SECOND SECTION

DECISION

Application no. 42403/09 Kasım AZARKAN against Turkey

The European Court of Human Rights (Second Section), sitting on 22 October 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 28 July 2009,

Having regard to the declaration submitted by the respondent Government on 6 September 2018 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 Kasım Azarkan , is a Turkish national, who was born in 1968 and is detained in Diyarbakır. He was represented before the Court by Mr N. Özdemir , a lawyer practising in Istanbul.

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 . Relying on the same provision, t he applicant further maintained that he had been unable to examine the witnesses during the criminal proceedings . Lastly, the applicant complained under the same provision that the length of the criminal proceedings was incompatible with the principle of “reasonable time” requirement.

4 . The application had been communicated to the Government.

THE LAW

A. As regards the complaints concerning the l ack of legal assistance available to the applicant during the preliminary investigation, use of his statements to the police taken in the absence of a lawyer and his alleged inability to examine the witnesses in the course of the criminal proceedings

5 . After the failure of attempts to reach a friendly settlement, by a letter of 6 September 2018 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by this part of the application. They further requested the Court to strike out the application 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 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, Kasım AZARKAN, 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 9 January 2019, the applicant indicated that he was not satisfied with the terms of the unilateral declaration.

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 . The Court 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 cases brought against Turkey, its practice concerning complaints of systemic denial of legal assistance and the use of evidence obtained in the absence of a lawyer to convict applicants (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).

12 . 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.

13 . Furthermore, t he 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; 10 July 2018; and Daştan v. Turkey , no. 37272/08, 10 October 2017).

14 . 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.

15 . I t is also important to note that the legal provisions from which the issue of systemic restriction on the right to a lawyer stemmed were repealed by Law no. 4928 of 15 July 2003 (see further, Salduz v. Turkey [GC], no. 36391/02, §§ 27 ‑ 31, ECHR 2008) and that a new Code of Criminal Procedure (Law no. 5271) entered into force on 1 June 2005 in which there is no systemic restriction on the right of access to a lawyer.

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

17 . In that connection, it further points out that in accordance with the Court ’ s case-law and practice, reopening 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, 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, the Court notes that it falls, in the first place, to the national authorities to redress any violation of the Convention.

18 . 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 amo unts 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)). 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).

19 . 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 ).

20 . 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).

21 . In view of the above, it is appropriate to strike the cases out of the list as regards the complaints under Article 6 §§ 1 and 3 of the Convention.

22 . The applicant further complained that the length of the proceedings against him had been incompatible with the “reasonable time” requirement laid down in Article 6 § 1 of the Convention.

23 . The Government noted that pursuant to Law no. 6384 a new Compensation Commission had been established to deal with applications concerning the length of proceedings and the non-execution of judgments. They maintained that the applicant had not exhausted domestic remedies, as he had not made any application to the Compensation Commission: this ground had also been recognized by the Court in its decision in the case of Turgut and Others v. Turkey (( dec. ), no. 4860/09, 26 March 2013).

24 . The Court observes that, as pointed out by the Government, a new domestic remedy has been established in Turkey following the application of the pilot judgment procedure in the case of Ümmühan Kaplan v. Turkey (no. 24240/07, 20 March 2012). Subsequently, in its decision in the case of Turgut and Others (cited above), the Court declared a new application inadmissible on the ground that the applicants had failed to exhaust domestic remedies, that is to say the new remedy. In so doing, the Court considered in particular that this new remedy was a priori accessible and capable of offering a reasonable prospect of redress for complaints concerning the length of proceedings.

25 . The Court notes that in its judgment in the case of Ümmühan Kaplan (cited above, § 77) it stressed that it could nevertheless examine, under its normal procedure, applications of this type which had already been communicated to the Government.

26 . However, taking account of the Government ’ s preliminary objection with regard to the obligation of the applicant to make use of the new domestic remedy established by Law no. 6384, the Court reiterates its conclusion in the case of Turgut and Others (cited above). It therefore concludes that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

27 . It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

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 that part of the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention.

Declares the remainder of the application inadmissible.

Done in English and notified in writing on 21 November 2019 .

Hasan Bakırcı Julia Laffranque Deputy Registrar President