SECOND SECTION

DECISION

Application no. 47370/08 Bahar ÖZBAŞ against Turkey

The European Court of Human Rights (Second Section), sitting on 28 January 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 26 September 2008,

Having regard to the declaration submitted by the respondent Government on 6 November 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

The applicant, Ms Bahar Özbaş , is a Tu rkish national, who was born in 1991 and lives in Konya. She was represented before the Court by Mr S. Cengiz and Ms D . Ç avu şoğ lu , lawyers practising in İzmir.

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

The applicant complained under Article 1 of Protocol No. 1 and Articles 6 § 1 and 13 of the Convention that although the State was found jointly and separately liable for pecuniary damage suffered by her, she was unable to collect the entire sum as a result of the alleged failure of the administrative court to dismiss her request to amend her claim in the light of the expert opinion which had established the extent of her damages during the civil proceedings.

The application had been communicated to the Government .

THE LAW

The applicant complained about an alleged violation of her right of access to court and an alleged interference with her peaceful enjoyment of possessions on account of the procedural restriction in the Turkish administrative context at the time which prevented her to claim the entire amount of the pecuniary damages that had been established in the context of a judgment rendered in the parallel civil proceedings. She relied on Article 1 of Protocol No. 1 and Articles 6 § 1 of the Convention.

After the failure of attempts to reach a friendly settlement, by a letter of 6 November 2019 the Government informed the Court that they proposed to make a unilateral declaration 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 of the Convention.

The declaration provided as follows:

“I declare that the Government of Turkey offer to pay the applicant, Bahar Özba ş , 1,350 EUR (one thousand three hundred and fifty) to cover any and all pecuniary and non-pecuniary damage as well as costs and expenses, plus any tax that may be chargeable to the applicant.

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 before the European Court of Human Rights.

The Government consider that the inability of the applicants to increase their pecuniary claims in the course of the proceedings on account of a procedural restriction at the material time, namely the prohibition of amendment in the Code of Administrative Procedure (Law no. 2577) breached their right to a fair trial in the light of the well-established case law of the Court ( Fatma Nur Erten and Adnan Erten v. Turkey , no . 14674/11 , 25 November 2014 ). However, following the amendment introduced by the Law no. 6459 (entered into force on 30 April 2013) to the Article 16 of the Law no. 2577, in the context of the procedure on the administrative proceedings, the obstacle preventing the request for an increase in the amount claimed and giving rise to the present complaint was eliminated.

The Government further emphasize that Article 53 § l ( 1 ) of the Code of Administrative Procedure, as amended by Law no. 7145 of 31 July 2018, now provides for the reopening of administrative court 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 consider that the aforementioned remedy is capable of providing redress in respect of the applicants ’ complaints under Article l of Protocol No. l to the Convention.

The Government respectfully invite the Court to declare that it is no longer justified to continue the examination of the application and to strike it out of its list of cases in accordance with Article 37 of the Convention.”

By a letter of 15 November 2019, the applicant indicated that she was not satisfied with the terms of the unilateral declaration.

The Court re iterates 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”.

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.

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).

The Court has established in a number of cases, including those brought against Turkey , its practice concerning complaints about the disproportionate limitation to the right of access to a court on account of the procedural rule at the time which prevented litigants from amending their pecuniary claims in the course of administrative proceedings (see Fatma Nur Erten and Adnan Erten , cited above, §§ 29-33 and Tamer Tanrıkulu v. Turkey , no. 36488/08, § 20, 29 November 2016 ).

Having regard to the nature of 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 this part of the application (Article 37 § 1 (c)).

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 this part of the application (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 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).

In view of the above, it is appropriate to strike the case out of the list .

The applicant complain ed under Article 13 of the Convention that she had not had an effective domestic remedy for her complaint under Article 1 of Protocol No. 1 to the Convention.

The Court notes that the facts which the applicant complained of under Article 13 are practically the same as those which underlay the complaints it examined above. The Court therefore does not consider it necessary to give a separate ruling on the admissibility and merits of the allegation of a breach of Article 13 of the Convention (see, mutatis mutandis , Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014, with further references; and Sochaczewski v. Poland ( dec. ), no. 46091/13, 12 February 2019).

For these reasons, the Court, unanimously,

Takes note of the terms of the respondent Government ’ s declaration 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, in so far as it concerns the complaints under Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention;

Holds that it is not necessary to examine the admissibility and merits of the applicant ’ s complaint under Article 13 of the Convention.

Done in English and notified in writing on 20 February 2020 .

Hasan Bakırcı Valeriu Griţco Deputy Registrar President