GULBAHAR OZER AND OTHERS v. TURKEY - 44125/06 - Chamber Judgment [2014] ECHR 589 (10 June 2014)

In the case of Gülbahar Özer and Others v. Turkey (request for revision of the judgment of 2 July 2013),

The European Court of Human Rights (Second Section), sitting as a Chamber composed of:

          Guido Raimondi, President,
          Işıl Karakaş,
          Dragoljub Popović,
          András Sajó,
          Nebojša Vučinić,
          Paulo Pinto de Albuquerque,
          Helen Keller, judges,
and Stanley Naismith, Section Registrar,

Having deliberated in private on 20 May 2014,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 44125/06) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by five Turkish nationals, Ms Gülbahar Özer, Mr Yusuf Özer, Mr Halil Esen, Mr Hüseyin Esen and Mr Abdurrahman Çınar (“the applicants”), on 19 October 2006.

2. In a judgment delivered on 2 July 2013, the Court held that there had been a violation of Article 2 of the Convention in both its substantive and procedural aspects on account of the killing of the applicants’ five children by soldiers of the respondent State and the failure of the national authorities to carry out an effective investigation into the killings. The Court decided to award each of the five applicants 65,000 euros (EUR) for non-pecuniary damage. It also awarded the applicants, jointly, EUR 5,930 for costs and expenses, and dismissed the remainder of the claims for just satisfaction. The judgment became final on 2 October 2013.

3. On 5 December 2013 the applicants’ legal representatives informed the Court that they had learned that one of the five applicants, Mr Halil Esen, had died on 22 April 2011 and that his wife Mrs Fatma Esen wished to pursue the application. They informed the Court that Mrs Esen requested revision of the judgment within the meaning of Rule 80 of the Rules of Court, and requested that the judgment be rectified so that she could receive the compensation awarded to her husband in respect of the killing of their daughter Zerga Esen.

4. The Court considered the request for revision and decided to invite the Government and the applicants to submit any observations. Those observations were received on 10 January 2014 and 11 March 2014 respectively.

THE LAW

THE REQUEST FOR REVISION

5. The deceased applicant Mr Halil Esen’s wife, Mrs Fatma Esen, requested revision of the judgment of 2 July 2013, which she had been unable to have executed because her husband Mr Halil Esen had died before the judgment had been adopted.

6. The Government stated that the applicant Mr Halil Esen had died over two years before the judgment was adopted by the Court, but that neither his heirs nor his legal representatives had informed the Court about his demise. They referred to the parties’ duty to cooperate fully with the Court in the conduct of the proceedings (see Rule 44A of the Rules of Court), and asked the Court to draw “the necessary conclusions” within the meaning of Rule 44C of the Rules of Court.

7. The applicants’ legal representatives responded by submitting that Mr Halil Esen’s family had not informed them of his demise in a timely manner because the family had assumed that, according to the provisions of the national law pertaining to the issue of inheritance, they were his heirs and would inherit his estate. The legal representatives also submitted that the date of their final correspondence with the Court had been 23 May 2011, which was only one month after Mr Esen’s death. As there had not been any developments in the case between that date and the adoption of the judgment, the legal representatives had not been in contact with the applicants.

8. The Court observes that Mrs Fatma Esen was the mother of Ms Zerga Esen who was killed by the soldiers in breach of Article 2 of the Convention (see paragraph 2 above), and she is the heir of the deceased applicant Mr Halil Esen. It thus considers that she has standing to pursue the application in her deceased husband’s stead (see, mutatis mutandis, Dyller v. Poland (revision), no. 39842/05, § 8, 15 February 2011). It observes that she has expressed her intention to do so and requested that the judgment be revised (see Volkan Özdemir v. Turkey (revision), no. 29105/03, § 5, 20 July 2010; Wypukoł-Piętka v. Poland (revision), no. 3441/02, § 7, 8 June 2010; see also, a contrario, Eremiášová and Pechová v. the Czech Republic (revision), no. 23944/04, § 8, 20 June 2013; Gabay v. Turkey (revision), no. 70829/01, § 8, 27 June 2006).

9. As for the Government’s reference to Rule 44A and C of the Rules of Court, the Court observes that the purpose of those provisions is to ensure “the proper administration of justice” (see Rule 44A of the Rules of Court) and to facilitate the Court’s examination of a case within the meaning of Article 38 of the Convention. The above-mentioned Rules have been relied on by the Court, for example, in cases in which its establishment of the facts was hampered due to a party’s failure to cooperate with it by refusing to hand over crucial documents (see Pekaslan and Others v. Turkey, nos. 4572/06 and 5684/06, § 46, 20 March 2012) and in accordance with those rules it drew inferences from such failures as to the well-foundedness of the allegations (see Benzer and Others v. Turkey, no. 23502/06, §§ 161 and 179, 12 November 2013). The Court observes that the applicants’ failure to inform it of the demise of Mr Halil Esen did not have any such effects on its examination of the case. It thus deems it unnecessary to draw any inferences from that failure.

10. Having regard to the conclusions reached in the comparable cases referred to above, the Court considers that the judgment of 2 July 2013 should be revised pursuant to Rule 80 of the Rules of Court, the relevant parts of which provide:

“A party may, in the event of the discovery of a fact which might by its nature have a decisive influence and which, when a judgment was delivered, was unknown to the Court and could not reasonably have been known to that party, request the Court ... to revise that judgment.

...”

11. It accordingly decides to award Mrs Fatma Esen the amount it previously awarded to her deceased husband Mr Halil Esen, namely EUR 65,000 for non-pecuniary damage.

12. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Decides to revise its judgment of 2 July 2013 in so far as it concerns the claim made by the deceased applicant Mr Halil Esen under Article 41 of the Convention,

and accordingly,

2. Holds

(a) that the respondent State is to pay Mrs Fatma Esen, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 65,000 (sixty-five thousand euros) in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

Done in English, and notified in writing on 10 June 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stanley Naismith Guido Raimondi
Registrar President

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