DEMIREL proti Turecku

THIRD SECTION

FINAL DECISION

Application no. 30493/96
by Ersin DEMIREL
against Turkey

The European Court of Human Rights (Third Section), sitting on 18 April 2002 as a Chamber composed of

Mr G. Ress, President,
Mr L. Caflisch,
Mr P. Kūris,
Mr R. Türmen,
Mr B. Zupančič,
Mrs H.S. Greve,
Mr K. Traja, judges,

and Mr V. Berger, Section Registrar,

Having regard to the above application lodged with the European Commission of Human Rights on 10 January 1996,

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 partial decision of 9 March 1999,

Having regard to the formal declarations accepting a friendly settlement of the case submitted by the Government and the applicant on 11 March 2002 and 1 March 2002 respectively,

Having deliberated, decides as follows:

THE FACTS

The applicant, Ersin Demirel, is a Turkish national, who was born in 1960 and lives in Giresun (Turkey). He was represented before the Court by Ms Semra Dural Esim, a lawyer practising in Muğla.

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

On 4 December 1980 police officers from the Istanbul Security Directorate arrested the applicant on suspicion of membership of an illegal armed organisation and placed him in custody.

On 11 March 1981 the Istanbul Martial Law Court ordered the applicant’s detention on remand.

On 10 August 1981 the Military Public Prosecutor filed a bill of indictment with the Martial Law Court against the applicant accusing him, inter alia, of membership of an illegal armed organisation, namely the THKP/C (Turkish People’s Liberation Party/Front), whose object was to undermine the constitutional order and replace it with a Marxist-Leninist regime. He further charged the applicant with having been involved in a number of crimes such as an armed robbery of a factory in Istanbul and hiding weapons for members of the organisation. The prosecution sought the death penalty under Article 146 § 1 of the Criminal Code.

In a judgment of 27 September 1984 the Istanbul Martial Law Court convicted the applicant of membership of the THKP/C and his involvement in some of the alleged crimes. It sentenced the applicant to lifetime imprisonment under Article 146 § 1 of the Criminal Code. The applicant appealed.

On 6 June 1990 the Military Court of Cassation quashed the above judgment holding that the applicant should have been convicted of the offence under Article 146 § 3 of the Criminal Code.

On 14 April 1991 the Istanbul Martial Law Court ordered the applicant’s release pending trial.

On 17 August 1990 the Istanbul Martial Law Court adhered to the Military Court of Cassation’s decision of 6 June 1990 and convicted the applicant under Article 146 § 3 of the Criminal Code. It sentenced the applicant to five years and ten months’ imprisonment, permanently debarred him from civil services and placed him under judicial guardianship. It took the Martial Law Court from 17 August 1990 until 6 April 1993 for the reasons for the judgment to be set down in writing. The applicant appealed.

Following promulgation of the Law of 27 December 1993, which abolished the jurisdiction of the Martial Law Courts, the Court of Cassation (Yargıtay) acquired jurisdiction over the case and the case file was transmitted to it.

On 27 September 2000 the Court of Cassation decided, under Article 322 of the Criminal Code, that the criminal proceedings against the applicant should be discontinued since the prosecution was time-barred.

COMPLAINT

The applicant complained that the criminal proceedings against him were not dealt with within a “reasonable time” as required by Article 6 § 1 of the Convention.

THE LAW

Following informal contacts between the applicants’ and the Government’s representatives, the Section Registrar was asked to assist the parties in reaching a solution to the matter. As a result, the Registrar addressed draft declarations to the parties.

The Court received the following declaration from the Government:

“I declare that the Government of Turkey offer to pay Mr Ersin Demirel, on an ex gratia basis, the all-inclusive amount of 16,750 (sixteen thousand seven hundred and fifty) euros with a view to securing a friendly settlement of the application registered under no. 30493/96 pending before the Court. This sum, which also covers legal expenses connected with the case, shall be payable within three months from the date of the notification of the decision by the Court pursuant to the Article 39 of the European Convention on Human Rights.

This sum shall be paid in Euros to a bank account named by the applicant, free of any taxes and charges that may be applicable. The payment will constitute the final resolution of the case.”

The Court received the following declaration from the representative of the applicant:

“I note that the Government of Turkey are prepared to pay Mr Ersin Demirel, on an ex gratia basis, the all-inclusive amount of 16,750 (sixteen thousand seven hundred and fifty) euros with a view to securing a friendly settlement of the application registered under no. 30493/96 pending before the Court. This sum, which also covers legal expenses connected with the case, shall be payable within three months from the date of the notification of the decision by the Court pursuant to the Article 39 of the European Convention on Human Rights, to a bank account named by the applicant, free of any taxes and charges that may be applicable.

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 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 and considers that there is no reason which would justify the continuation of the examination of the application (Article 37 § 1 in fine of the Convention and Rule 62 § 3 of the Rules of the Court).

For these reasons, the Court unanimously

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

Vincent Berger Georg Ress
Registrar President