SECOND SECTION

DECISION

Application no. 41504/08 Ä°smail ERDOÄžAN against Turkey

The European Court of Human Rights (Second Section), sitting on 24 March 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 19 August 2008,

Having regard to the declaration submitted by the respondent Government on 3 December 2019 requesting the Court to strike the application out of the list of cases and the applicant ’ s reply to that declaration,

Having deliberated, decides as follows:

FACTS AND PROCEDURE

1 . The applicant, Mr Ä°smail ErdoÄŸan, is a Turkish national, who was born in 1958 and lives in Ankara. He was represented before the Court by Mr Åž. Vural, a lawyer practising in Ankara.

2 . The Turkish Government (“the Government”) were represented by their Agent.

3 . The applicant complained under Article 6 §§ 1 and 3 (c) of the Convention that he had been denied his right to a lawyer when making statements to the police. In the same vein, the applicant further alleged that the domestic courts based their judgment on the statements he had made in the absence of a lawyer and the statements of the co-defendants which were allegedly taken under duress.

4 . The application had been communicated to the Government .

THE LAW

5 . After the failure of attempts to reach a friendly settlement, by a letter of 3 December 2019 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by the application. They further requested the Court to strike the application out of its list of cases in accordance with Article 37 of the Convention.

6 . 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 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, Ä°smail ERDOÄžAN , 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.”

7 . By a letter of 30 December 2019, the applicant ’ s lawyer indicated that he was not satisfied with the terms of the unilateral declaration as he found the amount offered by the Government too low.

8 . 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 paragraph 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”.

9 . 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.

10 . To this end, the Court has examined the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment ( 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).

11 . The Court has established in a number of cases, including those brought against Turkey, its practice concerning complaints about the validity of the waiver of the right to a lawyer during police custody and the use of evidence obtained in the absence of a lawyer to convict the applicants (see, among others, Simeonovi v. Bulgaria [GC], no. 21980/04, 12 May 2017; Bozkaya v. Turkey , no. 46661/09 , 5 September 2017; Türk v. Turkey , no. 22744/07 , 5 September 2017; Hakan Duman v. Turkey , no. 28439/03 , 23 March 2010; Savaş v. Turkey , no. 9762/03 , 8 December 2009; and Yunus Aktaş and Others v. Turkey , no. 24744/03 , 20 October 2009).

12 . Likewise, the Court has also established its practice concerning complaints about the use of statements taken under alleged duress to convict the applicants (see in respect of use of evidence obtained from the applicants under alleged duress, Mehmet Duman , cited above, Özcan Çolak v. Turkey , no. 30235/03, §§ 47 ‑ 50, 6 October 2009; Örs and Others v. Turkey , no. 46213/99, §§ 53-61, 20 June 2006; and 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).

13 . The Court further observes that the Government have explicitly acknowledged in their unilateral declaration a violation of Article 6 §§ 1 and 3 of the Convention.

14 . The Court further notes that up until 31 July 2018, sub paragraph (f) of Article 311 § 1 of Code of Criminal Procedure provided the applicants with a remedy entailing the possibility of the reopening of the criminal proceedings only on the basis of a judgment of the Court finding a violation of the Convention or 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 the Court ’ s decision 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 (see, by 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).

15 . In that connection, it further points out that according to the Court ’ s case ‑ law and practice, the re-opening 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 applicant so request. Thus, i t is considered that the aforementioned remedy is capable of providing redress in respect of the applicant ’ s 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, it is recalled that it falls in the first place to the national authorities to redress any violation of the Convention.

16 . Having regard to the nature of the admissions contained in the Government ’ s declaration, as well as the amount of compensation proposed – which is commensurate 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)). 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).

17 . Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the topic, 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 ).

18 . Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the application could be restored to the list in accordance with Article 37 § 2 of the Convention ( Josipović v. Serbia ( dec. ), no. 18369/07, 4 March 2008).

19 . 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 §§ 1 and 3 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.

Done in English and notified in writing on 28 May 2020 .

Hasan Bakırcı Valeriu Griţco Deputy Registrar President