SECOND SECTION

DECISION

Application no . 27382/07 Nurcan CANPOLAT and O thers against Turkey

The European Court of Human Rights (Second Section), sitting on 4 December 2012 as a Chamber composed of:

Guido Raimondi , President, Danutė Jočienė , Peer Lorenzen , Dragoljub Popović , Işıl Karakaş , Nebojša Vučinić , Paulo Pinto de Albuquerque , judges, and Stanley Naismith , Section Registrar ,

Having regard to the above application lodged on 22 June 2007,

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

Having deliberated, decides as follows:

FACTS AND PROCEDURE

The applicants, Nurcan Canpolat , Serhan Canpolat , Fehime Canpolat , Osman Gazi Canpolat , Nevroz Canpolat and Baran Canpolat , are Turkish nationals who were born in 1973, 1931, 1933, 1990, 1992 and 1993 respectively and live in Diyarbakır . They were represented before the Court by Mr Sedat Çınar , a lawyer practising in Diyarbakır .

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, and as they appear from the documents submitted by them, may be summarised as follows.

In the early hours of 31 October 1993 Kemal Canpolat was arrested at his father ’ s house by police officers from the Anti-Terrorist Branch of the Diyarbakır Police Headquarters. Kemal Canpolat was the husband of the first applicant, the son of the second and third applicants, and the father of the remaining three applicants.

Before Kemal Canpolat was taken into custody he was examined by a doctor, who recorded in a report that there were no injuries on his body.

In a statement drawn up on 3 November 1993 by a number of police officers Kemal Canpolat was reported as having told the police officers that he was a member of the PKK (Workers ’ Party of Kurdistan) and that a pistol given to him by other PKK members was in his house. According to the same statement he was then taken to his own house, where the police officers found the pistol hidden in the bedroom. He was subsequently taken back to the police station.

In a letter dated 21 November 2006 the first applicant Mrs Canpolat stated that when brought to the house on 3 November 1993 her husband had been unable to stand up without the help of the police officers. His clothes were wet, the right side of his face was bruised, the left side of his head was swollen and his right arm was in a sling. She also stated in the letter that no pistols had been found in the house.

According to a letter dated 10 November 1993 and signed by a police chief, Kemal Canpolat complained of feeling unwell in police custody and asked to be examined by a doctor. The doctor who examined him the same day wrote on the same letter that Kemal Canpolat was suffering from “neurotic depression”.

At 6.40 p.m. on 11 November 1993 Kemal Canpolat was taken from police custody, by police officers, to a hospital. According to the hospital notes, when he arrived at the hospital he was in shock. The doctors started treating him but his heart stopped. He was pronounced dead after an unsuccessful cardiac massage.

A post-mortem examination was carried out the following day. The doctor who carried out the examination noted the existence of small ecchymosed areas on his penis and head. The cause of death was established as peritonitis (inflammation of the serous membrane) caused by perforation of a duodenal ulcer. A prosecutor was present during the autopsy.

No investigation of the death was opened by the authorities.

In 1995 the first applicant, Mrs Canpolat , applied to the European Commission of Human Rights, and alleged that her husband had been detained and had died in circumstances which engaged the responsibility of the respondent State under Articles 2, 3 and 5 of the Convention. In 1996 the application was declared inadmissible for the applicant ’ s failure to comply with the six-month rule (see Canpolat v. Turkey ( dec .), no. 28491/95, Commission decision of 9 April 1996).

In 1999 a Mr Mehmet Zahir Karadeniz , who had apparently been detained in the same police station and at the same time as Mr Kemal Canpolat , applied to the Court and alleged that he had been subjected to ill ‑ treatment whilst in custody (see Karadeniz v. Turkey ( dec .), no. 53048/99, 21 March 2006). When subsequently questioned by a prosecutor in relation to the complaints made in his application form, Mr Karadeniz informed the prosecutor that Kemal Canpolat had been tortured and killed in police custody.

