THIRD SECTION
DECISION
Application no. 35775/02
by Hasan KIZILKAYA
against Turkey
The European Court of Human Rights (Third Section), sitting on 8 February 2007 as a Chamber composed of:
MrB.M. Zupančič, President,
MrJ. Hedigan,
MrR. Türmen,
MrC. Bîrsan,
MrsA. Gyulumyan,
MrE. Myjer,
MrDavid Thór Björgvinsson, judges,
and Mr S. Quesada, Section Registrar,
Having regard to the above application lodged on 4 September 2002,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,
Having regard to the formal declarations accepting a friendly settlement of the case,
Having regard to the partial decision of 9 February 2006,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Hasan Kızılkaya, is a Turkish national who was born in 1978 and at the time of introduction of the application he was living in Istanbul. He is represented before the Court by Mrs F. Karakaş, a lawyer practising in Istanbul.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 3 June 1995 the applicant was arrested in Batman on suspicion of being a member of an illegal terrorist organisation and taken into police custody.
On 23 June 1995 he was handed over to the police officers from the Anti-Terrorism Institute of the Istanbul Security Directorate. On 29 June 1995 the Istanbul State Security Court ordered his detention on remand.
On 10 July 1995 the Public Prosecutor filed an indictment against the applicant and two others, charging them with being members of PKK, producing explosives, bombing and extortion, under Articles 168 and 264 of the Criminal Code.
On 26 February 2003 the court convicted the applicant. Nevertheless, considering the time that the applicant was detained on remand and his state of health, the court ordered his release.
On 15 January 2004 the Court of Cassation quashed the decision of the Istanbul State Security Court on some procedural grounds.
By Law no. 5190 of 16 June 2004, published in the official journal on 30 June 2004, the State Security Courts have been abolished. The applicant’s case has therefore been resumed before the Istanbul Assize Court and it is still pending.
COMPLAINTS
The applicant complained under Article 5 § 3 of the Convention about the length of his detention on remand.
He also complained under Article 6 § 1 of the Convention about the length of the criminal proceedings.
THE LAW
On 10 January 2007 the Court received the following declaration from the Government:
“I declare that the Government of Turkey offer to pay ex gratia to the applicant an all-inclusive amount of EUR 7,000 (seven thousand euros) with a view to securing a friendly settlement of the above-mentioned application pending before the European Court of Human Rights.
This sum, which also covers legal expenses connected with the case, shall be free of any tax that may be applicable and be paid in euros, to be converted into Turkish liras at the rate applicable at the date of payment, to a bank account named by the applicant and/or his duly authorised representative. It shall be payable within three months from the date of notification of the decision delivered by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. This payment will constitute the final settlement of the case. In the event of failure to pay this sum within the said three month period, the Government undertake to pay, until settlement, simple interest on the amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.”
On 11 December 2006 the Court received the following declaration signed by the applicant’s representative:
“I note that the Government of Turkey are prepared to pay ex gratia to the applicant an all-inclusive amount of EUR 7,000 (seven thousand euros) with a view to securing a friendly settlement of the above-mentioned application pending before the European Court of Human Rights.
This sum, which is to cover any pecuniary and non-pecuniary damage as well as legal costs and expenses connected with the case, shall be paid in euros, to be converted into Turkish liras at the rate applicable at the date of payment, to a bank account named by me. It shall be payable within three months from the date of notification of the decision delivered 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, until settlement, simple interest on the amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
I accept the proposal and waive any further claims against Turkey in respect of the facts of this application. I declare that this constitutes a final settlement of the case.
This declaration is made in the context of a friendly settlement which the Government and I have reached.”
The Court 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 (Article 37 § 1 in fine of the Convention). Accordingly, Article 29 § 3 of the Convention should no longer apply to the case and it should be struck out of the list.
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases.
Santiago QuesadaBoštjan M. Zupančič
RegistrarPresident
Full & Egal Universal Law Academy