SECOND SECTION

DECISION

Application no . 72785/10 Erol GÃœNER against Turkey

The European Court of Human Rights (Second Section), sitting on 17 May 2016 as a Committee composed of:

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

and Milan Blaško, Acting Deputy Section Registrar ,

Having regard to the above application lodged on 8 November 2010,

Having regard to the declaration submitted by the respondent Government on 19 March 2013 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 Erol Güner, is a Turkish national, who was born in 1979 and lives in I stanbul. He was represented before the Court by Mr H. Erdoğan, a lawyer practising in Ankara.

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 February 2010 the applicant was placed in detention on remand on suspicion of benefiting from the use of fake credit and bank cards as well as founding a criminal organization.

5. On various dates the applicant applied for his release from detention on remand. These applications were dismissed by the courts, having regard to the nature of the offences with which the applicant was charged, the existence of a strong suspicion that the applicant had committed the offence, the state of the evidence, the risk of absconding and tampering with evidence, and taking into consideration the time spent in detention. The applicant objected to these decisions. On 22 April 2010, 31 May 2010, 24 June 2010 and 20 October 2010 his objections were rejected by the appeal courts based on the file and without holding an oral hearing.

6. Upon his application, on 9 February 2011, the applicant was released from detention on remand.

7. At the time of the introduction of the application, the trial stage had not been started yet.

COMPLAINTS

8. The applicant complained under Article 5 § 3 of the Convention about the length of his pre-trial detention.

9. The applicant complained under Article 5 § 4 of the Convention that there had been no effective remedy to challenge the lawfulness of his detention.

10. Relying upon Article 6 § 1 of the Convention, the applicant complained about the excessive length of the criminal proceedings against him.

THE LAW

A. As to the complaint regarding the length of detention

11. Relying on Article 5 § 3 of the Convention the applicant complained about the length of his pre-trial detention.

12. The Court notes that the applicant ’ s pre-trial detention lasted one year, from 10 February 2010 to 9 February 2011.

13. The Court observes that the applicant applied to be released on various times. The domestic courts dismissed these applications relying on the nature of the offense and the risk of absconding. On this point, the Court recalls that the seriousness of the charges is to be taken into consideration when assessing the risk of absconding. While it is true that the seriousness of the charges cannot in itself justify the long periods of detention (Ilijkov v. Bulgaria , no. 33977/96, §§ 80-81, 26 July 2001), the Court found that in the circumstances of this case, given the nature of the charges to the applicant and given the amount of time spent in detention, judicial authorities could be considered as legitimately having established the persistent risk of absconding.

14. The Court further observes that prolonging the applicant ’ s detention the domestic courts also had had regard to the risk of tampering with evidence, the fact that the investigation was ongoing and the evidence had not been collected. Accordingly, on 9 February 2011, upon his application, during the pre-trial stage, the court released the applicant taking into account the fact that in spite of the time he had served in detention the evidence had not been fully collected. In that context, the applicant did not submit any document or argument demonstrating that the length of his detention on remand was attributable to a lack of special diligence on the part of the authorities (see Kılıçöz v. Turkey (dec.), no. 26662/05, 14 September 2010).

15. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

B. As to the complaints about the lack of an effective remedy to challenge the lawfulness of detention and the length of criminal proceedings

16. The applicant complained under Article 5 § 4 of the Convention that there had been no effective remedy to challenge the lawfulness of his detention since his applications for release from detention on remand were rejected by the appeal courts without holding an oral hearing. The applicant further complained under the same provision that on account of the restriction placed on the investigation file, he had not been able to challenge the evidence which had constituted the grounds for his arrest and continued detention. Relying on Article 6 § 1 of the Convention the applicant further complained about the length of criminal proceedings.

17. After the failure of attempts to reach a friendly settlement, by a letter of 19 March 2013 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by this part of the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.

18. The declaration provided as follows:

“Je déclare que le gouvernement de la République de Turquie offre de verser au requérant Erol GÜNER, la somme de 2 250 EUR (deux mille deux cent cinquante euros) couvrant tout préjudices matériel et moral ainsi que l ’ ensemble des frais et dépens, plus tout montant pouvant être dû à titre de taxe et d ’ impôt par le requérant.

Cette somme sera convertie en livres turques au taux applicable à la date du paiement, et exempte de toute taxe éventuellement applicable. Elle sera payée dans les trois mois suivant la date de la notification de la décision de la Cour rendue conformément à l ’ article 37 § 1 de la Convention européenne des droits de l ’ homme. À défaut de règlement dans ledit délai, le Gouvernement s ’ engage à verser, à compter de l ’ expiration de celui-ci et jusqu ’ au règlement effectif de la somme en question, un intérêt simple à un taux égal à celui de la facilité de prêt marginal de la Banque centrale européenne, augmenté de trois points de pourcentage. Ce versement vaudra règlement définitif de l ’ affaire.

Le Gouvernement reconnait également que le droit du requérant de contester effectivement la légalité de sa détention provisoire garanti par l ’ article 5 § 4 de la Convention et le droit à être jugé dans un délai raisonnable au sens de l ’ article 6 § 1 de la Convention ont été méconnus en l ’ espèce.

Le Gouvernement invite respectueusement la Cour à dire qu ’ il ne se justifie plus de poursuivre l ’ examen de la requête et à la rayer de rôle conformément à l ’ article 37 de la Convention.”

19. By a letter of 30 April 2013, the applicant indicated that he was not satisfied with the terms of the unilateral declaration.

20. 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”.

21. 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.

22. To this end, the Court has examined the declaration carefully 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).

23. The Court has established in a number of cases, including those brought against Turkey , its practice concerning complaints about the excessive length of proceedings (see, for example, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII; Cocchiarella v. Italy [GC], no. 64886/01, §§ 69-98, ECHR 2006 ‑ V; Majewski v. Poland , no. 52690/99, 11 October 2005; and Wende and Kukówka v. Poland , no. 56026/00, 10 May 2007), and the lack of an oral hearing in determination of the lawfulness of the detention (see, for example, Altınok v. Turkey , no. 31610/08 , 29 November 2011 ).

24. 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 this part of the application (Article 37 § 1 (c)).

25. Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the topics, 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 ).

26. The Court considers that this amount should be converted into currency of the 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.

27. Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, this part of 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).

28. In view of the above, it is appropriate to strike the case out of the list in so far as it relates to the above complaints .

For these reasons, the Court, unanimously,

Takes note of the terms of the respondent Government ’ s declaration under Articles 5 § 4 and 6 § 1 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;

Decides to strike this part of the application 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 9 June 2016 .

Milan Blaško Ksenija Turković Acting Deputy Registrar President