SECOND SECTION

DECISION

Application no. 9507/19 Halil KAYALAR

against Turkey

(s ee appended table)

The European Court of Human Rights (Second Section), sitting on 11 March 2021 as a Committee composed of:

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

and Liv Tigerstedt, Deputy Section Registrar,

Having regard to the above application lodged on 8 February 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 L. Özçelik , a lawyer practising in Ankara.

The applicant ’ s complaints under Article 6 § 1 of the Convention concerning the independence and impartiality of the Supreme Military Administrative Court 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 declaration provides as follows:

“I declare that the Government of Turkey offer to pay the applicant 1,200 (one thousand and two hundred) euros to cover any pecuniary and non-pecuniary damage as well as costs and expenses that may be chargeable to the applicant 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 § l of the European Convention on Human Rights. In the event of failure to pay these sums 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.

The Government consider that the lack of impartiality and independence of the Supreme Military Administrative Court breached applicant ’ s right to fair hearing in the light of the well-established case-law of the Court ( Tanışma v. Turkey , no. 32219/05, 17 November 2015). The Government further emphasize that Article 53 § l (1) of the Code of Administrative Procedure, as amended by Law no.7145 of 31 July 2018, now requires reopening of administrative court 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 applicant ’ s complaints under Article 6 of the Convention.

The Government respectfully invite the Court to declare that it is no longer justified to continue the examination of the application and to strike it out of its list of cases in accordance with Article 37 of the Convention.”

The applicant was sent the terms of the Government ’ s unilateral declaration. The Court has 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 independence and impartiality of the Supreme Military Administrative Court under Article 6 § 1 of the Convention (see, for example, Tanışma v. Turkey , no. 32219/05, 17 November 2015).

Noting the admissions contained in the Government ’ s declarations 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 applications (Article 37 § 1 (c)).

The Court would like to draw attention to the fact that on 31 July 2018 the Turkish Law No. 7145 entered into force. Articles 4, 17, 18 and 19 of this new law provide for a right to request the reopening of domestic court proceedings or the investigation following the Court ’ s decision to strike out a case on the basis of a friendly settlement or unilateral declaration. According to the Court ’ s case‑law and practice, the reopening 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.

The Court further notes that the Supreme Military Administrative Court is abolished as of 16 April 2017 (see Baysal v. Turkey ( dec. ), no. 29698/11, 22 May 2018) and a request may be made before the Ankara Administrative Court for the reopening of the impugned proceedings.

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 ).

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).

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 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 .

Done in English and notified in writing on 1 April 2021 .

Liv Tigerstedt Branko Lubarda Deputy Registrar President

APPENDIX

Application raising complaints under Article 6 § 1 of the Convention

( i ndependent and impartial tribunal )

Application no. Date of introduction

Applicant ’ s name

Year of birth

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]

9507/19

08/02/2019

Halil KAYALAR

1957

11/06/2020

16/07/2020

1,200

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