SECOND SECTION

DECISION

Application no. 12398/10 Åžahin TÃœCER against Turkey

( s ee appended table)

The European Court of Human Rights (Second Section), sitting on 11 June 2020 as a Committee composed of:

Ivana Jelić , President, Arnfinn Bårdsen , Darian Pavli, judges,

and Liv Tigerstedt, Acting Deputy Section Registrar,

Having regard to the above application lodged on 23 February 2010,

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

1 . The applicant ’ s details are set out in the appended table.

2 . The applicant was represented by Mr A.K. Tücer , a lawyer practising in Diyarbakır.

3 . The applicant complained under Article 6 §§ 1 and 3 (c) of the Convention about the unfairness of the criminal proceedings due to the systemic restriction imposed on his right of access to a lawyer during the pre-trial stage, the use of the statements he had made in the absence of a lawyer, and the statements made by his co-accused, namely Y.P., A.K., and Ö.O., in the absence of a lawyer and under alleged duress to convict him. In the same vein, the applicant also complained of his inability to examine and confront Y.P., A.K., and Ö.O. of the admission as evidence of the results of the search of the home in which he was staying as a guest, and of the trial court ’ s unjustified refusal to adjourn the last hearing despite the fact that his lawyer ’ s wife gave birth on the same day. Furthermore, the applicant alleged a violation of Article 8 of the Convention owing to the allegedly unlawful search carried out at the house in which he had been staying as a guest. The applicant further complained that his criminal prosecution on account of having petitioned the university authorities to provide optional Kurdish language courses had breached his rights under Article 10 of the Convention. Finally, the applicant complained of a violation of Article 11 of the Convention due to his conviction for participation in a protest on 6 November 2001.

4 . The above complaints were communicated to the Turkish Government (“the Government”).

THE LAW

5 . 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 provided as follows:

“The Government of Turkey acknowledge that in the present case there has been a violation of the applicant ’ s rights under Articles 6 §§ 1 and 3 of the Convention in the light of the well-established case-law of the Court.

The Government also recalls that Law no. 4928 on 15 July 2003 repealed the provision concerning the systemic restriction on the right of access to a lawyer.

The Government further emphasises that Article 311 § 1 (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 the applicant Åžahin TÃœCER, EUR 500 (five 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 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 § 1 of the European Convention on Human Rights. 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.”

6 . By a letter of 26 October 2018 the applicant ’ s representative indicated that the applicant was not satisfied with the terms of the unilateral declaration and criticised the Government for proposing to close the case by recognising the violations minimally, that is to say by offering a unilateral declaration only in respect of his complaints under Article 6 of the Convention.

7 . 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).

8 . The Court has established clear and extensive case-law concerning complaints relating to the systemic restriction on the right of access to a lawyer and the use of statements made in the absence of a lawyer to convict individuals (see, among other authorities, Mehmet Duman v. Turkey , no. 38740/09, 23 October 2018; Ömer Güner v. Turkey , no. 28338/07, 4 September 2018; Girişen v. Turkey , no. 53567/07, 13 March 2018; Canşad and Others v. Turkey , no. 7851/05, 13 March 2018; İzzet Çelik v. Turkey , no. 15185/05, 23 January 2018; and Bayram Koç v. Turkey , no. 38907/09, 5 September 2017) .

9 . In the above-mentioned cases, the Court, without examining whether the systemic nature of the restriction on the applicant ’ s right of access to a lawyer was, in itself, sufficient to find a violation of Article 6 §§ 1 and 3 (c) of the Convention, held that the use of the applicant ’ s statements to the police by the trial court, without examining the question of their admissibility and the Court of Cassation ’ s subsequent failure to remedy that shortcoming, had constituted a violation of that Article. Moreover, in all of the above cases, the Court considered that the finding of a violation of Article 6 §§ 1 and 3 (c) of the Convention constituted sufficient just satisfaction for the non-pecuniary damage sustained by the applicants.

