the terms of the unilateral declaration.

12. 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”.

13. 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 applicants wish the examination of the case to be continued.

14. 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).

15. The Court has established in a number of cases, including those brought against Turkey, its practice concerning complaints about the refusal of the authorities to grant legal aid (see, for example, Ilbeyi Kemaloğlu and Meriye Kemaloğlu v. Turkey, no. 19986/06, 10 April 2012).

16. 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)).

17. 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).

18. 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.

19. 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).

20. 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 Bakırcı Valeriu Griţco
Deputy Registrar President

Appendix