ÇİÇEN v. TURKEY

 
 
 
 
SECOND SECTION
DECISION
Application no. 25022/09
Ahmet ÇİÇEN
against Turkey
 
The European Court of Human Rights (Second Section), sitting on 30 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 29 April 2009,
Having regard to the declaration submitted by the respondent Government on 6 September 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, Mr Ahmet Çiçen, is a Turkish national, who was born in 1962 and lives in İstanbul. He was represented before the Court by Ms Y. Kavak Kılınç, a lawyer practising in Strasbourg.
2.  The Turkish Government (“the Government”) were represented by their Agent.
3.  The applicant complained under Article 6 §§ 1 and 3 (c) of the Convention about the absence of a lawyer when giving statements to the police and the allegedly unreasonable length of the criminal proceedings against him. In the same vein, the applicant further alleged that his police statements had been retracted from him as a result of pressure. Lastly, he alleged a breach of Article 1 of Protocol No.1 to the Convention as a result of his dismissal from the public service, stemming from his allegedly unfair conviction, and the consequent forfeiture of his retirement benefits.
4.  The part of the application concerning the alleged denial of access to a lawyer and the length of the criminal proceedings against him had been communicated to the Government.
THE LAW
A.  The validity of the applicant’s waiver of his right to a lawyer during police custody
5.  After the failure of attempts to reach a friendly settlement, by a letter of 6 September 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 the application in accordance with Article 37 of the Convention.
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 applicant’s complaints under Article 6 of the Convention.
The Government thus offer to pay the applicant, Ahmet Çiçen, 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.”
6.  By a letter of 12 November 2018, the applicant indicated that he was not satisfied with the terms of the unilateral declaration finding the amount offered by the Government too low. The applicant requested the total amount of EUR 10,000 covering pecuniary and non-pecuniary damage as well as costs and expenses.
7.  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”.
8.  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.
9.  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).
10.  The Court has established in a number of cases, including those brought against Turkey, its practice concerning complaints about the validity of the waiver of the right to a lawyer during police custody and the use of evidence obtained in the absence of a lawyer to convict the applicants (see, among others, Simeonovi v. Bulgaria [GC], no. 21980/04, 12 May 2017; Bozkaya v. Turkey, no. 46661/09, 5 September 2017; Türk v. Turkey, no. 22744/07, 5 September 2017; Hakan Duman v. Turkey, no. 28439/03, 23 March 2010; Savaş v. Turkey, no. 9762/03, 8 December 2009; and Yunus Aktaş and Others v. Turkey, no. 24744/03, 20 October 2009).
11.  The Court further observes that the Government have explicitly acknowledged in their unilateral declaration a violation of Article 6 §§ 1 and 3 of the Convention.
12.  The Court further notes that up until 31 July 2018, sub paragraph (f) of Article 311 § 1 of Code of Criminal Procedure provided the applicants with a remedy entailing the possibility of the reopening of the criminal proceedings only on the basis of a judgment of the Court finding a violation of the Convention or Protocols thereto. However, following the entry into force of Law no.7145 on 31 July 2018, applicants are now entitled to lodge an application for the reopening of criminal proceedings following the Court’s decision to strike their case out of its list of cases on the basis of a friendly settlement or a unilateral declaration as these two situations are now exhaustively listed in Article 311 § 1 (f) of the Code of Criminal Procedure as grounds for the reopening of criminal proceedings. Thus, the Court is satisfied that the domestic law provides for a remedy whereby the applicants are able to request the reopening of proceedings following a decision or judgment striking out an application on the basis of a friendly settlement or a unilateral declaration (see, by contrast, Igranov and Others v. Russia, nos. 42399/13 and 8 others, § 26, 20 March 2018, with further references therein, and compare Sroka v. Poland (dec.), no. 42801/07, 6 March 2012).
13.  In that connection, it further points out that 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, should the applicant so request. 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.
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 commensurate 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)). That decision is without prejudice to the possibility for the applicant to exercise any other available remedies in order to obtain redress (see Jeronovičs v. Latvia [GC], no. 44898/10, §§ 116‑118, 5 July 2016).
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.  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).
17.  In view of the above, it is appropriate to strike the case out of the list.
B.  Length of the proceedings
18.  Relying on Article 6 § 1 of the Convention, the applicant also complained about the allegedly excessive duration of the proceedings against him.
19.  The Government noted that pursuant to Law no. 6384 a new Compensation Commission had been established to deal with applications concerning the length of proceedings and the non-execution of judgments. They maintained that the applicant had not exhausted domestic remedies, as she had not made any application to the Compensation Commission: this ground had also been recognised by the Court in its decision in the case of Turgut and Others v. Turkey ((dec.), no. 4860/09, 26 March 2013).
20.  The Court observes that, as pointed out by the Government, a new domestic remedy has been established in Turkey following the application of the pilot judgment procedure in the case of Ümmühan Kaplan v. Turkey (no. 24240/07, 20 March 2012). Subsequently, in its decision in the case of Turgut and Others, cited above, the Court declared a new application inadmissible on the ground that the applicants had failed to exhaust domestic remedies, that is to say the new remedy. In so doing, the Court considered in particular that this new remedy was a priori accessible and capable of offering a reasonable prospect of redress for complaints concerning the length of proceedings.
21.  The Court notes that in its judgment in the case of Ümmühan Kaplan (cited above, § 77) it stressed that it could nevertheless examine, under its normal procedure, applications of this type which had already been communicated to the Government.
22.  However, taking account of the Government’s preliminary objection with regard to the obligation of the applicant to make use of the new domestic remedy established by Law no.6384, the Court reiterates its conclusion in the case of Turgut and Others (cited above). It therefore concludes that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
C.  Remaining complaints
23.  The applicant further alleged under Article 6 §§ 1 and 3 (c) of the Convention that his police statements had been taken under duress. Finally, the applicant complained under Article 1 of Protocol No. 1 to the Convention that he had been banned from working in the civil service as a result of his conviction, by virtue of section 48 of the Law on Civil Servants (Law no. 657). In that connection, the applicant argued that he would not be reimbursed the pension contributions deducted from his salary during his twenty-two years of service.
24.  The Court has examined these complaints and considers that, in the light of all the material in its possession and in so far as the matter complained of is within its competence, these complaints do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto.
For these reasons, the Court, unanimously,
Takes note of the terms of the respondent Government’s declaration under Article 6 §§ 1 and 3 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 23 May 2019.
Hasan BakırcıJulia Laffranque
Deputy RegistrarPresident

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