CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 11 juin 2019

.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 } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s3B53EBCC { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; font-size:1pt } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s83BE5C30 { font-family:Arial; font-size:8pt; vertical-align:super } .s6B505E72 { margin:0pt; padding-left:0pt } .sD8BF637E { margin-left:28.6pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:0.6pt; font-family:Arial; font-weight:bold } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sE485344B { margin-top:14pt; margin-left:28.6pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:0.6pt; font-family:Arial; font-weight:bold } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sE330DFD7 { margin-top:14pt; margin-left:17pt; margin-bottom:3pt } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .s5C2FD240 { width:44.79pt; display:inline-block } .sE07E54C1 { width:134.1pt; display:inline-block } .sAFF36EC2 { width:18.78pt; display:inline-block } .s1B61D60 { width:156.43pt; display:inline-block }     SECOND SECTION DECISION Application no. 17633/08 Hediye AKSOY against Turkey   The European Court of Human Rights (Second Section), sitting on 11   June 2019 as a Committee composed of:   Valeriu Griţco, President,   Egidijus Kūris,   Darian Pavli, judges, and Hasan Bakırcı, Deputy Section Registrar, Having regard to the above application lodged on 18 March 2008, Having regard to the declaration submitted by the respondent Government on 21 December 2018 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, Ms Hediye Aksoy, is a Turkish national, who was born in 1975 and lives in Bakırköy. She was represented before the Court by Mr   M. Filorinalı and Ms Y. Filorinalı, lawyers practising in Istanbul. 2.     The Turkish Government (“the Government”) were represented by their Agent. 3.     On 24 April 2007 the applicant was taken into police custody on suspicion of being a member of a terrorist organisation. On 28 April 2007 she was placed in detention on remand. On 10 May 2007 the Istanbul Public Prosecutor filed an indictment with the Istanbul Assize Court. 4.     On 28 September 2007 the 11 th Chamber of the Istanbul Assize Court held its first hearing in which the applicant was present. At the end of the hearing, the Court decided to continue the applicant’s detention on remand. 5.     On 6 February 2008 the 11 th Chamber of the Istanbul Assize Court held a second hearing and the applicant was present in this hearing. The Court decided the continuation of the applicant’s detention. The applicant filed an objection against this decision. On 20 February 2008, the 12 th Chamber of the Istanbul Assize Court, after obtaining the public prosecutor’s written opinion on the issue, dismissed the objection on the basis of the case file, without holding a hearing. 6.     The application had been communicated to the Government. THE LAW As to non-communication of the public prosecutor’s opinion and the lack of an effective remedy to challenge the lawfulness of her detention 7.     The applicant complained under Article 5 § 4 the Convention about her right to have an effective remedy to challenge the lawfulness of her detention had been breached since her objection had been dismissed by the appeal court on the basis of the public prosecutor’s written opinion, which had not been communicated to her or to her representative. She further alleged under Article 5 § 5 of the Convention that she had been denied the right to compensation for a breach of her rights under Article 5 § 4 of the Convention. 8.     After the failure of attempts to reach a friendly settlement, by a letter of 28 December 2018 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 this part of the application in accordance with Article   37 of the Convention. 9.     The declaration provided as follows: “I declare that the Government of the Republic of Turkey offer to pay to the applicant, Ms Hediye Aksoy, the amount of 340 (three hundred and forty) euros in respect of the application registered under no. 17633/08. This sum, which is considered to be appropriate in the light of the jurisprudence of the Court, covers any pecuniary and non-pecuniary damage as well as costs and shall be paid in Turkish liras, free of any tax that may be applicable. The sum shall be payable within three months from the date of delivery of decision by the Court pursuant to Article 37 § 1 of the Convention. This payment will constitute the final resolution of the case. The Government consider that in the present case, the remedy available to the applicant’s detention on remand was not in accordance with the requirements established by the case-law of the Court, failed to meet the standards enshrined in Article 5 § 4 of the Convention ( Cahit Demirel v. Turkey , no. 18623/03, 7 July 2009). The Government respectfully invite the Court to declare that it is not justified anymore to continue the examination of the application and to strike the case out of its lists in accordance with Article 37 of the Convention.” 10.     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”. 11.     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. 12.     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). 13.     The Court has established in a number of cases, including those brought against Turkey, its practice concerning complaints about the non-communication of the public prosecutor’s opinion during proceedings to challenge the lawfulness of detention (see, for example, Altınok v.   Turkey , no.   31610/08, §§ 57-61, 29 November 2011). 14.     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)). 15.     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 ). 16.     The Court considers that this amount should be converted into Turkish liras 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. 17.     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). 18.     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. The applicant’s inability to be present before the appeal court examining the objections to her detention 19.     Relying on Articles 5 § 4 and 6 of the Convention, the applicant complained about not being able to appear before the court when her pre ‑ trial detention was reviewed. 20.     The Court considers that in the circumstances of the present application it is more appropriate to deal with the applicant’s complaint only under Article 5 § 4 of the Convention. 21.     The Government contested that argument. 22.     In the present case, the applicant was placed in detention on remand on 24 April 2007. At the end of the hearing held on 6 February 2008, the trial court decided the continuation of the applicant’s detention. The applicant was present in this hearing. Subsequently, she filed an objection against this decision. 23.     The Court observes that this objection was dismissed on 20 February 2007 by the 12 th Chamber of İstanbul Assize Court, without holding an oral hearing. Nevertheless, the applicant had appeared before the trial court fourteen days before her objection was examined by the appeal court. In these circumstances, the Court does not consider that a further oral hearing before the appeal court was required for the purposes of Article 5 § 4. 24.     The Court thus concludes that the lack of an oral hearing during the proceedings did not jeopardise the principle of equality of arms (see Altınok, cited above, §§ 54-55, 29 November 2011). 25.     It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. Independence and impartiality of the assize courts 26.     The applicant alleged under Article 6 of the Convention that the judges sitting in the assize courts were not independent and impartial. 27.     The Court notes that this allegation is submitted in a very brief and general manner. It finds that there is no indication which might suggest that the judges of the assize court lacked independence and impartiality. 28.     Having regard to all the evidence in its possession, and in so far as it has jurisdiction to examine the allegations, the Court has not found any appearance of a breach of the rights and freedoms guaranteed by the Convention or its Protocols. 29.     It follows that this part of the application is manifestly ill ‑ founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. 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 that 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 4 July 2019.   Hasan Bakırcı   Valeriu Griţco   Deputy Registrar   President