SECOND SECTION

DECISION

Application no. 9302/19 İsmail TOPÇU against Turkey

(s ee appended table)

The European Court of Human Rights (Second Section), sitting on 22 April 2021 as a Committee composed of:

Branko Lubarda, President, Carlo Ranzoni, Pauliine Koskelo, judges,

and Viktoriya Maradudina, Acting Deputy Section Registrar,

Having regard to the above application lodged on 16 January 2019,

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. Tarhan , a lawyer practising in Istanbul.

The applicant ’ s complaints under Article 6 § 1 and Article 13 of the Convention concerning contradictory decisions of the Court of Cassation in identical cases, breaching the principle of legal certainty and the failure of the Constitutional Court in providing an effective remedy in this respect were communicated to the Turkish Government (“the Government”) .

THE LAW

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 Government acknowledged the violation of Article 6 § 1 in respect of the impugned domestic proceedings . They offered to pay the applicant the amount detailed in the appended table and invited the Court to strike the application out of the list of cases in accordance with Article 37 § 1 (c) of the Convention. The amount would be converted into the currency of the respondent State at the rate applicable on the date of payment and would be payable within three months from the date of notification of the Court ’ s decision. In the event of failure to pay this amount within the above-mentioned three-month period, the Government undertook to pay simple interest on it, from the 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 applicant was sent the terms of the Government ’ s unilateral declaration on 27 August 2020. On 19 January 2021 the Court received a response from the applicant refusing the terms of the declaration.

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 complaints relating to the breach of legal certainty on account of contradictory decisions of domestic courts (see, for example Stoilkovska v. the former Yugoslav Republic of Macedonia , no. 29784/07, §§ 47 ‑ 49, 18 July 2013 and Hayati Çelebi and Others v. Turkey , no. 582/05, § 52, 9 February 2016).

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 in the part covered by the unilateral declaration (Article 37 § 1 (c)).

The Court would also like to draw attention to the fact that on 25 July 2018 the Turkish Parliament adopted Law No. 7145. Articles 4, 17, 18 and 19 of this new law provide for a right to request the re-opening of domestic court proceedings following the Court ’ s decision to strike out a case on the basis of a friendly settlement or unilateral declaration. In particular, according to the Court ’ s case ‑ law and practice, the re ‑ opening 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.

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 in the part covered by the unilateral declaration (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 ( 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 concerns the complaint under Article 6 § 1 of the Convention .

The applicant complained under Article 13 of the Convention that the Constitutional Court had failed to give a remedy to his Convention complaints.

The Court notes that the facts which the applicant complained of under Article 13 are practically the same as those which underlay the complaint it decided on above. The Court therefore does not consider it necessary to give a separate ruling on the allegation of a breach of Article 13 of the Convention (see, mutatis mutandis , Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014, with further references; Sochaczewski v. Poland ( dec. ), no. 46091/13, 12 February 2019; and Özbaş v. Turkey ( dec. ), no. 47370/08, 28 January 2020).

For these reasons, the Court, unanimously,

Takes note of the terms of the respondent Government ’ s declaration and of the arrangements 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, in so far as it concerns the complaint under Article 6 § 1 of the Convention;

Holds that it is not necessary to examine the admissibility and merits of the applicant ’ s complaint under Article 13 of the Convention.

Done in English and notified in writing on 20 May 2021 .

             {signature_p_2}

Viktoriya Maradudina Branko Lubarda Acting Deputy Registrar President

APPENDIX

Application raising complaints under Article 6 § 1 and Article 13 of the Convention

( breach of the principle of legal certainty on account of contradictory decisions

and lack of any effective remedy in domestic law )

Application no.

Date of introduction

Applicant ’ s name

Year of birth

Representative ’ s name and location

Date of receipt of Government ’ s declaration

Date of receipt of applicant ’ s comments

Amount awarded for pecuniary and non-pecuniary damage and costs and expenses

per applicant

(in euros) [1]

9302/19

16/01/2019

İsmail TOPÇU

1980Tarhan Ayhan

Istanbul

25/08/2020

19/01/2021

1,350

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