SECOND SECTION

DECISION

Application no. 64727/11 Melese ERDEM and Mahmut ERDEM against Turkey

The European Court of Human Rights (Second Section), sitting on 30 March 2021 as a Committee composed of:

Aleš Pejchal, President, Egidijus Kūris, Carlo Ranzoni, judges,

and Hasan Bakırcı, Deputy Section Registrar,

Having regard to the above application lodged on 21 September 2011,

Having regard to the declaration submitted by the respondent Government on 19 November 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. The applicants, Ms Melese Erdem and Mr Mahmut Erdem, are Turkish nationals, who were born in 1967 and 1969 respectively and live in Mardin. They were represented before the Court by Ms R. Bataray Saman a lawyer practising in Diyarbakır.

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

3. The applicants alleged that their son had been shot and killed during a demonstration. Relying on Articles 2 and 13 of the Convention, the applicants complained that their son had been killed as a result of excessive use of force and argued that the ensuing criminal investigation had been ineffective.

4. The application had been communicated to the Government under Article 2 of the Convention .

THE LAW

5. After the failure of attempts to reach a friendly settlement, by a letter of 19 November 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, regret that the circumstances surrounding the death of the applicants’ son and the investigation conducted into 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 carry out effective investigations - is respected in the future.

The Government of Turkey declare that they offer to pay jointly to the applicants Melese Erdem and Mahmut Erdem with a view to securing a unilateral declaration of the above-mentioned case pending before the European Court of Human Rights EUR 13,500 (thirteen thousand five hundred euros) to cover any and all pecuniary and non-pecuniary damage as well as costs and expenses plus any tax that may be chargeable to the applicants.

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 taken by the Court to strike the case out of its list of cases. 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. The payment will constitute the final resolution of the case before the European Court of Human Rights.”

7. By a letter of 28 January 2021, 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 Mustafa Tunç and Fecire Tunç v. Turkey [GC], no. 24014/05, § 169, 14 April 2015; and Beker v. Turkey , no. 27866/03, 24 March 2009).

11. The Court observes that the amount proposed by the Government appears to be lower than the amounts awarded in cases concerning the member States’ positive obligation to take steps to protect the right to life and to carry out an effective investigation. However, given the specific circumstances of the present case and noting the admissions contained in the Government’s declaration, 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 (see 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 29 April 2021.

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Hasan Bakırcı Aleš Pejchal Deputy Registrar President