FIRST SECTION

FINAL DECISION

Application no. 61595/00 by Mehmet CETINKAYA against Austria

The European Court of Human Rights (First Section), sitting on 24 June 2004 as a Chamber composed of:

Mr C.L. Rozakis , President , Mr P. Lorenzen , Mr G. Bonello , Mrs F. Tulkens , Mrs N. Vajić , Mrs E. Steiner , Mr K. Hajiyev, judges , and Mr S. Q uesada , Deputy Section Registrar ,

Having regard to the above application lodged on 26 September 2000,

Having regard to the partial decision of 3 October 2002 and to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the remaining complaint together.

Having deliberated, decides as follows:

THE FACTS

The applicant, Mehmet Cetinkaya, is a Turkish national, who was born in 1965 and lives in Bregenz. He is represented before the Court by Mr W.L.Weh, a lawyer practising in Bregenz. The respondent Government (“the Government”) were represented by their Agent, Ambassador H. Winkler, Head of the International Law Department at the Federal Ministry of Foreign Affairs.

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

On 18 May 1993 the Bregenz District Authority ( Bezirkshauptmannschaft ) issued a provisional penal order ( Strafverfügung ) in which it sentenced the applicant under the relevant provisions of the Aliens Act ( Fremdengesetz ).

On 3 June 1993 the applicant, assisted by counsel, filed an objection against this decision.

On 21 December 1994 the District Authority issued a penal order against the applicant ( Straferkenntnis ), which confirmed its previous decision and sentenced the applicant to a fine of ATS 2,000 (with two days’ imprisonment in default).

On 28 September 1995 the Vorarlberg Independent Administrative Panel ( Unabhängiger Verwaltungssenat ), sitting in camera, dismissed the applicant’s appeal.

Subsequently, the applicant lodged a complaint with the Constitutional Court ( Verfassungsgerichtshof ).

On 11 June 1996 the Constitutional Court, sitting in camera, refused to deal with the applicants’ complaint for lack of prospects of success and referred the case to the Administrative Court ( Verwaltungsgerichtshof ).

On 11 November 1996, upon the Administrative Court’s request, the applicant filed supplementary submissions.

On 10 January 1997 the Vorarlberg Independent Administrative Panel filed its comments on the applicant’s appeal.

On 27 January 2000 the Administrative Court refused to deal with the applicants’ since the amount of the penalty did not exceed ATS 10,000 and no important legal problem was at stake. The decision was served on 28 March 2000.

COMPLAINT

The applicant complained under Article 6 of the Convention about the length of the administrative criminal proceedings.

THE LAW

On 28 April 2004 the Court received the following declaration from the Government:

“I declare that, with a view to securing a friendly settlement of the above-mentioned case , the Government of Austria offer to pay the amount of EUR 5,000 to Mehmet Cetinkaya in respect of the above application an ex gratia basis for the withdrawal of its application pending before the Court. This sum includes EUR 2,000 for costs and expenses. It will be paid, free of any taxes that may be applicable, within three months from the notification of the decision taken by the Court pursuant to the Article 37 § 1 of the Convention. 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. The payment will constitute the final resolution of the case.”

On 19 April 2004 the Court had already received the following declaration from the applicant:

“I note that the Government of Austria offer to pay the applicant the amount of EUR 5,000 on an ex gratia basis in respect of the above application pending before the Court. This sum includes EUR 2,000 for costs and expenses. It will be paid, free of any taxes that may be applicable, within three months from the notification of the decision taken by the Court pursuant to Article 37 § 1 of the Convention. 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 offer and withdraw the application waiving any further claims against Austria in respect of the application. I declare that this constitutes a final settlement of the case.”

The Court reiterates the terms of Artcle 37 § 1 of the Convention which, so far as relevant, reads as follows:

“1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that

(a) the applicant does not intend to pursue his application; or

(b) the matter has been resolved; or

However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”

The Court takes note of the friendly settlement reached between the parties and considers that the applicant no longer intends to pursue his application and that the matter has been resolved. Furthermore, in accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the examination of the application to be continued. Accordingly, the application to the case of Article 29 § 3 of the Convention should be discontinued and the case struck out of the list.

For these reasons, the Court unanimously

Decides to discontinue the application of Article 29 § 3 of the Convention and to strike the application out of its list of cases.

Santiago Q uesada Christos Rozakis                Deputy Registrar President