SECOND SECTION

DECISION

Application no. 32867/09 Seyfettin KINAY against Turkey

The European Court of Human Rights (Second Section), sitting on 26 November 2019 as a Committee composed of:

Julia Laffranque , President, Ivana Jelić , Arnfinn Bårdsen , judges,

and Hasan Bakırcı, Deputy Section Registrar ,

Having regard to the above application lodged on 18 May 2009,

Having regard to the declaration submitted by the respondent Government on 10 July 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 Seyfettin Kı nay , is a Turkish national, who was born in 1970 and lives in Diyarbakır. He was represented before the Court by Mr M. Özbekli , a lawyer practising in Diyarbakır.

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

3 . The applicant complained under Article 6 of the Convention that he had been denied the assistance of a lawyer during the initial stages of the criminal proceedings, and that his conviction was based on the statements he had made to the police in the absence of a lawyer and under alleged duress . The applicant further maintained that he had been denied a fair trial by an independent and impartial tribunal as required by Article 6 § 1 of the Convention due to the presence of a military judge in the composition of the trial court at the initial stage of the trial. Invoking Article 3 of the Convention, the applicant also alleged th at he had been subjected to ill ‑ treatment during his questioning.

4 . The first three complaints were communicated to the Government.

THE LAW

5 . After unsuccessful friendly-settlement negotiations, by a letter dated 10 July 2019 the Government informed the Court that they proposed to make a declaration with a view to resolving the issues raised by the application.

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The Government also recalls that Law no. 4928 on 15 July 2003 repealed the provision concerning the systemic restriction on the right of access to a lawyer.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 applicants ’ complaints under Article 6 of the Convention.

The Government thus offers, by this unilateral declaration, to pay the applicant, Seyfettin KÄ°NAY, 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 . On 15 August 2019 the Court received a letter from the applicant informing the Court that he had agreed to the terms of the Government ’ s declaration.

8 . Having regard to the applicant ’ s complaints under Article 6 §§ 1 and 3 of the Convention concerning the systemic restriction imposed on his right of access to a lawyer during the pre-trial stage pursuant to Law no. 3842 and the subsequent use by the trial court of the statements taken in the absence of a lawyer to convict him, the Court finds that following the applicant ’ s express agreement to the terms of the declaration made by the Government the case should be treated as a friendly settlement between the parties.

9 . It therefore takes note of the friendly settlement reached between the parties in so far as it relates to the above complaints . It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no reasons to justify a continued examination of the application.

10 . The Court would like to draw attention to the fact that on 25 July 2018 the Turkish Parliament has adopted Law no.7145. Articles 4, 17, 18 and 19 of this new law provide for a right to request the re-opening of domestic court proceedings following the Court ’ s decision to strike out a case on the basis of a friendly settlement or unilateral declaration. In particular, 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. Thus, it 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.

11 . In view of the above, it is appropriate to strike the case out of the list in so far as it relates to the above complaint .

12 . Relying on Article 6 § 1 of the Convention, the applicant further complained of the use by the trial court of his statements taken under alleged duress. In the same vein, t he applicant also complained that he had not been tried by an independent and impartial tribunal due to the presence of a military judge in the composition of the Diyarbakır State Security Court at the initial stage of the trial.

13 . The Court reiterates that as the applicant is entitled lodge an application for the reopening of criminal proceedings following the entry into force of Law no. 7145 on 31 July 2018 (see paragraph 10 above ) , a fresh examination of the case would be possible, and that the aforementioned remedy is capable of providing redress in respect of his complaints under Article 6 § 1 of the Convention. As a result, the Court considers that there is no need to examine the admissibility or the merits of the complaints regarding the use by the trial court of the applicant ’ s statements allegedly obtained under duress and the Diyarbakır State Security Court ’ s alleged lack of independence and impartiality on account of the presence of a military judge in its bench (see Mehmet Duman v. Turkey , no. 38740/09 , §§ 48-49, 23 October 2018).

14 . Relying on Article 3, the applicant lastly complained that he was subjected to ill-treatment while in police custody.

15 . The Court has examined this complaint and considers that, in the light of all the material in its possession and in so far as the matter complained of is within its competence, this complaint does not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto (see Abdulgafur Batmaz v. Turkey , no. 44023/09, § 38, 24 May 2016).

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 complaints under Article 6 §§ 1 and 3 of the Convention concerning the absence of access to a lawyer during the pre-trial stage and the use by the trial court of the evidence obtained in the absence of a lawyer to convict the applicant out of its list of cases pursuant to Article 39 of the Convention;

Decides that there is no need to examine the admissibility or the merits of the complaint under Article 6 regarding the alleged lack of independence and impartiality of the Diyarbak ır State Security Court and the alleged use of the evidence obtained under duress to convict the applicant;

Declares the remainder of the application inadmissible.

Done in English and notified in writing on 19 December 2019 .

Hasan Bakırcı Julia Laffranque Deputy Registrar President