SECOND SECTION

DECISION

Applications nos. 55048/07 and 6692/08 Çetin ŞAY and Hazim KESKİ NER against Turkey and Tayyip KESKİNER and Ali Ş EYLAN against Turkey

The European Court of Human Rights (Second Section), sitting on 2 April 2019 as a Committee composed of:

Valeriu Griţco , President, Ivana Jelić , Darian Pavli, judges,

and Hasan Bakırcı, Deputy Section Registrar ,

Having regard to the above applications lodged on 3 December 2007 and 29 January 2008 respectively,

Having regard to the declarations submitted by the respondent Government on 22 November 2018 requesting the Court to strike the applications out of the list of cases,

Having deliberated, decides as follows:

FACTS AND PROCEDURE

1. The applicants in the first case, Mr Çetin Şay and Mr Hazım Keskiner , are Turkish nationals, who were born in 1975 and 1947 respectively. They were represented before the Court by Mr A. Bayar, a lawyer practising in Van. On 17 July 2017 the Court was informed that Mr Hazım Keskiner had died on 30 September 2009.

2. The applicants in the second case, Mr Tayyip Keskiner and Mr Ali Åžeylan , are Turkish nationals, who were born in 1954 and 1974 respectively. They were represented before the Court by Mr A. Bayar, a lawyer practising in Van. On 17 July 2017 the Court was informed that Mr Tayyip Keskiner had died on 19 January 2016.

3. No relatives of the deceased applicants have expressed their wish to maintain the applications.

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

5. Relying on Law No. 5233 on the compensation of damages resulting from terrorism and the measures taken against terrorism, the applicants applied to the compensation commission and requested to be awarded compensation due to their forced evacuation from their village. Their requests were rejected. Subsequently, they initiated proceedings before the Van Administrative Court to have the said decisions annulled. On 7 July 2006 and 28 July 2006, respectively, the Van Administrative Court rejected their legal aid requests although the applicants had provided the courts with documents attesting to their poor financial status. Subsequently, on 21 September 2007 the administrative courts decided to discontinue the proceedings since the necessary court fees were not deposited with the registry of the court. The applicants complained under Article 6 of the Convention that they had been denied access to a court on account of the administrative courts ’ refusal to grant them legal aid to pay the court fees.

6. The part of the applications concerning the refusal of the authorities to grant legal aid to the applicants had been communicated to the Government .

THE LAW

7. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.

A. As to Mr Hazım Keskiner and Mr Tayyip Keskiner

8. By a letter of 17 July 2017 the Government informed the Court that the applicants Mr Hazım Keskiner and Mr Tayyip Keskiner had died on 30 September 2009 and 19 January 2016 respectively.

9. By a letter of 15 November 2017 the Registry asked the applicants ’ representative to indicate by 17 December 2018 whether the heirs of the deceased applicants had wished to pursue the applications.

10. No reply was received from the applicants ’ representative on this matter.

11. The Court observes that both applicants have died following the introduction of the applications and no heirs or family members have expressed a wish to continue the proceedings before the Court in their stand.

12. In the light of the foregoing, the Court considers that it is no longer justified to continue the examination of the application as regards the deceased applicants.

13. It therefore decides to strike the applications out of the list in respect of Mr Hazım Keskiner and Mr Tayyip Keskiner and pursue the remainder of the applications.

B. As to the remaining applicants

14. The applicants complained that they had been denied access to a court on account of the domestic courts ’ refusal to grant them legal aid to pay the court fees. They relied on Article 6 of the Convention.

15. After the failure of attempts to reach a friendly settlement, by a letter of the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by the applications. They further requested the Court to strike out the applications in accordance with Article 37 of the Convention.

16. Both declarations submitted in respect of the two applicants, namely Mr Çetin Şay and Mr Ali Şeylan are identical and they provided as follows:

“I declare that the Government of Turkey offer to pay the applicant 2,500 euros to cover any pecuniary and non-pecuniary damage, plus any tax that may be chargeable to the applicant with a view to resolving the above-mentioned cases 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 of the Court pursuant to Article 37 § 1 of the European Convention of 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 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.

The Government consider that the inability of the applicant to access to a court on account of the Van Administrative Court ’ s refusal to grant him legal aid to pay the court fees, breached his right to a fair trial in the light of the well-established case-law of the Court ( Ilbeyi Kemaloğlu and Meriye Kemaloğlu v. Turkey, no. 19986/06, 10 April 2012). The Government further emphasise that Article 53 § 1 of the Code of Administrative Procedure, as amended by Law no. 7145 of 31 July 2018, now requires the reopening of the 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 applicant ’ s complaints under Article 6 of 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.”

17. By a letter of 10 January 2019, the applicants ’ representative indicated that they were not satisfied with the terms of the unilateral declarations.

18. 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”.

19. 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.

20. To this end, the Court has examined the declarations 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).

21. The Court has established in a number of cases, including those brought against Turkey, its practice concerning complaints about the refusal of the authorities to grant legal aid (see, for example, Ilbeyi KemaloÄŸlu and Meriye KemaloÄŸlu v. Turkey , no. 19986/06, 10 April 2012).

22. Having regard to the nature of the admissions contained in the Government ’ s declarations, as well as the amounts of compensation proposed – which are consistent with the amounts awarded in similar cases – the Court considers that it is no longer justified to continue the examination of the applications (Article 37 § 1 (c)).

23. 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 applications (Article 37 § 1 in fine ).

24. The Court considers that these amounts should be converted into Turkish liras at the rate applicable at the date of payment, and paid within three months from the date of notification of the Court ’ s decision issued in accordance with Article 37 § 1 of the European Convention on Human Rights. In the event of failure to settle within this period, simple interest shall be payable on the amount in question at a rate equal to the marginal lending rate of the European Central Bank plus three percentage points.

25. Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declarations, the applications 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).

26. In view of the above, it is appropriate to strike the applications out of the list in so far as they concern Mr Çetin Say and Mr Ali Ş eylan .

For these reasons, the Court, unanimously,

Decides to join the applications;

Takes note of the terms of the respondent Government ’ s declarations submitted in respect of Mr Çetin Şay and Mr Ali Şeylan under Article 6 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;

Decides to strike that the applications lodged by Mr Hazım Keskiner and Mr Tayyip Keskiner out of its list of cases in accordance with Article 37 § 1 (c) of the Convention.

Done in English and notified in writing on 9 May 2019 .

Hasan Bakırcı Valeriu Griţco Deputy Registrar President