SECOND SECTION

DECISION

Application no. 58429/12 Fikri KARAKUÅž against Turkey

( s ee appended table)

The European Court of Human Rights (Second Section), sitting on 30 April 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 21 June 2012,

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 B. Yıldırım, a lawyer practising in Tunceli .

The applicant ’ s complaint under Article 2 of the Convention concerning his wounding during a security operation by the military forces was 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 provided as follows:

“The Government 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 admit that the investigation conducted into the allegations of infringement of right to life did not meet the standards enshrined in Article 2 of the Convention. The Government undertake to adopt all necessary measures to ensure that effective investigations be carried out in the future.

The Government of Turkey declare that they offer to pay to the applicant Fikri KarakuÅŸ , with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights, EUR 10,000 (ten thousand euros) to cover any and all non-pecuniary damage, 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 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.”

The applicant was sent the terms of the Government ’ s unilateral declaration several weeks before the date of this decision and he informed the Court that he did not agree with the terms of the unilateral 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, Tahsin Acar v. Turkey (preliminary objections) [GC], no. 26307/95, §§ 75 ‑ 77, ECHR 2003-VI).

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).

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)).

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 ).

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.

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 .

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 4 June 2020 .

Liv Tigerstedt Ivana Jelić Acting Deputy Registrar President

APPENDIX

Application raising complaints under Article 2 of the Convention ( right to life- death by security forces, ineffectiveness of investigation )

Application no. Date of introduction

Applicant ’ s name

Date of birth

Representative ’ s name and location

Date of receipt of Government ’ s declaration

Date of receipt of applicant ’ s comments, if any

Amount awarded for non-pecuniary damage and costs and expenses

per applicant

(in euros) [1]

58429/12

21/06/2012

Fikri KARAKUÅž

01/01/1977

Barış YILDIRIM

Tunceli

09/03/2018

29/03/2018

10,000

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