KÜLEKCI and OTHERS proti Turecku

FIRST SECTION

DECISION

Application no. 39330/98
by Levent KÜLEKÇİ and Others
against Turkey

The European Court of Human Rights (First Section), sitting on 12 December 2002 as a Chamber composed of

Mr C.L. Rozakis, President,
Mrs F. Tulkens,
Mr R. Türmen,
Mr P. Lorenzen,
Mrs N. Vajić,
Mr E. Levits,
Mr A. Kovler, judges,
and Mr S. Nielsen, Deputy Section Registrar,

Having regard to the above application lodged with the European Commission of Human Rights on 10 October 1997,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The applicants, Mr Levent Külekçi, Mr Yavuz Şimşek and Mr Ömür Özdemir, are Turkish nationals, who were born in 1972, 1978 and 1974 respectively and live in Samsun. They were represented before the Court by Mr K. Genç, a lawyer practising in Ankara. The respondent Government were represented by Mr E. İşcan, Deputy Director General for Council of Europe and Human Rights.

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

On 25 December 1996 policemen from the Anti-Terror branch of Samsun Police Headquarters arrested the applicants and placed them in custody in Samsun.

While in custody the applicants were blindfolded, hosed with cold water, beaten and threatened with death by policemen. They questioned the applicants about their involvement in an illegal armed organisation, the Communist Revolution Movement (Komünist Devrim Hareketi).

On 27 December 1996 the Samsun Magistrate’s Court ordered the applicants to be detained on remand. Later the same day the applicants, who were now in prison, requested to be examined by a doctor from the Forensic Medicine Institute.

On 3 January 1997 the prison administration sent the applicants to the Forensic Institute where they underwent a doctor’s examination. The doctor drew up a report for each of the applicants. The doctor noted the presence of bruises and scabs on various parts of the applicants’ bodies. He considered that the injuries found were not life threatening but would prevent the applicants from working for five days in the case of the first applicant and three days in the case of the second and third applicants.

The applicants filed petitions with the Public Prosecutor’s office in Samsun. They complained that they had been tortured by policemen at the Anti-Terror branch of the Samsun Security Directorate with a view to extracting confessions.

The Public Prosecutor’s office opened a preliminary investigation and questioned the policemen at the Security Directorate in connection with the applicants’ allegations.

On 20 January 1997 the Samsun Public Prosecutor decided that no prosecution should be brought against policemen at the Security Directorate, on the grounds that there was no evidence other than the applicants’ unsubstantiated allegations that they had been ill-treated or threatened. The Prosecutor also found that the applicants could not identify the policemen who had ill-treated them and that the medical reports did not mention any signs of torture.

On 10 March 1997 the applicants filed an objection with the Çarşamba Assize Court against the Public Prosecutor’s decision of 20 January 1997.

On 1 May 1997 the Çarşamba Assize Court dismissed the applicants’ objection. This decision was served on the applicants on 11 July 1997.

COMPLAINT

The applicants complained under Article 3 of the Convention that they were subjected to torture in the course of their detention in police custody. They submit that they were beaten and threatened with death with a view to extracting confessions from them.

THE LAW

On 25 September 2002 the Court received the following declaration from the Government:

“1. The Government regret the occurrence of individual cases of ill-treatment by the authorities of persons detained in custody, as in the case of the applicants, notwithstanding existing Turkish legislation and the resolve of the Government to prevent such actions. It is accepted that the recourse to ill-treatment, as claimed in the present case, and the failure to conduct effective investigations constituted a violation of Article 3 of the Convention. The Government undertake to issue appropriate instructions and adopt all necessary measures to ensure that the prohibition of such actions – including the obligation to carry out effective investigations as required by Articles 3 and 13 is respected. It is noted in this connection that new legal and administrative measures have been adopted which have resulted in, among other things, more effective investigations into cases of ill-treatment in circumstances similar to those of the instant application.

2. I declare that the Government of Turkey offer to pay ex gratia to the applicants, Mr Levent Külekçi, Mr Yavuz Şimşek and Mr Ömür Özdemir, an all-inclusive amount of EUR 66,000 (sixty-six thousand euros) (EUR 22,000 twenty-two thousand euros to each of the applicants) in their application registered under no. 39330/98. This sum, which covers any pecuniary and non-pecuniary damage as well as legal costs and expenses connected with the case, shall be free of any tax that may be applicable and be paid in euros to a bank account named by the applicants and/or their duly authorised representative. This sum shall be payable within three months from the date of the notification of the decision delivered by the Court pursuant to Article 37 of the European Convention on Human Rights. A default interest of 7,25% shall be payable from the expiry of the above-mentioned three months until settlement. This payment will constitute the final settlement of the case.”

On 26 June 2002 the Court received the following declaration signed by the applicant’s representative:

“In my capacity as the representative of the applicants, Mr Levent Külekçi, Mr Yavuz Şimşek and Mr Ömür Özdemir, I note that the Government of Turkey are prepared to make to the applicants an ex gratia all-inclusive payment of EUR 66,000 (sixty-six thousand euros) (EUR 22,000 twenty-two thousand euros to each of the applicants), in application no. 39330/98. This sum, which is to cover any pecuniary and non-pecuniary damage as well as legal costs and expenses connected with the case, will be paid in accordance with the terms stipulated in the said declaration within three months after notification of the Court’s decision delivered pursuant to Article 37 of the Convention.

Having duly consulted the applicants, I accept that offer and they, in consequence, waive all other claims against Turkey in respect of the matters that were at the origin of the application. We declare that the case has been definitely settled and withdraw the application before the Court.”

The Court takes note of the agreement reached between the parties. It is satisfied that the settlement is based on respect for human rights as defined in the Convention or its Protocols (Article 37 § 1 in fine of the Convention).

Accordingly, the case should be struck out of the list.

For these reasons, the Court unanimously

Decides to strike the application out of its list of cases.

Søren Nielsen Christos Rozakis
Deputy Registrar President