SECOND SECTION

DECISION

Application no. 27061/09 Fatma DEMÄ° R against Turkey

The European Court of Human Rights (Second Section), sitting on 4 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 22 April 2009,

Having regard to the declaration submitted by the respondent Government on 28 August 2018 requesting the Court to strike the application out of the list of cases,

Having deliberated, decides as follows:

FACTS AND PROCEDURE

1. The applicant, Ms Fatma Demir , is a Turkish national, who was born in 1976 and lives in Izmir. She was represented before the Court by Mr S. Cengiz , a lawyer practising in Ä°zmir.

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

3. The part of the application concerning the length of the proceedings and the non-communication of the public prosecutors ’ opinions during the proceedings before the Supreme Administrative Court had been communicated to the Government.

4. The facts of the case, as submitted by the parties, may be summarised as follows.

5. In 2001, the applicant opened a high-interest account at İmar Bankası , a private bank. On an unspecified date the applicant ’ s deposits were transferred to the İmar Bank Off Shore Ltd., the off shore branch of İmar Bankası set up in the Turkish Republic of Northern Cyprus which provided higher interest rates. On 3 July 2003 the banking licence of İmar Bankası was cancelled and its control and administration was transferred to the Savings Deposit and Insurance Fund ( Tasarruf Mevduatı Sigorta Fonu , “the Fund”). The applicant ’ s money was still deposited at the off-shore account at the material time.

6. On 29 December 2003 the Cabinet issued a decision, which was published in the Official Gazette on 3 January 2004, regarding the modalities of payments to be made by the Fund to the depositors of İmar Bankası . The Cabinet decided, inter alia , that no payment would be made in respect of funds which were deposited in off shore accounts at the time of cancellation of the banking licence of İmar Bankası .

7. Upon finding out that she was not entitled to receive any payment from the Fund, on 10 March 2004 the applicant applied to the Banking Regulation and Supervision Agency ( Bankacılık Düzenleme ve Denetleme Kurulu, “the BRSA”) and demanded the payment of the money she had deposited at İmar Bankası , together with interest. She argued that the BRSA was accountable for the damage she had sustained, and therefore liable to compensate it, as it had failed in its supervisory duties vis-à-vis İmar Bankası .

8. On 19 July 2004 the applicant ’ s request for the reimbursement of her money by the BRSA, together with interest was registered at the Ankara Administrative Court.

9. On 28 December 2005 the Ankara Administrative Court dismissed the applicant ’ s case for having been brought outside the prescribed time-limit.

10. On 12 March 2007 the Supreme Administrative Court upheld the judgment of the first-instance court by a unanimous decision. It held that the administration had failed to reply to the applicant ’ s letter of 10 March 2004 within sixty days, which amounted to a tacit refusal of her claim under Section 11 (2) of the Administrative Procedure Act (Law no. 2577 of 6 January 1982). The written opinion submitted by the principal public prosecutor to the Supreme Administrative Court regarding the appeal request was not communicated to the applicant.

11. On 12 September 2008 the Supreme Administrative Court dismissed the applicant ’ s rectification request. The written opinion of the principal public prosecutor on the rectification request was not notified on the applicant. The final decision was served on the applicant on 14 November 2008.

THE COMPLAINTS

12. The applicant complained under Article 6 § 1 of the Convention that the administrative proceedings had not been concluded within a reasonable time and under Article 13 that there was no effective remedy under domestic law to challenge the length of these proceedings.

13. The applicant also maintained under Article 6 § 1 that the written opinions submitted by the principal public prosecutor to the Supreme Administrative Court during the appeal and rectification stages had not been communicated to her.

14. The applicant alleged under Article 6 § 1 of the Convention that the domestic courts had erred in the interpretation and application of procedural rules regarding the limitation periods in administrative proceedings.

15. Lastly, the applicant contended that she had been deprived of her savings as a result of the unfair decisions of domestic courts, which had breached her property rights under Article 1 of Protocol No. 1.

THE LAW

A. The non-communication of the public prosecutors ’ opinions submitted before the Supreme Administrative Court

16. After the failure of attempts to reach a friendly settlement, by a letter of 28 August 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.

17. The declaration provided as follows:

“I declare that the Government of Turkey offer to pay the applicant Fatma Demir, 400 (four hundred) euros to cover any pecuniary and non-pecuniary damage, plus any tax that may be chargeable and euros to cover all costs and expenses, 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 by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. 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 cases.

The Government consider that the absence of communication to the applicant of the public prosecutor ’ s observation submitted to the Supreme Administrative Court breached her right to a fair trial in the light of the well-established case-law of the Court ( Meral v. Turkey , no.33446102, 27 November 2007). They 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. The payment will constitute the final resolution of the case.”

18. 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”.

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 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).

21. The Court has established in a number of cases, including those brought against Turkey , its practice concerning complaints about the non ‑ communication of the public prosecutor ’ s written opinions to the applicants during appeal proceedings before the Supreme Administrative Court (see for example, Meral v. Turkey , no. 33446/02, §§ 32 ‑ 39, 27 November 2007).

22. 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)).

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 application (Article 37 § 1 in fine ).

24. The Court considers that this amount 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 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).

26. In view of the above, it is appropriate to strike this part of the application out of the list in so far as it relates to the above complaint .

B. The excessive length of proceedings

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

28. 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 she had not made any application to the Compensation Commission: this ground had also been recognised by the Court in its decision in the case of Turgut and Others v. Turkey (( dec. ), no. 4860/09, 26 March 2013).

29. 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.

30. 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.

31. 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.

C. Remaining complaints

32. As regards the remaining complaints raised under Articles 6 and 13 of the Convention, h aving regard to all the evidence in its possession, and in so far as it has jurisdiction to examine the allegations, the Court has not found any appearance of a breach of the rights and freedoms guaranteed by the Convention or its Protocols.

33. 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 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 17 January 2019 .

Hasan Bakırcı Ledi Bianku Deputy Registrar President