SECOND SECTION

DECISION

Application no. 52538/09 Bayram TAÅžDEMÄ°R and others against Turkey

The European Court of Human Rights (Second Section), sitting on 12 March 2019 as a Chamber composed of:

Robert Spano, President, Paul Lemmens, Işıl Karakaş ,

Julia Laffranque, Valeriu Griţco , Jon Fridrik Kjølbro , Stéphanie Mourou-Vikström , judges, and Stanley Naismith, Section Registrar ,

Having regard to the above application lodged on 18 September 2009,

Having regard to the declaration submitted by the respondent Government on 23 January 2018 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 is set out in the appendix.

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

3. Ä°lkay TaÅŸdemir , the son of the first two applicants and the sibling of the remaining applicants, lost his life on 6 August 2002 after falling from a window on the fourth floor of the Gayrettepe police station in Istanbul, where he had been taken after his arrest. A complaint by the applicants to the public prosecutor ’ s office to the effect that their relative had been ill ‑ treated and killed was rejected by a prosecutor who considered that the applicants ’ relative had taken his own life. Subsequently, a number of police officers were put on trial for neglecting their duties by failing to stop the applicants ’ relative from committing suicide. They were acquitted on the grounds of lack of sufficient evidence. While the examination of the appeal lodged by the applicants against the police officers ’ acquittal was pending before the Court of Cassation, the criminal proceedings became time-barred and were discontinued.

4. Disciplinary proceedings were also conducted against the relevant police officers in connection with the incident. At the end of the investigation the police officers were found to have committed, among other disciplinary offences, the offence of negligence in the assessment and performance of their duties. They were subjected to a penalty of short-term suspension of their rights for a period of six months.

5. The Government were given notice of the application .

THE LAW

6. The applicants complained under Article 2 of the Convention, among other Articles, that the authorities of the respondent State had acted negligently and had therefore failed to protect their relative ’ s right to life.

7. After the failure of attempts to reach a friendly settlement, the Government informed the Court by a letter of 23 January 2018 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.

The declaration read as follows:

“The Government regret the occurrence of individual cases of death in police custody caused by failures to protect life, as in the circumstances of the present case, notwithstanding existing Turkish legislation and the resolve of the Government to prevent such failures.

The Government admit that the death of the applicants ’ relative resulting from the failure to provide protective measures and the judicial proceedings concerning the death did not meet the standards enshrined in Article 2 of the Convention. The Government undertake to adopt all necessary measures to ensure that the right to life – including the obligation to conduct such proceedings effectively – is respected in the future.

The Government of Turkey declare that they offer to pay jointly to the applicants Sevim TaÅŸdemir , Bayram TaÅŸdemir , Ä°lknur TaÅŸdemir , Turgay TaÅŸdemir , Tuncay TaÅŸdemir , Turgut TaÅŸdemir and Umut TaÅŸdemir , with a view to securing an unilateral declaration of the above-mentioned case pending before the European Court of Human Rights, EUR 20,000 (twenty thousand euros) to cover any and all non ‑ pecuniary damage and costs and expenses, plus any tax that may be chargeable to the applicants.

These sums 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 taken by the Court to strike the case out of its list of cases. In the event of failure to pay these sums 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.”

8. By a letter of 7 March 2018 the applicants indicated that they were not satisfied with the terms of the unilateral declaration, on the grounds that similar violations were still taking place at police stations in Turkey where suspects were being detained and that no measures were being taken to prevent them, and that the judicial and administrative response to such incidents was unsatisfactory.

9. The Court re iterates 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 paragraph 1 (a), (b) or (c) 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”.

10. The Court 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.

11. To this end, the Court has examined the declaration in the light of the principles emerging from its case-law, and in particular from the Tahsin Acar judgment (see Tahsin Acar v. Turkey (preliminary issue) [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI; see also Jeronovičs v. Latvia [GC], no. 44898/10 , 5 July 2016 ).

12. The Court notes that the subject matter of the present application concerns, firstly, the member States ’ positive obligation to take steps to protect the right to life (see L.C.B. v. the United Kingdom , 9 June 1998, § 36, Reports of Judgments and Decisions 1998 ‑ III). With specific reference to the subject matter of the present application, in a number of its judgments the Court has examined allegations of failure to protect the right to life of detainees in Turkey (see, inter alia , Kılavuz v. Turkey , no. 8327/03, §§ 87 ‑ 97, 21 October 2008, and ÇoÅŸelav v. Turkey , no. 1413/07, § 53, 9 October 2012). Secondly, the case concerns the obligation under Article 2 of the Convention to carry out effective investigations (see, inter alia , Mustafa Tunç and Fecire Tunç v. Turkey [GC], no. 24014/05 , § 169, 14 April 2015, and the case cited therein).

