SECOND SECTION

DECISION

Application no. 65578/10 Emine SÖZEN and others against Turkey

The European Court of Human Rights (Second Section), sitting on 10 September 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 3 November 2010,

Having regard to the declaration submitted by the respondent Government on 30 April 2019 requesting the Court to strike the application out of the list of cases and the applicants ’ reply to that declaration,

Having deliberated, decides as follows:

FACTS AND PROCEDURE

1. A list of the applicants is set out in the appendix.

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

3. The applicants complained under Articles 2 and 13 of the Convention about the death of their relative.

4. The application had been communicated to the Government .

THE LAW

5. The applicants complained under Articles 2 and 13 of the Convention that that their relative, Mr A.S., had died in police custody. They stated that although it was indicated that their relative had committed suicide by taking the gun of a police officer who was on duty, in their view the circumstances remained unclear and no effective investigation had been conducted by the authorities. After the failure of attempts to reach a friendly settlement, by a letter of 30 April 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 out the application in accordance with Article 37 of the Convention.

6. The declaration provided as follows:

“ The Government regret the occurrence of individual cases of death in police custody, as in the circumstances of the present case, notwithstanding existing Turkish legislation and the resolve of the Government to prevent such actions.

The Government wish to express by way of unilateral declaration their acknowledgement that the circumstances surrounding the death of the applicants ’ relative and the investigation conducted into the death did not meet the standards enshrined in Article 2 of the Convention. The Government undertake to adopt all necessary measures to ensure that the right to life – including the obligation to carry out effective investigations – is respected in the future.

The Government of Turkey declare that they offer to pay jointly to the applicants Emine Sözen , Şeyhmus Sözen , Ramazan Sözen , Fevzi Sözen and Şaban Sözen , EUR 36,000 (thirty six thousand euros) to cover any and all non-pecuniary damage, as well as costs and expenses, 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 them, 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 17 May 2019, the applicants indicated that they were not satisfied with the terms of the unilateral declaration considering that the proposed compensation amount was insufficient.

8. 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”.

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 applicants wish 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 positive obligation of the member States to take steps to protect the right to life ( see L.C.B. v. the United Kingdom , 9 June 1998, § 36, Reports of Judgments and Decisions 1998 ‑ III) and 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).

12. 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 the application (Article 37 § 1 (c)). The Court stresses that its decision is without prejudice to the possibility for the applicants to exercise any other available remedies in order to obtain redress (see Jeronovičs v. Latvia ( dec. ), no. 547/02, § 54, 10 February 2009, and, mutatis mutandis , Jeronovičs , cited above, §§ 116-118).

13. 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 into the deaths of their relatives 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 friendly settlements or on the basis of unilateral declarations submitted by the Government.

14. 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 ).

15. 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 ( Josipovi ć v Serbia ( dec. ), no. 18369/07, 4 March 2008).

16. 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 u nder Article 2 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 3 October 2019 .

Hasan Bakırcı Julia Laffranque Deputy Registrar President

Appendix

No.

Applicant ’ s Name

Birth date

Nationality

Place of residence

1Emine SÖZEN

03/02/1947

Turkish

Ä° zmir

2Fevzi SÖZEN

20/10/1977

Turkish

Ä°zmir

3Ramazan SÖZEN

22/10/1980

Turkish

Ä° zmir

4Şaban SÖZEN

01/06/1972

Turkish

Ä°zmir

5Şeyhmus SÖZEN

23/04/1941

Turkish

Ä°zmir