SECOND SECTION

DECISION

Application no . 40872/07 Sevda YAVUZ and others against Turkey

The European Court of Human Rights (Second Section), sitting on 5 June 2012 as a Chamber composed of:

Françoise Tulkens , President, Danutė Jočienė , Dragoljub Popović , Isabelle Berro-Lefèvre , András Sajó , Işıl Karakaş , Guido Raimondi , judges, and Françoise Elens-Passos , Deputy Section Registrar ,

Having regard to the above application lodged on 7 September 2007,

Having regard to the formal declarations accepting a friendly settlement of the case,

Having deliberated, decides as follows:

PROCEDURE

The applicants, Ms Sevda Yavuz , Mr Mehmet Aras and Mr İbrahim Yavuz , are Turkish nationals who were born in 1981, 1928 and 1977 respectively. The first applicant lives in Kars and the remaining two applicants live in Istanbul . They are represented before the Court by Mr T. Elçi , a lawyer practising in Diyarbakır .

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

In 1993, the inhabitants of the Digor District of Kars, including the applicants took part in a demonstration. When the security forces opened fire on the demonstrators, officially seventeen people died and sixty-three were wounded. The applicants were wounded by gunshots.

The applicants complained under Articles 2 and 3 of the Convention that they had been wounded as a result of the disproportionate use of gun fire by the security forces. They also maintained under the procedural aspect of Articles 2 and 3 of the Convention that no effective investigation had been conducted into the circumstances of their wounding. Relying upon Article 13 of the Convention, the applicants stated that the investigation and the ensuing criminal proceedings could not be considered as prompt and effective.

On 21 March 2011 the application was communicated to the respondent Government.

On 22 March 2012 and 2 April 2012 respectively the Court received friendly settlement declarations signed by the parties under which the applicants agreed to waive any further claims against Turkey in respect of the facts giving rise to this application against an undertaking by the Government to pay them EUR 30,000 (ten thousand euros each to Ms Sevda Yavuz , Mr Mehmet Aras and Mr Ä°brahim Yavuz ), to cover any and all pecuniary and non-pecuniary damage as well as costs and expenses, which would be converted into Turkish liras at the rate applicable on the date of payment, and will be free of any taxes that may be applicable. It will be payable within three months from the date of notification of the decision taken by the Court . In the event of failure to pay this sum within the said three-month period, the Government undertook 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 LAW

The Court takes note of the friendly settlement reached between the Parties. It has to examine if the settlement is based on respect for human rights as defined in the Convention and its Protocols (Article 39 of the Convention). In this connection, it recalls that in a number of cases, the Court has underlined the State ’ s obligations under Article 2 of the Convention (see Güleç v. Turkey , 27 July 1998, § 71, Reports of Judgments and Decisions 1998 ‑ IV; ÅžimÅŸek and Others v. Turkey , nos. 35072/97 and 37194/97, § 104, 26 July 2005).

It further observes that it has already examined two more applications regarding the same incident, namely Hacıoğlu and Others v. Turkey ( ( dec .), nos. 7253/04, 7260/04, 7266/04, 7268/04, 7270/04, 7272/04, 14873/04, 15047/04, 15071/04, 15093/04 and 15113/04, 4 January 2007 ) and Çağdavul and Others v. Turkey ( ( dec .), no. 9542/06, 27 September 2011 ) . Those applications were also concluded with a friendly settlement and the Government expressed regret for the occurrence of individual cases of death and injuries resulting from the use of excessive force notwithstanding existing Turkish legislation and their resolve to prevent such actions. It was further accepted by the Government that the use of excessive or disproportionate force resulting in death or fatal injury constituted a violation of Article 2 of the Convention and they undertook to issue appropriate instructions and adopt all necessary measures to ensure that the right to life – including the obligation to carry out effective investigations – was respected.

Since the facts giving rise to the present case are identical, the Court is convinced that the same considerations underlie the instant application as well.

Having regard to the fact that the Government have already expressed their regret for the same incident in the above-mentioned cases, the Court is satisfied that, in the present circumstances, the friendly settlement reached between the parties is based on respect for human rights as defined in the Convention and its Protocols and finds no reasons to justify a continued examination of the application.

In view of the above, it is appropriate to strike the case out of the list pursuant to Article 39 of the Convention.

For these reasons, the Court unanimously

Decides to strike the application out of its list of cases.

Françoise Elens-Passos Françoise Tulkens Deputy Registrar President