SECOND SECTION

DECISION

Application no. 66210/09 Arif ERSÖNMEZ and Mehmet SEVİ K against Turkey

The European Court of Human Rights (Second Section), sitting on 7 July 2020 as a Committee composed of:

Valeriu Griţco , President, Arnfinn Bårdsen , Peeter Roosma , judges,

and Hasan Bakırcı, Deputy Section Registrar ,

Having regard to the above application lodged on 3 December 2009,

Having regard to the declarations submitted by the respondent Government on 13 February 2020 requesting the Court to strike the application out of the list of cases and the applicants ’ reply to those declarations,

Having deliberated, decides as follows:

FACTS AND PROCEDURE

1 . The applicants, Mr Arif Ers ö nmez and Mr Mehmet Sevik , are Turkish nationals, who were born in 1985 and 1988, respectively.

2 . The applicants were represented by Ms G. Battal Özmen , a lawyer practising in Diyarbak ı r.

3 . The applicants ’ complaints under Article 6 §§ 1 and 3 (d) of the Convention, concerning their inability to confront and question the witnesses against them before the trial court, their right to effective participation in the proceedings and to defence, and the lack of adequate reasoning in the domestic courts ’ judgments in response to their challenges against the lawfulness of the evidence used against them, in particular that obtained during the identification parade performed on 14 July 2007, were communicated to the Turkish Government (“the Government”).

THE LAW

4 . After unsuccessful friendly-settlement negotiations, by a letter dated 13 February 2020, the Government informed the Court that they proposed to make a unilateral declaration for each of the applicants with a view to resolving the issues raised by the application. They further requested the Court to strike out the application in accordance with Article 37 § 1 of the Convention.

5 . The declarations provided as follows:

“The Government of Turkey acknowledge that in the present case there has been a violation of the applicant[s ’ ] rights under Article 6 of the Convention because the criminal Proceedings against the applicant[s] carried out by the 8th Assize Court of Adana did not meet the Convention standards.

The Government further emphasizes that Article 311 § l (f) of the Code on Criminal procedure, as amended by Law no.7145 of 31 July 2018, now requires reopening of criminal 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 considers that the aforementioned remedy is capable of providing redress in respect of the applicant[s ’ ] complaints under Article 6 of the Convention.

The Government thus offer to pay [each of] the applicant[s] [ Arif Ersönmez and Mehmet Sevik ] , EUR 1 , 800 (one thousand and eight hundred euros) to cover any pecuniary and non-pecuniary damage as well as costs and expenses, plus any tax that may be chargeable to the applicant[s] with a view to resolving the abovementioned 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. ln 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. ”

6 . By a letter of 26 May 2020 the applicants ’ representative indicated that the applicants were not satisfied with the terms of the unilateral declarations, as they found the amount offered too low, given the seriousness of the complaints, and that they did not believe that the Government ’ s offer provided them with a realistic prospect of retrial.

7 . 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 paragrap h 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”.

8 . It also reiterates that in certain circumstances, it may strike out an application 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, for instance, Tahsin Acar v. Turkey (preliminary objections) [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI; WAZA Sp. z o.o . v. Poland ( dec. ), no. 11602/02, 26 June 2007; and Sulwińska v. Poland ( dec. ), no. 28953/03, 18 September 2007 for the principles emerging from the Court ’ s case-law in this regard).

9 . The Court has established clear and extensive case-law concerning complaints relating to the applicants ’ inability to examine the witnesses against them, the right to effective participation in the proceedings and the lack of adequate reasoning in domestic courts ’ judgments in response to the applicants ’ defence arguments concerning the lawfulness of the evidence (see, for example, Al ‑ Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, ECHR 2011, as refined in Schatschaschwili v. Germany [GC], no. 9154/10, §§ 107 and 118, ECHR 2015; and DaÅŸtan v. Turkey , no. 37272/08, §§ 23-36, 10 October 2017).

10 . It further notes that, until 31 July 2018, Article 311 § 1 (f) of the Code of Criminal Procedure provided applicants with a remedy entailing the possibility of reopening criminal proceedings solely on the basis of a judgment of the Court finding a violation of the Convention or the Protocols thereto. However, following the entry into force of Law no. 7145 on 31 July 2018, applicants are now entitled to lodge an application for the reopening of criminal proceedings following a decision by the Court to strike their case out of its list of cases on the basis of a friendly settlement or a unilateral declaration, as these two situations are now exhaustively listed in Article 311 § 1 (f) of the Code of Criminal Procedure as grounds for the reopening of criminal proceedings. Thus, the Court is satisfied that the domestic law provides for a remedy whereby the applicants are able to request the reopening of proceedings following a decision or judgment striking out an application on the basis of a friendly settlement or a unilateral declaration (contrast, Igranov and Others v. Russia , nos. 42399/13 and 8 others, § 26, 20 March 2018, with further references therein, and compare Sroka v. Poland ( dec. ), no. 42801/07, 6 March 2012).

11 . In that connection, the Court further points out that, according to its case-law and practice, reopening of the domestic proceedings is the most appropriate way to provide an effective solution to an alleged breach of Article 6 of the Convention, should the applicants so request. Thus, it is considered that the aforementioned remedy is capable of providing redress in respect of the applicants ’ complaints under Article 6 of the Convention. Bearing in mind the Court ’ s subsidiary role in protecting the rights and freedoms guaranteed by the Convention and its Protocols, the Court notes that it falls, in the first place, to the national authorities to redress any violation of the Convention.

12 . Noting the admissions contained in the Government ’ s declarations, as well as the amount of compensation proposed – which is consistent with the a mounts awarded in similar cases –, the Court considers that it is no longer justified to continue the examination of the application (Article 37 § 1 (c)). That decision is without prejudice to the possibility for the applicant to exercise any other available remedies in order to obtain redress (see Jeronovičs v. Latvia [GC], no. 44898/10, §§ 116 ‑ 118, 5 July 2016).

13 . 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 ).

14 . Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declarations, 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 under Article 6 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.

Hasan Bakırcı Valeriu Griţco Deputy Registrar President