SECOND SECTION

DECISION

Application no . 36865/12 Nılüfer ŞAH İ N against Turkey

The European Court of Human Rights ( Second Section ), sitting on 5 September 2017 as a Committee composed of:

Ledi Bianku, President, Valeriu Griţco, Stéphanie Mourou-Vikström, judges,

and Hasan Bakırcı , Deputy Section Registrar ,

Having regard to the above application lodged on 4 May 2012 ,

Having regard to the declaration submitted by the respondent Government on 21 April 2017 requesting the Court to strike the application out of the list of cases and the applicant ’ s reply to that declaration,

Having deliberated, decides as follows:

FACTS AND PROCEDURE

1. The applicant, Ms Nilüfer Şahin , is a Turkish national, who was born in 1973 and is detained in Ankara . She was represented before the Court by Ms R. Aytaç Sala , a lawyer practising in Istanbul .

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

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

4. On 5 October 2004 the applicant was placed in detention on suspicion of membership of an illegal armed organisation.

5. Subsequently, criminal proceedings were initiated against the applicant before the Ankara Assize Court.

6. During the hearings held on 21 February and 24 July 2012 the applicant ’ s requests for release pending trial were rejected.

7. The applicant filed objections against these decisions. On 5 April and 27 July 2012, respectively, the 12 th Chamber of the Ankara Assize Court dismissed these objections relying mainly on the public prosecutor ’ s written opinions, which were not communicated to them or to their representatives .

COMPLAINT

8. The applicant complained under Article 5 § 4 of the Convention that she did not have an effective remedy to challenge the lawfulness of her detention on account of the non-communication of the prosecutor ’ s written opinions.

THE LAW

9 . After the failure of attempts to reach a friendly settlement, by a letter of 1 3 April 2017, 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 of the Republic of Turkey hereby wishes to express by way of unilateral declaration its acknowledgement that the applicant ’ s right to liberty and security did not meet the standards enshrined in Article 5 § 4 of the Convention.

I declare that the Government accordingly offer to pay the applicant EUR 1 5 0 (one hundred and fifty euros ) to cover any and all pecuniary and non-pecuniary damages and EUR 150 (one hundred and fifty euros ) to cover any and all cost s and expenses, plus any tax that may be chargeable to the applicant s .

The Government therefore invites the court to strike the present case out of the list of cases. It states suggests that the present declaration might be accepted by the Court as “any other reason” to justify the striking out of the case of the Court ’ s list of cases, as referred in Article 37 §1 (c) of the Convention.

These sums will be converted into the local currency 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 c ases. I n the event of failure to pay this sum within said three-month period, the Government undertakes to pay simple interest on it, 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. ”

10 . By a letter of 16 May 2017 , the applicant indicated that she was not satisfied with the terms of the unilateral declaration .

11 . 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”.

12 . 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.

13 . 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. 28953/0 3, 18 September 2007).

14 . The Court has established in a number of cases, including those brought against Turkey, its practice con cerning complaint about the non ‑ communication of the public prosecutor ’ s opinion during the proceedings to challenge the lawfulness of the detention (see, for example, Altınok v. Turkey , no. 31610/08, §§ 57-61, 29 November 2011 , and Ceviz v. Turkey , no. 8140/08 , §§ 51-60, 17 July 2012 ) .

15 . Having regard to the nature of the admissions contained in the Government ’ s declaration, as well as the am ount of compensation proposed – which is consistent with the a mounts awarded in similar cases ‑ the Court considers that it is no longer justified to continue the examination of the application (Article 37 § 1 (c)).

16 . 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 examinat ion of the application (Article 37 § 1 in fine ).

17 . The Court considers that these amounts 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 amounts in question at a rate equal to the marginal lending rate of the European Central Bank plus three percentage points.

18 . 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. 18369/0 7, 4 March 2008).

19 . 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 5 § 4 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 28 September 2017 .

Hasan Bakırcı Ledi Bianku              Deputy Registrar President