SECOND SECTION

DECISION

Application no. 11669/20 Özgür ARIKAN against Turkey

(see appended table)

The European Court of Human Rights (Second Section), sitting on 25 November 2021 as a Committee composed of:

Branko Lubarda, President, Pauliine Koskelo, Marko Bošnjak, judges,

and Viktoriya Maradudina, Acting Deputy Section Registrar,

Having regard to the above application lodged on 17 February 2020,

Having regard to the declaration submitted by the respondent Government requesting the Court to strike the application out of the list of cases,

Having deliberated, decides as follows:

FACTS AND PROCEDURE

The applicant’s details are set out in the appended table.

The applicant’s complaints under Article 6 § 1 of the Convention concerning breaches of his right to a reasoned judgment and of the principle of legal certainty owing to the divergent case-law among the different chambers of the Court of Cassation concerning the offence of insult in the absence of the victim ( gıyapta hakaret ) were communicated to the Turkish Government (“the Government”).

THE LAW

The Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issues raised by these complaints. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.

The Government acknowledged the violation of the applicant’s rights under Article 6 § 1 of the Convention in the light of the well-established case ‑ law of the Court. They offered to pay the applicant the amount detailed in the appended table and invited the Court to strike the application out of the list of cases in accordance with Article 37 § 1 (c) of the Convention. The amount would be converted into the national currency of Turkey at the rate applicable at the date of payment and would be payable within three months from the date of notification of the Court’s decision. In the event of failure to pay this amount within the above-mentioned three-month period, the Government undertook to pay simple interest on it, from the 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 applicant was sent the terms of the Government’s unilateral declaration on 5 August 2021. The Court has received a response from the applicant on 13 October 2021 refusing the terms of the declaration.

The Court observes that Article 37 § 1 (c) enables it 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”.

Thus, it may strike out applications 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 (see, in particular, the Tahsin Acar v. Turkey judgment (preliminary objections) [GC], no. 26307/95, §§ 75 ‑ 77, ECHR 2003-VI).

The Court has established clear and extensive case-law concerning complaints relating to the right to a reasoned judgment (see, for example, Moreira Ferreira v. Portugal (no. 2) [GC], no. 19867/12, §§ 84-85, 11 July 2017, and Ayetullah Ay v. Turkey , nos. 29084/07 and 1191/08, §§ 172-92, 27 October 2020) and those relating to the principle of legality owing to the existence of divergent case-law (see Hayati Çelebi and Others v. Turkey , no. 582/05, §§ 52-67, 9 February 2016).

The Court also takes note of the fact that on 31 July 2018 the Turkish Law No. 7145 entered into force. Articles 4, 17, 18 and 19 of this new law provide for a right to request the reopening of domestic court proceedings or investigation following the Court’s decision to strike out a case on the basis of a friendly settlement or a unilateral declaration. The Court has already stressed on several occasions that the reopening of the domestic proceedings is the most appropriate way to provide an effective solution to an alleged breach. In this connection, bearing in mind the Court’s subsidiary role in protecting the rights and freedoms guaranteed by the Convention and its protocols, it falls in the first place to the national authorities to redress any violation of the Convention.

Noting 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)) (see Ayetullah Ay , cited above, § 203, and Hayati Çelebi and Others , cited above, § 74).

In the light of the above considerations, 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 ).

Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the application may be restored to the list in accordance with Article 37 § 2 of the Convention (see Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008).

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 and of the arrangements 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 December 2021.

Viktoriya Maradudina Branko Lubarda Acting Deputy Registrar President

APPENDIX

Application raising complaints under Article 6 § 1 of the Convention

(Rights to a reasoned judgment and the principle of legal certainty)

Application no. Date of introduction

Applicant’s name

Year of birth

Date of receipt of Government’s declaration

Date of receipt of applicant’s comments

Amount awarded for pecuniary and non-pecuniary damage and costs and expenses

per applicant

(in euros) [1]

11669/20

17/02/2020

Özgür ARIKAN

1985

13/07/2021

13/10/2021

4,950

[1] Plus any tax that may be chargeable to the applicant