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URL: http://www.bailii.org/eu/cases/ECHR/2011/1749.html
Cite as: [2011] ECHR 1749

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SECOND SECTION

DECISION

Application no. 34144/08
by Ercan SAN and Rıdvan KURA
against Turkey

The European Court of Human Rights (Second Section), sitting on 27 September 2011 as a Committee composed of:

David Thór Björgvinsson, President,
Giorgio Malinverni,
Guido Raimondi, judges,
and Françoise Elens-Passos, Deputy Section Registrar,

Having regard to the above application lodged on 7 July 2008,

Having regard to the declaration submitted by the respondent Government on 28 January 2011 requesting the Court to strike the application out of the list of cases,

Having deliberated, decides as follows:

THE FACTS

The applicants, Mr Ercan San and Mr Rıdvan Kura, are Turkish nationals who were born in 1972 and 1969 respectively and live in Istanbul. They were represented before the Court by Mr M. Filorinali and Ms Y. Başara, lawyers practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent.

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

On 19 April 1994 the applicants were arrested on suspicion of membership of an illegal organisation. On 3 May 1994 they were placed in detention on remand.

Subsequently, on 11 July 1994 the public prosecutor at the Istanbul State Security Court filed an indictment with that court, accusing the applicants of membership of an illegal organisation and attempting to undermine the order provided for by the Constitution.

In 2004, following a constitutional amendment, State Security Courts were abolished and the applicants’ case was transferred to the Istanbul Assize Court.

On 27 April 2007 the Istanbul Assize Court discontinued the proceedings as the statutory time-limit concerning the charges against the applicants had expired.

COMPLAINTS

The applicants complained under Article 6 § 1 of the Convention about the length of the criminal proceedings against them.

The applicants further argued under Article 6 § 1 of the Convention that the State Security Court, which evaluated the case until it was transferred to the Istanbul Assize Court, lacked impartiality.

Relying upon Article 6 § 3 (c) of the Convention, the applicants maintained that they were denied legal assistance during their time in police custody.

THE LAW

1. As to the complaint about the length of proceedings

The applicants complained about the length of the criminal proceedings instigated against them. They relied on Article 6 § 1 of the Convention which, in so far as relevant, provides as follows:

“In the determination ... of any criminal charge against him, everyone is entitled to a... hearing within a reasonable time by [a] ... tribunal...”

By letter dated 28 January 2011 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:

“Je déclare que le Gouvernement de la République de Turquie offre de verser au requérants, M. Ercan San et M. Rıdvan Kula, conjointement, la somme de 9 500 (neuf mille cinq cents) euros, couvrant tout préjudice matériel et moral ainsi que 500 (cinq cents) euros, couvrant l’ensemble des frais et dépens, plus tout montant pouvant être dû à titre d’impôt par le requérant, sommes qu’il considère comme appropriées à la lumière de la jurisprudence de la Cour.

Cette somme sera convertie en livres turques au taux applicable à la date du paiement, et exemptes 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. A 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 considère que la procédure interne engagée par les requérants a connu une durée excessive au sens de la jurisprudence bien établie de la Cour (Daneshpayeh c. Turquie, n^o21086/04, 16 juillet 2009). Il invite respectueusement la Cour à dire qu’il ne se justifie plus de poursuivre l’examen de la requête et à la rayer du rôle conformément à l’article 37 de la Convention ”

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

The Court recalls 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”.

It also recalls 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.

To this end, the Court will examine carefully the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar v. Turkey judgment (Tahsin Acar v. Turkey [GC], no. 26307/95, §§ 75-77, ECHR 2003 VI; also WAZA Spółka z o.o. v. Poland (dec.), no. 11602/02, 26 June 2007; Sulwińska v. Poland (dec.), no. 28953/03; Stark and Others v. Finland (striking out), no. 39559/02, § 23, 9 October 2007; Silva Marrafa v. Portugal (dec.), no. 56936/08, 25 May 2010; Karal v. Turkey (dec.), no. 44655/09, 29 March 2011; and Barış İnan v. Turkey (dec.), no. 20315/10, 24 May 2011).

The Court has established in a number of cases, including those brought against Turkey, its practice concerning complaints about the violation of one’s right to a hearing within a reasonable time (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; Wende and Kukówka v. Poland, no. 56026/00, 10 May 2007; and Daneshpayeh v. Turkey, no. 21086/04, §§ 28-29, 16 July 2009).

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)).

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).

In view of the above, it is appropriate to strike this part of the case out of the list.

2. As to the complaints concerning the impartiality of the State Security Courts and the alleged lack of legal assistance during the applicants’ time at police custody

The applicants complained under Article 6 § 1 of the Convention that the State Security Court, which evaluated the case against them for approximately ten years until it was transferred to the Assize Court, lacked impartiality because of its composition. They further maintained that they were denied legal assistance during their time at police custody.

The Court notes that the Istanbul Assize Court discontinued the case as the statutory time-limit regarding the charges against the applicants had expired. Accordingly, it finds that this part of the application is inadmissible as the applicants cannot claim to be victims of a violation within the meaning of Article 34 of the Convention.

For these reasons, the Court unanimously

Takes note of the terms of the respondent Government’s declaration under Article 6 § 1 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, in so far as it concerns the complaint about the length of proceedings;

Declares the remainder of the application inadmissible.

Françoise Elens-Passos David Thór Björgvinsson
Deputy Registrar President