An investigation was opened in connection with the allegations made by Mr Karadeniz about the death of Mr Canpolat . On 27 February 2001 the Diyarbakır prosecutor decided not to prosecute anyone in connection with Kemal Canpolat ’ s death. In reaching his decision the prosecutor had regard to the cause of death mentioned in the above-mentioned post-mortem report of 12 November 1993, and concluded that there was insufficient evidence to show that Kemal Canpolat had died as a result of ill-treatment.

The prosecutor ’ s decision was not communicated to the applicants. The first applicant subsequently found out about the decision and lodged an objection to it on 24 October 2006. In her statement of objection she alleged, inter alia , that the prosecutor had failed to question her, other family members, the police officers who had been on duty at the time of her husband ’ s detention, and a number of other people who had been detained in the police station at the same time as her husband. She also alleged that the post-mortem examination had not been conducted in a professional way and that the post-mortem report had omitted to mention a number of crucial issues.

The Siverek Assize Court dismissed the objection on 5 December 2006. It considered that the fact that Mr Karadeniz had waited for a period of seven to eight years before making the allegations showed that the allegations were “abstract”.

The Siverek Assize Court decision was served on the applicants ’ lawyer on 28 December 2006.

COMPLAINTS

The applicants complained under Article 2 of the Convention that their relative had been killed intentionally while in police custody. They further complained under the same provision that, even assuming that his death had been caused by the duodenal ulcer, the national authorities had failed to take the necessary and timely steps to save his life.

Under Article 3 of the Convention the applicants alleged that Kemal Canpolat had been subjected to ill-treatment amounting to torture whilst detained in police custody.

Relying on Articles 2 and 13 of the Convention the applicants argued that no investigation had been carried out into the death in its immediate aftermath and that the investigation conducted in 2001 had not been effective.

THE LAW

On 1 August 2012 the Court received the following declaration from the Government:

“I declare that the Government of the Republic of Turkey offers to pay ex gratia to the applicants, Mrs Nurcan Canpolat , Mr Serhan Canpolat , Mrs Fehime Canpolat , Mr Osman Gazi Canpolat , Mr Nevroz Canpolat and Mr Baran Canpolat , the amount of 15 000 Euros in respect of the application registered under no. 27382/07.

This sum, which is considered to be appropriate in the light of the jurisprudence of the Court, covers any pecuniary and non-pecuniary damage as well as costs, and shall be paid in Turkish Liras, free of any tax that may be applicable. The sum shall be payable within three months from the delivery of the decision by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. This payment will constitute the final resolution of the case.

The Government considers that the insufficient investigations into allegations of the applicants in the present case was not in accordance with the requirements established by the case-law of the Court in the framework of failure to conduct effective investigation as required by Article 2 of the Convention. The Government undertakes to issue appropriate instructions and adopt all necessary measures with a view to ensuring that effective investigations into the death incidents are carried out in accordance with its obligations under the Convention. The Government, respectfully invites the Court to declare that it is not justified anymore to continue the examination of the application and to strike the case out of its lists in accordance with Article 37 of the Convention.”

On 1 November 2012 the Court received the following declaration signed by the applicants:

“I, Sedat Çınar , note that the Government of Turkey are prepared to pay ex gratia and jointly to Mrs Nurcan Canpolat , Mr Serhan Canpolat , Mrs Fehime Canpolat , Mr Osman Gazi Canpolat , Mr Nevroz Canpolat and Mr Baran Canpolat , with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights, 15,000 (fifteen thousand) euros to cover any and all pecuniary and non-pecuniary damage as well as costs and expenses, plus any tax that may be chargeable to the applicants.

This sum will be converted into the national currency of the respondent State at the rate applicable on the date of payment, and will be payable within three months from the date of notification of the decision taken by the Court to strike the case out of its list of cases. 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 clients, I would inform you that they accept the proposal and waive any further claims against Turkey in respect of the facts giving rise to this application. They 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 reasons to justify a continued examination of the application.

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 in accordance with Article 39 of the Convention.

Stanley Naismith Guido Raimondi Registrar President