SECOND SECTION

DECISION

Application no. 54768/11 Hamdiye K ILINÇ and O thers against Turkey

The European Court of Human Rights (Second Section), sitting on 18 December 2018 as a Committee composed of:

Ledi Bianku, President, Jon Fridrik Kjølbro, Ivana Jelić, judges, and Hasan Bakırcı, Deputy Section Registrar ,

Having regard to the above application lodged on 16 June 2011,

Having regard to the declaration submitted by the respondent Government on 8 January 2018 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. On 3 April 2010 t he applicants ’ relative was found seriously injured in his prison cell and taken to hospital where he subsequently lost his life . The investigation into the death was closed by a prosecutor who considered that the applicants ’ relative had climbed on the door in his cell, lost his balance, and fallen on top of the door .

4. The application had been communicated to the Government .

THE LAW

5. The applicants complained that their relative ’ s death and the ensuing investigation had been in breach of Article 2 of the Convention.

6. After the failure of attempts to reach a friendly settlement, by a letter of 8 January 2018 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.

The declaration provided as follows:

“The Government regret the occurrence of individual cases of death caused by failures to protect life, as in the circumstances of the present case, notwithstanding existing Turkish legislation and the resolve of the Government to prevent such failures.

The Government admit 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 issue appropriate instructions and adopt all necessary measures to ensure that the right to life – including the obligation to carry out effective investigations – is respected in the future.

With a view to securing unilateral declaration of the above-mentioned case pending before the European Court of Human Rights, the Government of Turkey declare that they offer to pay jointly to the applicants EUR 18,000 (eighteen thousand euros) to cover any and all non-pecuniary damage, plus any tax that may be chargeable .

These sums 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 these sums 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 13 March 2018, the applicants indicated that they were not satisfied with the terms of the unilateral declaration on the grounds that the subject matter of the case was a very serious incident into which no effective investigation had been carried out, that the amount proposed by the Government was too insufficient and that the Government had not taken any steps to prevent similar breaches.

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; see also Jeronovičs v. Latvia [GC], no. 44898/10 , 5 July 2016 ).

11. The Court notes that the subject matter of the present application concerns the Member States ’ obligation to take steps to protect the right to life. That obligation is clearly recognised and established in the Court ’ s case-law and the Court has stressed in a number of cases, including those brought against Turkey , that the first sentence of Article 2 § 1 enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (see L.C.B. v. the United Kingdom , 9 June 1998, § 36, Reports of Judgments and Decisions 1998 ‑ III; see also Çoşelav v. Turkey , no. 1413/07, § 53, 9 October 2012).

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. The Court notes that the investigation into the death of the applicants ’ relative was also closed by a prosecutor (see paragraph 3 above).

14. In the light of the foregoing, 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 o f 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 ( Josipović 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 under 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 24 January 2019 .

Hasan Bakırcı Ledi Bianku Deputy Registrar President

Appendix

No.

Firstname LASTNAME

Birth year

Nationality

Place of residence

Representative

Hamdiye KILINÇ

1979Turkish

UÅŸak

N. PaÅŸa

Asya KILINÇ

1997Turkish

UÅŸak

N. PaÅŸa

Berfin KILINÇ

2003Turkish

UÅŸak

N. PaÅŸa

Fikret KILINÇ

1972Turkish

UÅŸak

N. PaÅŸa

Memduh KILINÇ

1964Turkish

UÅŸak

N. PaÅŸa

Mizgin KILINÇ

1999Turkish

UÅŸak

N. PaÅŸa

Osman KILINÇ

1946Turkish

Mardin

N. PaÅŸa

Sultani KILINÇ

1946Turkish

Mardin

N. PaÅŸa