SECOND SECTION

DECISION

Application no. 56681/09 Orhan GÜNLEMENÇ and O thers

against Turkey

(s ee appended table)

The European Court of Human Rights (Second Section), sitting on 21 January 2021 as a Committee composed of:

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

and Liv Tigerstedt, Acting Deputy Section Registrar,

Having regard to the above application lodged on 16 October 2009,

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 list of applicant s is set out in the appended table.

The applicants were represented by Mr M. Ä°lge , a lawyer practising in Batman.

The present application mainly concerns the property damage sustained by the applicants following a large underground explosion that took place in Batman on 3 May 2004. The applicants ’ complaints under Article 6 § 1 of the Convention, concerning their inability to access the civil courts to claim damages on account of the allegedly erroneous application of the time-limit rules, and under Article 1 of Protocol No. 1 to the Convention, regarding the alleged violation of their property rights as a result of the explosion , 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 under Article 6 § 1. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.

The Government acknowledged that the civil proceedings that are the subject-matter of the present application did not meet the standards enshrined in Article 6 of the Convention in respect of the right of access to court . They offered to pay jointly to the applicants 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 s were sent the terms of the Government ’ s unilateral declaration several weeks before the date of this decision. The Court has not received a response from the applicant s accepting 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 s wish 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 right of access to court (see, for example, Kurşun v. Turkey , no. 22677/10 , §§ 93-106, 30 October 2018).

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 this part (Article 37 § 1 (c)).

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 as regards the applicants ’ complaint under Article 6 § 1 of the Convention.

The applicants also complained under Article 1 of Protocol No. 1 to the Convention:

( i ) that the State authorities had failed in their positive obligations to take the necessary precautions to avoid the explosion and the resulting damage to their property;

(ii) that the building restrictions imposed by the authorities in the aftermath of the explosion, which were still in force on account of the continuing leakage and risk of further explosions, had severely restricted the use of their property; and

(iii) that they had not been provided with redress for the damage they had sustained despite its recognition by experts.

As regards complaints ( i ) and (ii), the Court has examined these complaints and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, these complaints either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto (see Kurşun , cited above, §§ 125 and 129-133).

It follows that this part of the application must be rejected in accordance with Article 35 § 4 of the Convention.

As for the applicants ’ third complaint (iii) above – concerning their inability to obtain redress for the damage inflicted on their property because of the explosion –, the Court considers that having regard to the Government ’ s acknowledgment of a violation regarding the shortcomings in the civil proceedings at issue, there is no need to examine the admissibility or the merits of this particular complaint separately (see Kurşun , cited above, § 128 ; see also Aksis and Others v. Turkey , no. 4529/06, § 60, 30 April 2019 ).

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 this part of the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention;

Decides that there is no need to examine the admissibility or the merits of the complaint under Article 1 of Protocol No. 1 to the Convention concerning the applicants ’ inability to obtain compensation in respect of their pecuniary damage arising from the explosion;

Declares the remainder of the application inadmissible.

Done in English and notified in writing on 11 February 2021 .

Liv Tigerstedt Branko Lubarda Acting Deputy Registrar President

APPENDIX

Application raising complaints under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention

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 jointly to the applicants (in euros) [1]

56681/09

16/10/2009

(13 applicants)

Orhan GÜNLEMENÇ

1968Hasan GÜNLEMENÇ

1978Faik GÜNLEMENÇ

1981Halil GÜNLEMENÇ

1989Muhittin GÜNLEMENÇ

1992Yıldız TUNG

1973Türkan YILDIZ

1971Mesude YILMAZ

1974Fatma GÖZEL

1983AyÅŸe GÃœN

1967Emine TOPTAÅž

1962Leyla TUNG

1976Gamze (ex Selime ) GÜNLEMENÇ

1985

24/11/2020

27/11/2020

9,000

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