European Court of Human Rights

SECOND SECTION

DECISION

Application no. 32661/02
by İsmet ASLAN
against Turkey

The European Court of Human Rights (Second Section), sitting on 2 September 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 3 June 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 observations submitted by the respondent Government and the observations in reply submitted by the applicant.

Having regard to the formal declarations accepting a friendly settlement of the case.

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr İsmet Aslan, is a Turkish national who was born in 1968 and lives in Diyarbakır. He was represented before the Court by Mr Hüseyin Tayfun, a lawyer practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent.

The circumstances of the case

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

On 7 May 1995 the applicant was arrested on suspicion of membership of an illegal organisation and of having carried out activities on its behalf. He was placed in custody at the police headquarters in Diyarbakır where he was questioned by police officers. In the statement the applicant was reported as having stated that he had participated in a failed bomb attack organised by the PKK¹.

At the end of his police custody on 2 June 1995 the applicant was brought before the duty judge at the Diyarbakır State Security Court. He told the duty judge that the contents of the statements he had made while in police custody were not true; he had had no involvement in the offence. The duty judge ordered the applicant’s detention in prison pending the introduction of criminal proceedings.

On 8 June 1995 the prosecutor at the Diyarbakır State Security Court filed an indictment with that court and accused the applicant and four other persons of carrying out activities for the purpose of bringing about the secession of part of the national territory, an offence defined in Article 125 of the Criminal Code in force at the time of the events.

On 22 October 1998 the Diyarbakır State Security Court (hereinafter “the trial court”) considered that the activities carried out by the applicant were insufficient to find him guilty of the offence defined in Article 125 of the Criminal Code, but sufficient to establish that he had been a member of the illegal organisation, an offence under Article 168 § 2 of the Criminal Code then in force. It sentenced the applicant to twelve years and six months’ imprisonment. One of the three judges on the bench of the trial court was an army officer.

The applicant appealed. On 30 September 1999 the Court of Cassation quashed the judgment of 22 October 1998 on the ground that it was not adequately reasoned.

A re-trial took place before the trial court, this time with a bench of three civilian judges.

On 21 December 2000 the trial court once more found the applicant guilty of the offence of membership of an illegal organisation and sentenced him to twelve years and six months’ imprisonment.

The applicant appealed against the judgment. In its decision of 3 December 2001 the Court of Cassation upheld his conviction.

COMPLAINTS

The applicant complained under Article 5 of the Convention that he had been detained in police custody for a period of 26 days and had not, as a result, been brought before a judge within a reasonable time.

Under the same Article the applicant submitted that his pre-trial detention lasted almost eight years and he had not, therefore, been released pending trial within a reasonable time. Furthermore, as there was no possibility to challenge the length of his pre-trial detention, he had been deprived of an effective remedy within the meaning of Article 13 of the Convention.

Invoking Article 6 §§ 1-3 of the Convention the applicant complained that;

- he had been denied a fair hearing by an independent and impartial court on account of the presence of a military judge on the bench of the State Security Court which tried and convicted him;

- the statement taken from him in police custody had been used in evidence against him;

- the prosecution witnesses had been heard elsewhere and, as such, their testimonies had not been tested by the trial court;

- there was no connection between the offence with which he had been charged and the offence of which he had subsequently been found guilty;

- the criminal proceedings had not been concluded within a reasonable time; and

- at all stages of the criminal proceedings he had been treated as a guilty person and his right to presumption of innocence had thus been violated.

THE LAW

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

“I declare that the Government of Turkey offer to pay 6,000 (six thousand) euros to Mr İsmet Aslan 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’s legal representative:

“I note that the Government of Turkey are prepared to pay the sum of 6,000 (six thousand) euros to Mr İsmet Aslan 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