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FOURTH
SECTION
CASE OF RESUL SADAK AND OTHERS v. TURKEY
(Application
no. 74318/01)
JUDGMENT
(Revision)
STRASBOURG
8
January 2008
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Resul Sadak and Others v. Turkey (request for
revision of the judgment of 5 December 2006),
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Josep
Casadevall,
Giovanni Bonello,
Riza
Türmen,
Kristaq Traja,
Stanislav
Pavlovschi,
Ján Šikuta, judges,
and
Fatoş Aracı, Deputy Section Registrar,
Having
deliberated in private on 4 December 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The case originated in an application (no. 74318/01)
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 twelve Turkish nationals,
Mr Resul Sadak, Mr Nihat Osal, Mr Mehmet Çakar, Mr
Rustem Bayar, Mr Tahir Kutlu, Mr Cengiz Balık, Mr İzzet
Belge, Mr Abdurrazak İnan, Mr Mehmet Temelkuran, Mr
Mehmet Nezir Ayan, Mr Yakup Uyar and Mr Erdal Güler (“the
applicants”), on 1 April 2001.
- In
a judgment delivered on 5 December 2006, the Court declared the part
of the application concerning Erdal Güler inadmissible and held
that there had been a violation of Article 5 § 3 of the
Convention in respect of the remainder of the applicants. The Court
also decided to award Mr Resul Sadak, Mr Nihat Osal,
Mr Mehmet Çakar, Mr Rustem Bayar, Mr Tahir Kutlu,
Mr Cengiz Balık, Mr İzzet Belge, Mr Abdurrazak İnan,
Mr Mehmet Temelkuran, Mr Mehmet Nezir Ayan, Mr Yakup Uyar
1 800 Euros (EUR) each in respect of non-pecuniary damage
and EUR 1 000 jointly in respect of costs and expenses and
dismissed the remainder of the claims for just satisfaction.
- On
18 April and 24 April 2007 the Government and the applicants'
representative requested revision of the judgment within the meaning
of Rule 80 of the Rules of Court, submitting that Mehmet Temelkuran
had passed away on 26 May 2005.
- On
3 July 2007 the Court considered the requests for revision. It
decided to refuse the Government's request for revision of the
judgment and striking out of the Court's list of cases the
application brought by Mehmet Temelkuran. The Court decided to
give the Government three weeks in which to submit any observations
on the applicants' representative's request. Those observations were
received on 19 July 2007.
THE LAW
THE REQUEST FOR REVISION
- The
applicants' representative requested revision of the judgment of
5 December 2006, which he had been unable to have executed
because Mr Mehmet Temelkuran had died before the judgment had
been adopted. Mrs Behiye Temelkuran, Mr Mahmut Temelkuran, Mrs
Mevlude Gerez (Temelkuran), Mr Abdurrahman Temelkuran, Mrs Emine
Temelkuran, Mrs Mucibet Yurtseven (Temelkuran), Mrs Nezahat
Temelkuran, Mr Selim Temelkuran, Mrs Güllü Fidan
(Temelkuran), Mrs Nuriye Akay (Temelkuran), Mrs Atike Temelkuran, Mrs
Nesibe Temelkuran, Mrs Nimet Temelkuran and Mr Reşit
Temelkuran were the heirs and should therefore receive the sums
awarded to the deceased.
- The
Government requested the Court to strike the
application brought by Mr Mehmet Temelkuran out of its list of
cases since his heirs had not expressed their wish to pursue the
application while it had been pending before the Court.
- The
Court considers that the judgment of 5 December 2006 should be
revised under 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.
...”
- It
accordingly decides to award the heirs jointly the amounts it had
previously awarded to Mr Mehmet Temelkuran, namely EUR 1 800 for
non-pecuniary damage and Mr Mehmet Temelkuran's share on EUR 1 000,
the amount awarded jointly to the applicants for costs and expenses
in the judgment of 5 December 2006.
- The
Court considers it appropriate that the default interest 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
- Declares the applicants' representative's
request for revision of the judgment of 5 December 2006 admissible;
Consequently,
- Declares the part of the application concerning
Erdal Güler inadmissible;
- Declares the remainder of the application
admissible in respect of the applicants Resul Sadak, Nihat Osal,
Mehmet Çakar, Rüstem Bayar, Tahir Kutlu, Cengiz Balık,
İzzet Belge, Abdurrezak İnan, Mehmet Temelkuran,
Mehmet Nezir Ayan and Yakup Uyar;
- Holds that there has been a violation of Article
5 § 3 of the Convention;
- Holds
(a)
that the respondent State is to pay within three months from the date
on which the judgment becomes final in accordance with Article 44 § 2
of the Convention, the following amounts, to be converted into new
Turkish liras at the rate applicable at the date of settlement:
(i) EUR
1 800 (one thousand eight hundred Euros) to Resul Sadak, Nihat
Osal, Mehmet Çakar, Rüstem Bayar, Tahir Kutlu,
Cengiz Balık, İzzet Belge, Abdurrezak İnan,
Mehmet Nezir Ayan and Yakup Uyar each in respect of
non pecuniary damage;
(ii) EUR 1 800 (one
thousand eight hundred Euros) to Mehmet Temelkuran's heirs, Behiye
Temelkuran, Mahmut Temelkuran, Mrs Mevlude Gerez (Temelkuran),
Abdurrahman Temelkuran, Emine Temelkuran, Mucibet Yurtseven
(Temelkuran), Nezahat Temelkuran, Selim Temelkuran, Güllü
Fidan (Temelkuran), Nuriye Akay (Temelkuran), Atike Temelkuran,
Nesibe Temelkuran, Nimet Temelkuran and Reşit Temelkuran
jointly in respect of non pecuniary damage;
(iii) EUR 1 000
(one thousand Euros) to Resul Sadak, Nihat Osal, Mehmet Çakar,
Rüstem Bayar, Tahir Kutlu, Cengiz Balık, İzzet Belge,
Abdurrezak İnan, Mehmet Nezir Ayan, Yakup Uyar and
Mehmet Temelkuran's heirs jointly in respect of costs and expenses;
(iv) any
taxes that may be chargeable on the above amounts;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicants' claim
for just satisfaction.
Done in English, and notified in writing on 8 January 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.]
Fatoş Aracı Nicolas Bratza
Deputy Registrar President
