KORKMAZ proti Turecku

THIRD SECTION

DECISION

Application no. 904/03
by Zülküf KORKMAZ
against Turkey

The European Court of Human Rights (Third Section), sitting on 7 December 2006 as a Chamber composed of:

Mr B.M. Zupančič, President,
Mr J. Hedigan,
Mr R. Türmen,
Mr C. Bîrsan,
Mr V. Zagrebelsky,
Mrs A. Gyulumyan,
Mr David Thór Björgvinsson, judges,
and Mr V. Berger, Section Registrar,

Having regard to the above application lodged on 22 November 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 deliberated, decides as follows:

THE FACTS

The applicant, Mr Zülküf Korkmaz, is a Turkish national who was born in 1959 and lives in Erzurum. He was represented before the Court by Mrs M. Avcı, a lawyer practising in Istanbul.

The facts of the case, as submitted by the parties, may be summarised as follows.

On 11 September 1999 the applicant was taken into custody together with Z.G. by gendarme officers from the Tekman District Gendarme Station.

On 15 September 1999 the applicant was brought before the public prosecutor at the Erzurum State Security Court, where he denied the charges brought against him. The same day the public prosecutor decided to release the applicant on account of lack of evidence.

On 3 November 1999 a PKK courier, S.B., was arrested in Erzurum. In his statement S.B. stated that he had taken eight walkie-talkies and a stereo tape from the applicant to hand over to members of the PKK.

On 31 October 2001 the public prosecutor at the Erzurum State Security Court initiated criminal proceedings against the applicant. He accused him of aiding an illegal organisation, namely the PKK. The prosecution called for the applicant to be sentenced pursuant to Article 169 of the Criminal Code.

On 21 November 2001 the Tekman Criminal Court, acting under powers delegated to it by the Erzurum State Security Court, took the applicant’s defence submissions. The public prosecutor’s indictment was not sent to the applicant prior to the hearing, but was read out at the beginning of the hearing. The applicant, who had no legal representation, was then asked to submit his defence submissions and evidence at the same hearing. The applicant denied the charges against him and stated that his statement dated 14 September 1999 had been taken under duress.

On 30 November 2001 the Erzurum State Security Court held a second hearing in the absence of the applicant. The court took note of the applicant’s defence submission which had been sent by the Tekman Criminal Court. At the same hearing, it found the applicant guilty as charged and sentenced him to three years and nine months’ imprisonment.

On 22 May 2002 the Court of Cassation upheld the judgment of the Erzurum State Security Court.

COMPLAINTS

The applicant complained under Article 6 of the Convention that his statement, which was taken under duress, was admitted to the case-file and that the judgment of Erzurum State Security Court was based on this statement.

He alleged under Article 6 § 3 (b) of the Convention that the indictment of the Erzurum State Security Court Public Prosecutor and the written opinion of the Principal Public Prosecutor at the Court of Cassation were not served on him, thus depriving him of the opportunity to put-forward his counter-arguments.

The applicant further alleged under Article 6 § 3 (c) of the Convention that he was deprived of his right to legal assistance while in police custody. Under the same provision, the applicant also maintains that he was not present before the State Security Court during the entire proceedings, and therefore he could not defend himself before the court which convicted him.

The applicant contended under Article 6 § 3 (d) of the Convention that he was not given the opportunity to question the witnesses against him, whose statements led to his conviction.

THE LAW

On 15 November 2006 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 5,000 (five 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 27 October 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 5,000 (five 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.

Vincent Berger Boštjan M. Zupančič
Registrar President