European Court of Human Rights

SECOND SECTION

DECISION

Application no. 20013/03
by Kemal GÜNGÜ
against Turkey

The European Court of Human Rights (Second Section), sitting on 1^st July 2008 as a Chamber composed of:

Françoise Tulkens, President,
Ireneu Cabral Barreto,
Vladimiro Zagrebelsky,
Danutė Jočienė,
András Sajó,
Nona Tsotsoria,
Işıl Karakaş, judges,
and Sally Dollé, Section Registrar,

Having regard to the above application lodged on 16 June 2003,

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 Kemal Güngü, is a Turkish national who was born in 1973 and lives in Istanbul. He was represented before the Court by Ms H. Çekiç, a lawyer practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent.

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

On 25 February 1994 the applicant was taken into police custody on suspicion of membership of the PKK (the Kurdistan Worker’s Party, an illegal organisation).

On 11 March 1994 he was brought before a single judge at the Istanbul State Security Court who ordered his detention on remand.

On 23 June 1994 the public prosecutor at the Istanbul State Security Court filed a bill of indictment against the applicant and forty-five other persons. The applicant was charged with carrying out activities for the purpose of bringing about the secession of part of the national territory, proscribed by Article 125 of the former Criminal Code.

On 5 May 1999 the Istanbul State Security Court convicted the applicant as charged and sentenced him to the death penalty, subsequently commuted to life imprisonment.

On 19 September 2000 the Court of Cassation quashed the judgment of 5 May 1999 in respect of some of the accused, including the applicant, and remitted the case to the Fourth Chamber of the Istanbul State Security Court.

At the end of each hearing, the Fourth Chamber of the Istanbul State Security Court considered the applicant’s detention on remand, either of its own motion or at the applicant’s request. It ordered the applicant’s continued detention pending trial, having regard to the nature of the offence with which he was charged and the state of evidence.

On 3 June 2003 the applicant filed an objection against the first-instance court’s order of 28 May 2003 for his continued detention on remand.

On 5 June 2003 the Fifth Chamber of the Istanbul State Security Court dismissed the applicant’s objection.

On 21 June 2004 the Fourth Chamber of the Istanbul State Security Court ordered the applicant’s release pending trial, taking into consideration the amount of time that he had been detained on remand.

By Law no. 5190 of 16 June 2004, published in the Official Gazette on 30 June 2004, State Security Courts were abolished. The case against the applicant was transferred to the Istanbul Assize Court.

According to the information in the case file, the proceedings against the applicant are still pending before the Istanbul Assize Court.

COMPLAINTS

The applicant contended under Articles 5 § 3 and 6 § 2 of the Convention that his detention on remand had exceeded the “reasonable time” requirement.

The applicant maintained under Article 6 § 1 of the Convention that the length of the criminal proceedings brought against him was excessive.

THE LAW

The Court received the following declaration from the Government’s Agent:

“I declare that the Government of Turkey offer to pay ex gratia 10,000 (ten thousand) euros to Mr Kemal Güngü with a view to securing a friendly settlement of the above mentioned case pending before the European Court of Human Rights.

This sum, which is to cover any pecuniary and non-pecuniary damage as well as costs and expenses, will be converted into new Turkish liras at the rate applicable on the date of payment and free of any taxes that may be applicable. It will be payable within three months from the date of notification of the decision taken 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 simple interest on it, from expiry of that period until settlement, 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.”

The Court received the following declaration signed by the applicant party:

“I note that the Government of Turkey are prepared to pay ex gratia the sum of 10,000 (ten thousand) euros to Mr Kemal Güngü with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights.

This sum, which is to cover any pecuniary and non-pecuniary damage as well as costs and expenses, will be converted into new Turkish liras at the rate applicable on the date of payment, and free of any taxes that may be applicable. It will be payable within three months from the date of notification of the decision taken 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 giving rise to this application. I declare that this constitutes a final resolution of the case.”

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). In view of the above, it is appropriate to discontinue the application of Article 29 § 3 and to strike the case out of the list.

For these reasons, the Court unanimously

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

Sally Dollé Françoise Tulkens
Registrar President