15. In addition to the examples of de jure impossibility mentioned in the preceding paragraph, the Court can likewise not overlook the possibility that if a long time has passed since the incident took place, evidence might have disappeared, been destroyed or become untraceable and it may therefore no longer be possible in practice to reopen an investigation and conduct it in an effective fashion.

16. Thus, whether a member State is under an obligation to reopen criminal proceedings, and consequently whether a unilateral declaration should contain such an undertaking, will depend on the specific circumstances of the case, including the nature and seriousness of the alleged violation, the identity of the alleged perpetrator, whether other persons not involved in the proceedings may have been implicated, the reason why the criminal proceedings were terminated, any shortcomings and defects in the proceedings prior to the decision to bring them to an end, and whether the alleged perpetrator contributed to the shortcomings and defects that led to the criminal proceedings being brought to an end.

17. Turning to the circumstances of the present case the Court notes that, although the unilateral declaration contains an express acknowledgment by the Government that the death of the applicants ’ relative resulted from the failure to take protective measures and that the judicial proceedings concerning the death did not meet the standards enshrined in Article 2 of the Convention , it does not contain any undertaking by the Government to reopen the investigation into the death. The question therefore remains whether, in the absence of such an undertaking, the Court can accept the Government ’ s unilateral declaration.

18. The Court observes that the criminal proceedings brought against the police officers for neglecting their duties by failing to stop the applicants ’ relative from committing suicide became time-barred and were discontinued (see paragraph 3 above). It is therefore de jure impossible, under Turkish law, to reopen a criminal investigation into the death of the applicants ’ relative. Moreover, it was not alleged that other individuals had also been involved in the death of the applicants ’ relative.

19. The Court notes that the fact that it may be de jure impossible to reopen proceedings in cases concerning complaints under Articles 2 and 3 of the Convention is not, in principle, an impediment to the closure by the Committee of Ministers of its examination of the case under Article 46 of the Convention. For example, following the Grand Chamber ’ s finding of a violation of the procedural aspect of Article 3 of the Convention in the case of Jeronovičs , cited above, the applicant requested the national prosecutor to reopen the investigation into his allegations. His request was rejected on account of the expiry of the statute of limitations. I n its Resolution concerning the Grand Chamber ’ s judgment the Committee of Ministers considered that all the measures required by Article 46 § 1 of the Convention had been adopted, and decided to close its examination of the case (see Resolution CM/ ResDH (2017)312).

20. Having regard to the above-mentioned acknowledgment of responsibility by the Government, the disciplinary punishment imposed on the police officers (see paragraph 4 above) and the amount of compensation proposed by the Government in their unilateral declaration, namely 20,000 euros, coupled with the clear and extensive case ‑ law on the topic, referred to above (see paragraph 12), the Court considers that it is no longer justified to continue the examination of the application (Article 37 § 1 (c)). The Court stresses that its decision is without prejudice to the possibility for the applicant to exercise any other available remedies in order to obtain redress (see Jeronovičs v. Latvia ( dec. ), no. 547/02 , § 54, 10 February 2009, and, mutatis mutandis , Jeronovičs , cited above , §§ 116 ‑ 18 ).

22. In the light of the above considerations, and in particular given the clear and extensive case-law on the topic, referred to above, 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 ). In particular , the Court considers that the nature and extent of the obligations arising under the Convention for the respondent State in cases of alleged failure to protect the right to life of detainees have already been specified in a number of its judgments (see, mutatis mutandis , Tahsin Acar , cited above, § 81). Furthermore, the aforementioned issues prevailing in Turkey have also been brought sufficiently to the attention of the Committee of Ministers and are being followed up under the terms of Article 46 § 2 of the Convention.

23. 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 (see Josipović v. Serbia ( dec. ), no. 18369/07, 4 March 2008).

For these reasons, the Court, unanimously,

Takes note of the terms of the respondent Government ’ s declaration under Article 2 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 4 April 2019 .

Stanley Naismith Robert Spano Registrar President

Appendix

No.

Firstname LASTNAME

Birth year

Nationality

Place of residence

Representative

Bayram TAÅžDEMÄ°R

1946Turkish

TEKÄ°RDAÄž

G. Tuncer

Sevim TAÅžDEMÄ°R

1963Turkish

TEKÄ°RDAÄž

G. Tuncer

Ä°lknur TAÅžDEMÄ°R

1980Turkish

TEKÄ°RDAÄž

G. Tuncer

Tuncay TAÅžDEMÄ°R

1984Turkish

TEKÄ°RDAÄž

G. Tuncer

Turgay TAÅžDEMÄ°R

1986Turkish

TEKÄ°RDAÄž

G. Tuncer

Turgut TAÅžDEMÄ°R

1991Turkish

TEKÄ°RDAÄž

G. Tuncer

Umut TAÅžDEMÄ°R

1996Turkish

TEKÄ°RDAÄž

G. Tuncer