SECOND SECTION

DECISION

Application no. 77747/12 Nesim YILMAZ and Others against Turkey

The European Court of Human Rights (Second Section), sitting on 8 June 2021 as a Committee composed of:

Valeriu Griţco, President, Egidijus Kūris, Branko Lubarda, judges,

and Hasan Bakırcı, Deputy Section Registrar,

Having regard to the above application lodged on 8 September 2012,

Having regard to the declaration submitted by the respondent Government on 14 December 2020 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. The applicants alleged that their relative, who was a minor at the material time, had been shot and killed near the border by a group of soldiers while he was smuggling fuel from Iran. Relying on Article 2 of the Convention, the applicants complained that their relative had been killed as a result of excessive use of force and stated that the ensuing criminal investigation had been ineffective.

4. The application had been communicated to the Government .

THE LAW

5. After the failure of attempts to reach a friendly settlement, by a letter of 14 December 2020 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.

6. The declaration provided as follows:

“The Government of Turkey acknowledge that in the present case there has been a violation of the applicants’ rights under Article 2 of the Convention in the light of the well-established case-law of the Court.

The Government emphasize that Article 311 § 1 (f) of the Code on Criminal Procedure, as amended by Law no. 7145 of 31 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 consider that the aforementioned remedy is capable of providing redress in respect of the applicants’ complaints under Article 2 of the Convention.

The Government thus offer to pay the applicants Nesim Yılmaz and others EUR 27,000 (twenty seven thousand euros) to cover any pecuniary and non-pecuniary damage as well as costs and expenses, plus any tax that may be chargeable to the applicants 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 § 1 of the European Convention on 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 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. This payment will constitute the final resolution of the case before the European Court of Human Rights.”

7. By a letter of 24 December 2020, the applicants indicated that they were not satisfied with the terms of the unilateral declaration on the ground that the proposed amount was not sufficient.

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

10. The Court has established in a number of cases, including those brought against Turkey, its practice concerning complaints about the obligation under Article 2 of the Convention to carry out effective investigations (see, inter alia , Halis Akın v. Turkey , no. 30304/02, 13 January 2009; Beyazgül v. Turkey , no. 27849/03, 22 September 2009; and Mustafa Tunç and Fecire Tunç v. Turkey [GC], no. 24014/05, § 169, 14 April 2015).

11. 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 the application (Article 37 § 1 (c)).

12. 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 the application (Article 37 § 1 in fine).

13. In this connection, the Court notes that the relevant sections of the Code of Criminal Procedure were amended in July 2018. According to the amendment, applicants in Turkey now have the opportunity to ask the relevant prosecutors to reopen the investigations not only in cases in which the Court has found a violation of the Convention on account of a failure to carry out an effective investigation, but also if their applications have been struck out by the Court on the basis of friendly settlements or on the basis of unilateral declarations submitted by the Government.

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

15. 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 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 1 July 2021.

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Hasan Bakırcı Valeriu Griţco Deputy Registrar President

Appendix

No.

Applicant’s Name

Year of birth

Nationality

Place of residence

1.Nesim YILMAZ

1947Turkish

Van

2.Mevlüde (YILMAZ) YILDIRIM

1987Turkish

Van

3.DoÄŸan YILMAZ

1991Turkish

Van

4.Halil YILMAZ

1990Turkish

Van

5.Hüsna YILMAZ

1948Turkish

Van

6.Ä°brahim YILMAZ

1978Turkish

Istanbul