by Şener DÜNÜK
The European Court of Human Rights (Second Section), sitting on 6 October 2009 as a Chamber composed of:
Ireneu Cabral Barreto,
Kristina Pardalos, judges,
and Françoise Elens-Passos, Deputy Section Registrar,
Having regard to the above application lodged on 19 April 2002,
Having regard to the formal declarations accepting a friendly settlement of the case.
Having regard to the partial decision of 26 June 2007,
Having deliberated, decides as follows:
The applicant, Mr Şener Dünük, is a Turkish national who was born in 1978 and lives in Siirt. He was represented before the Court by Mr F.H. Demir, a lawyer practising in Diyarbakır. 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 6 October 2001 the applicant was arrested by police officers from the Anti-Terrorist Branch of the Diyarbakır Police Headquarters in the course of a police operation carried out against Hizbullah.
On 19 October 2001 the applicant was examined by a doctor at the Diyarbakır State Hospital who found no signs of pathology on the applicant’s body. The applicant was subsequently detained and transferred to the Diyarbakır prison.
On the same day, at the request of the Governor of the State of Emergency Region and the public prosecutor, pursuant to Article 3 (c) of Law-Decree no. 430, which allowed them to take further measures within the framework of the state of emergency, a single judge at the State Security Court authorised the applicant’s return from prison to the Anti Terrorist Branch of the Diyarbakır Police Headquarters for further questioning for ten days.
On 29 October 2001, the single judge at the State Security Court authorised the applicant’s detention in the police headquarters for a further ten days.
On 29 October, 6 and 8 November 2001 the applicant was examined by doctors at the Diyarbakır State Hospital, who noted that the applicant complained of pain in the right shoulder and that there was no sign of pathology on the applicant’s body.
On 8 November 2001 the applicant was transferred to Diyarbakır prison.
In the meantime, on 25 October 2001 criminal proceedings were brought against the applicant before the Diyarbakır State Security Court with the charge of attempting to undermine the constitutional order under Article 146 of the former Criminal Code.
On 12 and 14 November 2001, 2 January and 5 March 2002 the applicant and his representative maintained before the State Security Court and the public prosecutor’s office that the applicant had been subjected to various forms of ill-treatment, notably Palestinian hanging, while in police custody.
On an unspecified date the Diyarbakır public prosecutor initiated an investigation into the applicant’s allegations.
On 24 January 2002 the applicant was examined by a neurologist at a private health clinic, who observed an acute brachial plexus lesion on the applicant’s right arm.
On 18 March 2002 the public prosecutor requested the Diyarbakır governor to grant authorisation for the prosecution of police officers. On 14 May 2002 the governor rejected this request.
On 7 March 2003 the Diyarbakır public prosecutor decided to terminate the investigation on the basis of the Diyarbakır governor’s decision of 14 May 2002.
The applicant complained under Article 3 of the Convention that he had been subjected to ill-treatment during his detention in police custody and that there had been no effective investigation into his allegations.
The applicant alleged under Article 5 of the Convention that the length of his detention in police custody was excessive. He further complained under the same head that his detention in police custody between 19 October and 8 November 2001 had been unlawful.
The Court received the following declaration from the Government:
“The Government regret the occurrence of the circumstances that led to the introduction of this application.
I declare that the Government of Turkey offer to pay ex gratia 6,000 euros to Mr Şener Dünük 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 Turkish liras at the rate applicable on the date of payment, and will be free of any taxes that may be applicable. It will be payable within three months of 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.
Ankara, 7 March 2009
For the Government
Head of Department ECHR Ministry of Foreign Affairs”
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 6,000 euros to Mr Şener Dünük 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 Turkish liras at the rate applicable on the date of payment, and will be 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.
Having consulted my client, I would inform you that he accepts the proposal and waives any further claims against Turkey in respect of the facts giving rise to this application. He declares that this constitutes a final resolution of the case.
Diyarbakır, 16 February 2009
For the applicant
Fuat Hayri Demir”
The Court notes that the present application concerns the alleged ill treatment of the applicant while in police custody and the lawfulness and length of his detention therein. As regards Article 3 of the Convention, the Court refers to its well established case law according to which any recourse to ill-treatment of persons in custody constitutes a violation of this provision (see, among many others, Selmouni v. France [GC], no. 25803/94, § 73-104, ECHR 1999 V, and Batı and Others v. Turkey, nos. 33097/96 and 57834/00, § 110 124, ECHR 2004 IV (extracts)). The Court further notes that it has found a violation of Article 5 § 1 (c) of the Convention in the case of Emrullah Karagöz v. Turkey (no. 78027/01, § 59, ECHR 2005 X (extracts)) holding that detention in police custody pursuant to Article 3 of Decree no. 430 had been in breach of the requirements of lawfulness in Article 5 § 1 (c) since all the safeguards that should be provided during questioning were rendered inoperative.
In the present case, on the basis of documents in the case file, the Court considers that the applicant has made a prima facie case that he was subjected to ill-treatment in police custody and that his detention between 19 October and 8 November 2001 was unlawful. Besides, the Government, in their declaration dated 7 March 2009, also noted that they regretted the occurrence of the circumstances that had led to the introduction of this application.
That being so, the Court takes note of the friendly settlement reached between the parties. In this respect, the Court observes that the Government’s declaration is based on respect for human rights and that the applicant unequivocally accepted the terms of the Government’s declaration. Having regard to the foregoing, the Court is satisfied by the parties’ settlement. It 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 strike the case out of the list.
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases.
Françoise Elens-Passos Françoise
Deputy Registrar President