10 . Furthermore, t he Court has also established its practice concerning complaints about the use of statements made by the co-accused in the absence of a lawyer and under alleged duress to convict the applicants (see in respect of use of evidence obtained from the third parties, including co ‑ defendants, under alleged duress, Kormev v. Bulgaria , no. 39014/12, §§ 89 ‑ 90, 5 October 2017; Kaçiu and Kotorri v. Albania , nos. 33192/07 and 33194/07 , § 128, 25 June 2013; and Huseyn and Others v. Azerbaijan , nos. 35485/05 and 3 others, §§ 202-213, 26 July 2011 ; see in respect of use of evidence obtained from co-accused in the absence of a lawyer, Ömer Güner v. Turkey , no. 28338/07 , §§ 37-41, 4 September 2018).

11 . Furthermore, the Court has also established in a number of cases, including those brought against Turkey, its practice concerning complaints about applicants ’ inability to examine witnesses during the criminal proceedings against them (see, among other authorities, Schatschaschwili v. Germany [GC], no. 9154/10 , ECHR 2015; Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06 , ECHR 2011; and Daştan v. Turkey , no. 37272/08 , 10 October 2017).

12 . Similarly, the Court has established in a number of cases its practice regarding complaints of the use of evidence obtained during unlawful house searches to convict the applicants (see Bykov v. Russia [GC], no. 4378/02, §§ 88-105, 10 March 2009; Prade v. Germany , no. 7215/10, § 32-43, 3 March 2016; and Lee Davies v. Belgium , no. 18704/05, §§ 40-54, 28 July 2009) and the complaints of unfairness of the proceedings on account of the absence of the applicants ’ counsel during the last hearings before the trial courts (see Hanževački v. Croatia , no. 17182/07, §§ 18-29, 16 April 2009).

13 . The Court would further 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.

14 . Noting the admissions contained in the Government ’ s declaration as well as the amount of compensation proposed, the Court considers that it is no longer justified to continue the examination of the application (Article 37 § 1 (c)).

15 . 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 ). 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).

16 . 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).

17 . In view of the above, it is appropriate to strike the case out of the list as regards the above complaints concerning the unfairness of the criminal proceedings against the applicant under Article 6 §§ 1 and 3 of the Convention.

18 . The applicant also raised other comp laints under Articles 8, 10 and 11 of the Convention.

19 . The Court reiterates that as the applicant is entitled to lodge an application for the reopening of criminal proceedings following the entry into force of Law no. 7145 on 31 July 2018, a fresh examination of the case would be possible, and that the aforementioned remedy is capable of providing redress in respect of his above comp laints under Articles 8, 10 and 11 of the Convention (see Çölgeçen and Others v. Turkey , nos. 50124/07 and 7 others , §§ 32-57, 12 December 2017 where the Court found a violation of Article 2 of Protocol No. 1, read in the light of Article 10 of the Convention on account of the imposition of a disciplinary sanction on, inter alia , the co ‑ accused for having petitioned the university authorities to provide optional Kurdish language courses ).

20 . As a result, the Court considers that there is no need to examine the admissibility or the merits of these complaints.

For these reasons, the Court, unanimously,

Takes note of the terms of the respondent Government ’ s declaration under Article 6 §§ 1 and 3 of the Convention , 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 remaining complaints under Articles 8, 9 and 10 of the Convention.

Done in English and notified in writing on 2 July 2020 .

Liv Tigerstedt Ivana Jelić Acting Deputy Registrar President

APPENDIX

Application raising complaints under Article 6 §§ 1 and 3 of the Convention

Application no. Date of introduction

Applicant ’ s name

Year of birth

Representative ’ s name and location

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]

12398/10

23/02/2010

Åžahin TÃœCER

1981Tücer Ahmet Kerim

Diyarbakır

06/09/2018

26/10/2018

500[1] Plus any tax that may be chargeable to the applicant .