SECOND SECTION

DECISION

Application no. 68605/11 Gurbet AYDEMÄ°R 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 20 September 2011,

Having regard to the declaration submitted by the respondent Government on 22 October 2020 requesting the Court to strike the application out of the list of cases and the applicant’s reply to that declaration,

Having deliberated, decides as follows:

FACTS AND PROCEDURE

1. The applicant, Ms Gurbet Aydemir, is a Turkish national, who was born in 1969 and lives in Adana. She was represented before the Court by Ms S. Aracı Bek and Mr T. Bek, lawyers practising in Adana.

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

3. The applicant alleged that her son, who was a minor at the material time, had been wounded by police officers during a demonstration, and that the ensuing criminal investigation into the incident had been in breach of Articles 5, 6 and 13 of the Convention.

4. The application had been communicated to the Government under Articles 2 and 3 of the Convention .

THE LAW

5. After the failure of attempts to reach a friendly settlement, by a letter of 22 October 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 the occurrence of individual cases of life-threatening injuries, as in the circumstances of the present case, notwithstanding existing Turkish legislation and the resolve of the Government to prevent such actions.

The Government wish to express by way of unilateral declaration their acknowledgement that the circumstances surrounding the injury of the applicant’s relative and the investigation conducted into the injury did not meet the standards enshrined in Articles 2 and l3 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 to the applicant Gurbet Aydemir, EUR 9,000 (nine thousand euros) to cover any and all non-pecuniary damage, as well as costs and expenses, plus any tax that may be chargeable.

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 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.”

7. By a letter of 25 November 2020, the applicant indicated that she was 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 , 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 section 172 of the Code of Criminal Procedure was 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 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