SECOND SECTION

DECISION

Application no. 32881/11 Mahide KALAY and Bahri KALAY against Turkey

The European Court of Human Rights (Second Section), sitting on 6 February 2018 as a Committee composed of:

Ledi Bianku, President, Nebojša Vučinić, Jon Fridrik Kjølbro, judges,

and Hasan Bakırcı, Deputy Section Registrar ,

Having regard to the above application lodged on 20 April 2011,

Having regard to the formal declarations accepting a friendly settlement of the case,

Having deliberated, decides as follows:

FACTS AND PROCEDURE

The applicants, Ms Mahide Kalay and Mr Bahri Kalay, are Turkish nationals, who were born in 1981 and 1965 respectively and live in Istanbul. They were represented before the Court by Mr V. Soytekin, a lawyer practising in Istanbul.

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

The applicants complained under Article 6 of the Convention about the death of their son in a municipal fountain and of the ineffectiveness of the judicial proceedings conducted in the aftermath of the incident.

On 5 January 2018 the Court received the following declaration signed by the Government:

“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 death of the applicants ’ son resulting from the failure to provide protective measures and the judicial proceedings concerning 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 conduct such proceedings effectively – is respected in the future.

The Government of Turkey declare that they offer to pay jointly to the applicants Mahide Kalay and Bahri Kalay, with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights, EUR 15,000 (fifteen thousand euros) to cover any and all non-pecuniary damage, plus any tax that may be chargeable, and EUR 2,000 (two thousand euros) to cover any and all costs and expenses, plus any tax that may be chargeable to the applicants.

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.”

On 2 May 2017 the Court received the following declaration signed by the applicants:

“I, Vural Soytekin, note that the Government of Turkey are prepared to pay jointly to Mahide Kalay and Bahri Kalay, with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights, EUR 15,000 (fifteen thousand euros) to cover any and all non-pecuniary damage, plus any tax that may be chargeable, and EUR 2,000 (two thousand euros) to cover any and all costs and expenses, plus any tax that may be chargeable to the applicants.

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. From the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

Having consulted the applicants, I would inform you that they accept the proposal and waive any further claims against Turkey in respect of the facts giving rise to this application. They declare that this constitutes a final resolution of the case.”

THE LAW

The Court takes note of the friendly settlement reached between the parties. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no reasons to justify a continued examination of the application. In view of the above, it is appropriate to strike the case out of the list.

For these reasons, the Court, unanimously,

Decides to strike the application out of its list of cases in accordance with Article 39 of the Convention.

Done in English and notified in writing on 1 March 2018 .

Hasan Bakırcı Ledi Bianku              Deputy Registrar President