CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 16 mai 2017

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s83BE5C30 { font-family:Arial; font-size:8pt; vertical-align:super } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .s4B243ECC { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .s5F897A7E { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt } .s7E985A65 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; font-size:1pt } .sF7A4323 { margin-top:36pt; margin-bottom:0pt; text-align:left } .s5362FFEB { width:4.87pt; display:inline-block } .s6D6DF111 { width:197.42pt; display:inline-block } .sA2E62387 { width:204.97pt; display:inline-block } .s76CF415B { page-break-before:always; clear:both } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s469DC3BE { width:73.88%; border-collapse:collapse } .s407FDF4B { width:14.6%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top; background-color:#dfdfdf } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .sEECE831 { font-family:Arial; font-weight:bold; color:#474747 } .sA7FAE18A { width:40.28%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top; background-color:#dfdfdf } .s39D7A642 { width:45.12%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top; background-color:#dfdfdf } .sA32E384D { width:14.6%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top } .s6B505E72 { margin:0pt; padding-left:0pt } .s74DC3D21 { margin-left:33.01pt; padding-left:2.99pt; font-family:Arial; font-size:12pt; font-weight:bold } .sC5D42F36 { width:40.28%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top } .s9BD00D0D { width:45.12%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top }     SECOND SECTION DECISION Application no. 75051/12 Derya ARSLAN and others against Turkey The European Court of Human Rights (Second Section), sitting on 16   May 2017 as a Committee composed of:   Julia Laffranque, President,   Paul Lemmens,   Valeriu Griţco, judges, and Hasan Bakırcı, Deputy Section Registrar, Having regard to the above application lodged on 18 September 2012, Having regard to the declaration submitted by the respondent Government on 20 January 2017 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, all of whom are Turkish nationals, is set out in the appendix. They were all represented by Ms F. Daniş a lawyer practising in Diyarbakır. 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 27 August 2011 the applicants were placed in detention on suspicion of membership of a terrorist organisation. 5.     Subsequently, criminal proceedings were initiated against the applicants before the Diyarbakır Assize Court. 6.     During the hearings held on 13 April 2012 and 4 June 2012 the applicants’ requests for release pending trial were rejected. 7.     The applicants filed objections against these decisions. On 21 May 2012 and 14 June 2012, respectively, the 4 th Chamber of the Diyarbakır Assize Court dismissed these objections relying mainly on the public prosecutor’s written opinions, which were not communicated to them or to their representatives. COMPLAINT 8.     The applicants complained under Article 5 § 4 of the Convention that they did not have an effective remedy to challenge the lawfulness of their detentions on account of the non-communication of the prosecutor’s written opinions. THE LAW 9.     The applicants complained about the non-communication of the public prosecutor’s opinions during the proceedings to challenge the lawfulness of their detention. They relied on Article 5 § 4 of the Convention. 10.     After the failure of attempts to reach a friendly settlement, by a letter of 20 January 2017, 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 the Republic of Turkey hereby wishes to express by way of unilateral declaration its acknowledgement that the applicants’ rights to liberty and security did not meet the standards enshrined in Article 5 of the Convention. I declare that the Government accordingly offer to pay to each of the applicants 150   (one hundred fifty) euros (EUR) to cover any and all pecuniary and non ‑ pecuniary damages and EUR 150 (one hundred fifty) to cover any and all cost and expenses, plus any tax that may be chargeable to the applicants. The Government therefore invites the court to strike the present case out of the list of cases. It states suggests that the present declaration might be accepted by the Court as “any other reason” to justify the striking out of the case of the Court’s list of cases, as referred in Article 37§1 (c) of the Convention. The above-mentioned sum will be converted into Turkish Liras at the rate applicable on the date of payment, and will be payable within three months from the date of notification of the decision taken by the Court to strike the case out of its list of cases. 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.” 11.     By a letter of 23 February 2017, the applicants indicated that they were not satisfied with the terms of the unilateral declaration. 12.     The Court reiterates 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 applicant wishes 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 (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 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 pursuant to Article   39 of the Convention in accordance with Article 37 § 1 (c) of the Convention.   Done in English and notified in writing on 15 June 2017.   Hasan Bakırcı   Julia Laffranque Deputy Registrar   President Appendix   No. First Name Last Name Birth year   Derya ARSLAN 1980   Berivan ELTER 1990   Songül ENÜŞTEKİN 1990   Nevin GÜKÇE 1977