SECOND SECTION

DECISION

Application no. 54190/08 Ahmet Bülent ÖZKAN against Turkey

The European Court of Human Rights (Second Section), sitting on 6 November 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 1 November 2008,

Having regard to the declaration submitted by the respondent Government on 22 January 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, Mr Ahmet Bülent Özkan , is a Turkish national, who was born in 1956 and lives in İ zmir. He was represented before the Court by Mr B. Kaşka , a lawyer practising in İzmir .

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

3. The applicant, a military officer, was declared unfit for military service and in 1998 he was discharged from the Army. Subsequently, the applicant initiated several sets of proceedings arguing that he had to benefit from service related disability pensions. His cases were dismissed, and the final decision was delivered on 16 October 2008 by the Supreme Military Administrative Court.

4. The applicant complained under Article 6 § 1 of the Convention about the non-communication of the Principle Public Prosecutor ’ s written opinion to him in the proceedings before the Supreme Military Administrative Court . He further stated that the outcome of the proceedings was unfair and that Articles 13, 17 and 18 of the Convention were breached.

5. The application had been communicated to the Government .

THE LAW

6. The applicant complained that the non-communication of the Principal Public Prosecutor ’ s written opinion submitted to the Supreme Military Administrative Court during the proceedings had violated his right to an adversarial and fair hearing. In this respect, he relied on Article 6 § 1 of the Convention. He further stated that the outcome of the proceedings was unfair and argued that Articles 13, 17 and 18 of the Convention were breached.

7. After the failure of attempts to reach a friendly settlement, by a letter of 22 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:

“I declare that the Government of Turkey offer to pay the applicant Ahmet Bülent Özkan , EUR 400 (four 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 the 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 absence of communication to the applicant of the public prosecutor ’ s observation submitted to the Supreme Military Administrative Court breached his right to a fair trial in the light of the well-established case-law of the Court ( Meral v. Turkey, no.33446/02, 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.”

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 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 those brought against Turkey , its practice concerning complaints about non-communication of the public prosecutor ’ s written opinion during proceedings to applicants (see, for example, Meral v. Turkey (no. 33446/02, §§ 32 ‑ 39, 27 November 2007 ).

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)).

13. 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 ).

14. The Court considers that this amount should be converted into currency of respondent State 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.

15. Furthermore, 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 as regards the complaint concerning the non-communication of the Principal Public Prosecutor ’ s written opinion during the proceedings before Supreme Military Administrative Court.

17. Finally, t he Court has examined the remaining complaints and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, these complaints do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto.

18. It follows that this part of the application must be rejected in accordance with Article 35 § 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 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;

Decides to strike the application in the part covered by the Government ’ s unilateral declaration 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 29 November 2018 .

Hasan Bakırcı Ledi Bianku Deputy Registrar President