SECOND SECTION

DECISION

Application no . 4249/09 Hamza AKKAÅž and others against Turkey

The European Court of Human Rights (Second Section), sitting on 24 January 2017 as a Committee composed of:

Ksenija Turković, President, Jon Fridrik Kjølbro, Georges Ravarani, judges,

and Hasan Bakırcı, Deputy Section Registrar ,

Having regard to the above application lodged on 24 December 2008,

Having regard to the declaration submitted by the respondent Government on 27 June 2016 requesting the Court to strike the application out of the list of cases and the applicants ’ reply to that declaration,

Having deliberated, decides as follows:

FACTS AND PROCEDURE

1. A list of the applicants is set out in the appendix.

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 12 May 2006 Mr Hamza AkkaÅŸ and Mr Diyadin Akdemir, and on 18 July 2006 Mr Mehmet Nesih Aslan were placed in pre-trial detention on suspicion of being members of an illegal organisation.

5. Subsequently, criminal proceedings were instituted against them. In the hearing held on 10 October 2008, the applicants ’ release request was rejected by the 10 th Chamber of Istanbul Assize Court. The applicants objected to this decision.

6. On 27 October 2008 the 12 th Chamber of Istanbul Assize Court dismissed these objections on the basis of the case file, without holding a hearing. In delivering its decision, the court also took note of the opinion of the public prosecutor, which had not been communicated to the applicants or their representative.

7. On 25 April 2012 the applicants were found guilty as charged. On 13 September 2013 the Court of Cassation upheld this judgment.

COMPLAINTS

8. The applicants complained under Article 5 §§ 4 and 5 of the Convention about the non-communication of the public prosecutor ’ s opinion during the proceedings to challenge the lawfulness of their detention and the right to compensation under domestic law in respect of this complaint.

THE LAW

9. The applicants complained about the non-communication of the public prosecutor ’ s opinion during the proceedings to challenge the lawfulness of the detention and the right to compensation under domestic law in respect of this complaint. They relied on Article 5 §§ 4 and 5 of the Convention.

10. After the failure of attempts to reach a friendly settlement, by a letter of 27 June 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:

“ The Government of Republic of Turkey hereby wishes to express by way of unilateral declaration its acknowledgement that in the above-mentioned case pending before the European Court of Human Rights the rights to liberty and security of the applicants Hamza Akkaş, Diyadin Akdemir and Mehmet Nesih Aslan, did not meet the standarts enshrined in Article 5 § 4 and Article 5 § 5 of the Convention and that there has been a violation of Article 5 § 4 (non-communication of the public prosecutor ’ s opinion) and Article 5 § 5 (lack of, or inadequate compensation for detention under domestic law) of the Convention in present case.

Consequently, the Government is prepared to pay the applicants, EUR 170 (one hundred seventy euros) each to cover any and all non-pecuniary damage and EUR 425 (four hundred and twenty-five euros) each to cover any and all costs and expenses, plus any tax that may be chargeable to the applicants. This sum will be converted into the national currency at the rate applicable on the date of payment, and will be free of any further taxes that may be applicable. It will 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. In 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.

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

11. The applicants did not respond to the unilateral declaration of the Government.

12. 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”.

13. 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 applicants wish the examination of the case to be continued.

14. 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).

15. The Court has established in a number of cases, including those brought against Turkey, its practice concerning complaint about the non-communication of the public prosecutor ’ s opinion during the proceedings to challenge the lawfulness of the detention and right to compensation under domestic law in respect of this complaint (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 ).

16. 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)).

17. 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 ).

18. 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.

19. 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).

20. 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 and 5 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 16 February 2017 .

Hasan Bakırcı Ksenija Turković              Deputy Registrar President

Appendix