SECOND SECTION

DECISION

Application no . 19882/10 Abdulaziz ASLAN against Turkey

The European Court of Human Rights (Second Section), sitting on 28 February 2017 as a Committee composed of:

Paul Lemmens , President, Ksenija Turković , Jon Fridrik Kjølbro, judges, and Hasan Bakırcı, Deputy Section Registrar ,

Having regard to the above application lodged on 23 March 2010,

Having regard to the declaration submitted by the respondent Government on 14 November 2016 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, Mr Abdulaziz Aslan, is a Turkish national, who was born in 1964 and lives in Ä°zmir. He was represented before the Court by Mr M. Ä°ÅŸeri , a lawyer practising in Ä° zmir .

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 7 October 2009 the applicant was arrested and taken into police custody on suspicion of drug trafficking.

5. On 8 October 2009 the İzmir Magistrates ’ Court ordered the applicant ’ s detention on remand.

6. The applicant filed an objection against this decision. On 19 October 2009 the İzmir Criminal Court dismissed the applicant ’ s objection taking into consideration the written opinion of the public prosecutor, which had not been communicated to the applicant or his representative.

7. On 24 November 2009 the Ä°zmir public prosecutor filed an indictment with the Ä°zmir Assize Court.

8. On 4 December 2009 the İzmir Assize Court held a preparatory hearing and decided that the applicant ’ s detention should continue.

9. The applicant filed an objection against this decision. On 11 December 2009 his objection was dismissed by the appeal court without holding an oral hearing. In delivering its decision, the court took into consideration the written opinion of the public prosecutor, which had not been communicated to the applicant or his representative.

10. On 26 January 2010 the first hearing was held in the proceedings against the applicant. At the time of the application the case was still pending before the first-instance court.

COMPLAINTS

11. Relying on Articles 5 § 4, 6 and 13 of the Convention, the applicant complained about the lack of adversarial proceedings in review of the lawfulness of his detention and the non-communication of the public prosecutor ’ s opinion during the same proceedings. He also complained that there had been no effective remedy in domestic law in respect of his complaints.

THE LAW

12. Relying on Articles 5 § 4, 6 and 13 of the Convention, the applicant complained about procedural deficiencies in the proceedings related to the review of the lawfulness of his detention on remand. He also complained that there had been no effective remedy whereby he could effectively challenge his detention.

13. The Court considers that the applicant ’ s complaints under Article 6 and 13 of the Convention should be examined under Article 5 § 4 of the Convention, being the lex specialis in the matter.

14. After the failure of attempts to reach a friendly settlement, by a letter of 14 November 2016 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 the Republic of Turkey offers to pay to the applicant, Mr Abdulaziz ASLAN, the amount of 1 350 (one thousand three hundred and fifty) Euros in respect of the application registered under no. 9882/10.

This sum, which is considered to be appropriate in the light of the jurisprudence of the Court, covers any pecuniary and non-pecuniary damage as well as costs, and shall be paid in Turkish Liras, free of any tax that may be applicable. The sum shall be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. This payment will constitute the final resolution of the case.

The Government considers that in the present case, the remedy available to the applicant to challenge the lawfulness of his detention on remand was not in accordance with the requirements established by the case-law of the Court, failed to meet the standards enshrined in Article 5 § 4 of the European Convention on Human Rights ( Altınok v. Turkey , no. 31610/08 , 29 November 2011.) The Government respectfully invites the Court to declare that it is not justified anymore to continue the examination of the application and strike the case out of its lists in accordance with Article 37 of the Convention. ”

15. By a letter of 16 December 2016, the applicant indicated that he was not satisfied with the terms of the unilateral declaration.

16. 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”.

17. The Court 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.

18. 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).

19. The Court has established in a number of cases, including those brought against Turkey , its practice concerning complaints about the lack of an oral hearing and non-communication of the public prosecutor ’ s opinion during the proceedings to challenge the lawfulness of a detention (see, for example, Altınok v. Turkey , no. 31610/08 , 29 November 2011 ).

20. 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 by the Court in similar cases – the Court considers that it is no longer justified to continue the examination of the application (Article 37 § 1 (c)).

21. 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 ).

22. The Court considers that in the event of failure to settle the payment within the period indicated by the Government, 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.

23. 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).

24. 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 23 March 2017 .

Hasan Bakırcı Paul Lemmens Deputy Registrar President