29114/09, KILAVUZ v. TURCJA - Decyzja Europejskiego Trybunału Praw Człowieka

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Decyzja Europejskiego Trybunału Praw Człowieka z dnia 2 kwietnia 2019 r. 29114/09

UZASADNIENIE

Wstęp

ECLI:CE:ECHR:2019:0402DEC002911409

SECOND SECTION

DECISION

Application no. 29114/09

Ekrem KILAVUZ

against Turkey

The European Court of Human Rights (Second Section), sitting on 2 April 2019 as a Committee composed of:

Julia Laffranque, President,

Stéphanie Mourou-Vikström,

Arnfinn Bårdsen, judges,

and Hasan Bakırcı, Deputy Section Registrar,

Having regard to the above application lodged on 7 May 2009,

Having regard to the declaration submitted by the respondent Government on 15 November 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:

Uzasadnienie faktyczne

FACTS AND PROCEDURE

1. The applicant, Mr Ekrem Kılavuz, is a Turkish national, who was born in 1976 and is detained in Şanlıurfa.

2. The Turkish Government ("the Government") were represented by their Agent.

3. The applicant complained under Article 6 of the Convention that he had been denied the assistance of a lawyer during the initial stages of the criminal proceedings, and that his conviction was based on the statements he had made to the police in the absence of a lawyer and under alleged duress. The applicant further maintained under the same Article that he had been unable to examine or have examined the witnesses during the criminal proceedings.

4. The application was communicated to the Government under Article 6 §§ 1 and 3 of the Convention.

5. After unsuccessful friendly-settlement negotiations, by letter dated 15 November 2018 the Government informed the Court that they proposed to make a declaration with a view to resolving the issues raised by the application.

6. The declaration provided as follows:

"The Government of Turkey acknowledge that in the present case there has been a violation of the applicant's rights under Articles 6 §§ 1 and 3 of the Convention in the light of the well-established case-law of the Court.

The Government also recalls that Law no. 4928 on 15 July 2003 repealed the provision concerning the systemic restriction on the right of access to a lawyer.

The Government further emphasises that Article 311 § 1 (f) of the Code on Criminal Procedure, as amended by Law no.7145 of 31 July 2018, now requires reopening of criminal proceedings in cases where the European Court of Human Rights decides to strike an application out of its list of cases following a friendly settlement or a unilateral declaration. The Government considers that the aforementioned remedy is capable of providing redress in respect of the applicants' complaints under Article 6 of the Convention.

The Government thus offer to pay the applicant, Ekrem KILAVUZ, EUR 500 (five hundred euros) to cover any pecuniary and non-pecuniary damage as well as costs and expenses, plus any tax that may be chargeable to the applicant with a view to resolving the above-mentioned case pending before the European Court of Human Rights.

This 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 by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay this sum within the said three-month period, the Government undertake 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."

7. On 7 January 2019, the Court received a letter from the applicant informing the Court that he had agreed to the terms of the Government's declaration.

Uzasadnienie prawne

THE LAW

8. The Court finds that following the applicant's express agreement to the terms of the declaration made by the Government the case should be treated as a friendly settlement between the parties.

9. It therefore takes note of the friendly settlement reached between the parties. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no reasons to justify a continued examination of the application.

10. The Court would like to draw attention to the fact that on 25 July 2018 the Turkish Parliament has adopted Law no.7145. Articles 4, 17, 18 and 19 of this new law provide for a right to request the re-opening of domestic court proceedings following the Court's decision to strike out a case on the basis of a friendly settlement or unilateral declaration. In particular, according to the Court's case-law and practice, the re-opening of the domestic proceedings is the most appropriate way to provide an effective solution to an alleged breach of Article 6 of the Convention. Thus, it is considered that the aforementioned remedy is capable of providing redress in respect of the applicant's complaints under Article 6 of the Convention. Bearing in mind the Court's subsidiary role in protecting the rights and freedoms guaranteed by the Convention and its protocols, it is recalled that it falls in the first place to the national authorities to redress any violation of the Convention.

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

Sentencja

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

Decides to strike the application out of its list of cases pursuant to Article 39 of the Convention.

Done in English and notified in writing on 9 May 2019.

Hasan Bakırcı

Julia Laffranque

Deputy Registrar

President