DİNÇ v. TURKEY

 
 
SECOND SECTION
DECISION
Application no. 73741/11
Sami DİNÇ
against Turkey
 
The European Court of Human Rights (Second Section), sitting on 28 May 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 20 September 2011,
Having regard to the declaration submitted by the respondent Government on 9 January 2019 requesting the Court to strike the application out of the list of cases,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
1.  The applicant, Mr Sami Dinç, is a Turkish national, who was born in 1980 and is detained in Metris. He was represented before the Court by Mr E. Nuhoğlu, a lawyer practising in Istanbul.
2.  The Turkish Government (“the Government”) were represented by their Agent.
3.  On 3 July 2011 the applicant was taken into police custody within the context of an investigation concerning match-fixing and forming a criminal organisation. Subsequently, on 6 July 2011 he was placed in detention on remand. The applicant’s objections filed against his detention were rejected by the domestic courts on the basis of the case file, and he was thus not able to appear before the courts. On 1 June 2012 the applicant was released pending trial and in 2015 he was acquitted of all the charges brought against him.
4.  The application had been communicated to the Government.
THE LAW
5.  The applicant complained under Article 5 § 4 of the Convention that he did not have an effective remedy to challenge the lawfulness of his detention. In this connection, he alleged that he had been denied appearance before a court for length periods, in breach of Article 5 § 4 of the Convention.
6.  After the failure of attempts to reach a friendly settlement, by a letter of 9 January 2019 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.
7.  The declaration provided as follows:
“The Government of Turkey hereby wish to express by way of unilateral declaration their acknowledgement that the applicant’s release requests were not examined in accordance with the standards enshrined in Article 5 § 4 of the Convention.
I declare that the Government of Turkey offer to pay the applicant, Sami Dinç, with a view to resolving the above-mentioned case pending before the European Court of Human Rights, EUR 650 (six hundred and fifty euros) to cover any non-pecuniary damage and EUR 450 (four hundred and fifty euros) to cover any and all costs and expenses, plus any tax that may be chargeable to the applicant. 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 expenses, 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 European Convention on Human Rights. This payment will constitute the final resolution of the case.
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.”
8.  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”.
9.  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.
10.  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).
11.  The Court has established in a number of cases, including those brought against Turkey, its practice concerning complaints about the lack of an oral hearing in the proceedings to challenge the lawfulness of a detention (see, for example, Karaosmanoğlu and Özden v. Turkey, no. 4807/08, §§ 63-65, 17 June 2014).
12.  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)).
13.  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).
14.  The Court considers that these amounts should be converted into 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.
15.  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).
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 in accordance with Article 37 § 1 (c) of the Convention.
Done in English and notified in writing on 20 June 2019.
Hasan BakırcıValeriu Griţco
Deputy RegistrarPresident

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