TEKMEK proti Turecku

SECOND SECTION

DECISION

Application no. 50035/99
by Mustafa Ismet TEKMEK
against Turkey

The European Court of Human Rights (Second Section), sitting on 28 November 2006 as a Chamber composed of:

Mr A.B. Baka, President,
Mr J.-P. Costa,
Mr R. Türmen,

Mrs A. Mularoni,
Mrs E. Fura-Sandström,
Ms D. Jočienė,
Mr D. Popović, judges,
and Mrs S. Dollé, Section Regisrar,

Having regard to the above application lodged on 8 June 1999,

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 Mustafa Ismet Tekmek, is a Turkish national who was born in 1974 and was serving his prison sentence in Aydın at the time of the lodging of his application with the Court. He was represented before the Court by Mr H. Tatar, a lawyer practising in Ankara.

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

On 30 May 1997 the applicant was taken into police custody.

On 6 June 1997 the applicant was brought to the Public Prosecutor’s Office at the Ankara State Security Court where he denied the accusations against him. On the same day he was appeared before the Ankara State Security Court where he denied the contents of his statements given to the police. The court ordered his remand in custody.

According to the medical report issued by the Ankara Forensic Medical Institute on 9 June 1997, the applicant had ecchimoses of 3x2, 2x1 and 6x2 on his left leg and 5 cm on his chest. He also had bruises under both of his armpits. The report indicated that the applicant had complained of being hung and that he had difficulty of movement and numbness in his arms.

On 11 June 1997 the public prosecutor at the Ankara State Security Court filed a bill of indictment accusing the applicant and six other co‑accused of membership of an illegal armed organisation, namely the PKK[1]. He requested that the applicant be convicted and sentenced under Article 168 § 2 of the Criminal Code and Article 5 of Law no. 3713.

On 10 June 1998 the Ankara State Security Court, taking into consideration the statements of the applicant and his co-accused and the documents, money, false passports and identity papers seized at the houses of the accused, convicted the applicant as charged and sentenced him to fifteen years’ imprisonment. On 29 December 1998 the Court of Cassation held a hearing and upheld the judgment of the Ankara State Security Court.

The Government submitted that on 5 November 2004 the Ankara Assize Court had suspended the execution of the applicant’s sentence in light of the provisions of the new Criminal Code.

COMPLAINTS

The applicant originally complained under Article 3 of the Convention that he had been subjected to ill-treatment in police custody.

The applicant submitted that his imprisonment constituted a breach of Article 5 § 1 (a) and (b) of the Convention since he had been convicted solely on the basis of his statements taken under torture in police custody.

The applicant complained under Article 6 §§ 1 and 3 (d) of the Convention that he was denied a fair hearing by an independent and impartial tribunal because, inter alia, of the presence of a military judge on the bench of the Ankara State Security Court.

THE LAW

On 26 October 2006 the Court received the following declaration from the Government:

“I declare that the Government of Turkey offer to pay ex gratia EUR 6,000 (six thousand euros) to Mr Mustafa Ismet Tekmek with a view to securing a friendly settlement of the application registered under no. 50035/99. This sum shall cover any pecuniary and non‑pecuniary damage as well as costs.

This sum will be payable within three months from the date of the decision by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. It shall be paid in euros to a bank account named by the applicant, free of any taxes and charges that may be applicable. 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.

The payment will constitute the final resolution of the case.”

On 4 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 the sum of EUR 6,000 (six thousand euros) to Mr Mustafa Ismet Tekmek with a view to securing a friendly settlement of the application registered under no. 50035/99. This sum shall cover any pecuniary and non-pecuniary damage as well as costs.

I also note that the amount indicated will be paid, in euros and free of any taxes and charges that may be applicable, within three months from the date of the decision by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. 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.

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 the applicant 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 and finds no public policy reasons to justify a continued examination of the application (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.

S. Dollé J.-P. Costa
Registrar President

1. The Kurdistan Workers’ Party