FOURTH SECTION

DECISION

Application no. 39675/98 by Orkut ARUÇ against Turkey

The European Court of Human Rights (Fourth Section), sitting on 6 April 2004 as a Chamber composed of:

Sir Nicolas Bratza , President , Mr M. Pellonpää , Mr R. Türmen , Mr J. Casadevall , Mr S. Pavlovschi , Mr J. Borrego Borrego , Mrs E. Fura-Sandström, judges , and Mr M. O'Boyle , Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 23 December 1997,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the formal declarations accepting a friendly settlement of the case submitted by the applicants and the Government on 22 August 2003 and 5 March 2004 respectively,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Orkut Aruç, is a Turkish national who was born in 1980 and lives in Istanbul. He was represented before the Court by Mrs M. Karalı, a lawyer practising in Istanbul.

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

On 20 February 1997 at about 11 p.m. the applicant, who was 17 years' old at the time, was caught by police officers while robbing a shoe-shop in the centre of Istanbul. The applicant neither resisted arrest nor attempted to escape. Three police officers allegedly beat him inside the shop before bringing him to ÅžiÅŸli Central Police Station where he was placed in custody.

On 21 February 1997 the ÅžiÅŸli public prosecutor authorised the ÅžiÅŸli Security Directorate to extend the applicant's detention period for four days.

In his statement, allegedly taken under duress in the police station, the applicant confessed that he had not only attempted to rob the shoe-shop but had also committed twenty-four other robberies in various parts of the city in the past three years.

On 24 February 1997 the applicant was examined by a doctor from ÅžiÅŸli Forensic Medicine Institute. The doctor did not specifically examine the applicant's psychological condition. In his report, the doctor noted that the applicant did not have any medical complaints and that no signs of physical injury were observed, except for an old scratch under the left shoulder.

On the same day the ÅžiÅŸli public prosecutor ordered the applicant's immediate release. However, the police did not release the applicant. For reasons which are unclear, the applicant was detained at the police station for two further days.

On the evening of 26 February 1997 the applicant was brought before a judge who ordered his release on the same day, namely six days and six hours after his apprehension in the shoe shop. The applicant had not been examined by a doctor since 24 February 1997.

On 25 March 1997 the applicant's lawyer lodged a complaint with the ÅžiÅŸli Public Prosecutor against a number of police officers involved in the apprehension of the applicant in the shoe-shop and his subsequent interrogation in police custody. The lawyer contended that the applicant was ill-treated at the time of his apprehension on 20 February 1997, subjected to inhuman treatment during interrogation at the ÅžiÅŸli Police Station and detained there for six and a half days before being brought before a judge.

On 30 June 1997 the ÅžiÅŸli Public Prosecutor rejected the applicant's request to bring charges against the police officers. According to the public prosecutor, there was no evidence in the file which supported the applicant's accusations. On 15 July 1997 the applicant's lawyer raised an objection to this decision before the President of the nearest Assize Court.

On 8 September 1997 the President of the BeyoÄŸlu Assize Court rejected the applicant's objection, finding that there were insufficient grounds on which to initiate a prosecution.

In the following months the applicant was charged before various criminal courts with the above mentioned twenty-five offences of robbery. The applicant was acquitted in a number of cases. He was found guilty and fined in four cases.

COMPLAINTS

The applicant complains under Article 3 of the Convention that he was beaten at the time of his apprehension and tortured at the ÅžiÅŸli Police Station. In this respect, he alleges that the police officers applied electric shocks to various parts of his body, beat his feet, prevented him from eating or sleeping, threatened him and misled him about the evidence against him. According to the applicant, the police officers used various techniques to conceal any physical signs of torture.

The applicant also complains under Article 5 § 3 of the Convention that he was held in custody for six days and six hours before being brought before a judge.

The applicant finally complains under Article 6 of the Convention that the criminal proceedings against him were unfair.

THE LAW

On 22 August 2003 the Court received the following declaration signed by the applicant's representative:

“I note that the Government of Turkey are prepared to pay me ex gratia the sum of EUR 16,500 (sixteen thousand five hundred euros) with a view to securing a friendly settlement of my application registered under no. 39675/98. This sum, which is to cover any pecuniary and non-pecuniary damage as well as legal costs and expenses connected with the case, shall be paid in euros, to be converted into Turkish liras at the rate applicable at the date of payment, to a bank account named by me and/or my duly authorised representative. The sum shall be payable, free of any taxes that may be applicable, within three months from the date of the [decision] ... by the Court pursuant to [Article 37] 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, until settlement, simple interest on the 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 of this application. I declare that this constitutes a final settlement of the case.

This declaration is made in the context of a friendly settlement which the Government and I have reached.”

On 5 March 2004 the Court received the following declaration from the Government:

“1. The Government regret the occurrence of individual cases of ill-treatment by the authorities of persons detained in custody notwithstanding existing Turkish legislation and the resolve of the Government to prevent such actions. It is accepted that the recourse to ill-treatment of detainees as well as the excessive length of custody constitute a violation of both Articles 3 and 5 of the Convention. The Government undertake to issue appropriate instructions and adopt all necessary measures to ensure that the prohibition of such acts and the obligation to carry out effective investigations are respected in the future. The Government refer in this connection to the commitments which they undertook in the Declaration agreed on in Application no. 34382/97 and reiterate their resolve to give effect to those commitments. They note that new legal and administrative measures have been adopted which have resulted in a reduction in the occurrence of ill-treatment in circumstances similar to those of the instant case as well as more effective investigations.

2. I declare that the Government of the Republic of Turkey offer to pay ex gratia to the applicant an all-inclusive amount of EUR 16,500 (sixteen thousand five hundred euros) with a view to securing a friendly settlement of his application registered under no. 39675/98. This sum, which also covers legal expenses connected with the case, shall be free of any tax that may be applicable and be paid in euros, to be converted into Turkish liras at the rate applicable at the date of payment, to a bank account named by the applicant and/or his duly authorised representative. This sum shall be payable within three months from the date of the notification of the decision delivered by the Court pursuant to [Article 37] of the European Convention on Human Rights. This payment will constitute the final settlement of the case. In the event of failure to pay this sum within the said three month period, the Government undertake to pay, until settlement, simple interest on the amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.”

The Court takes note of the agreement reached between the parties. It is satisfied that the settlement is based on respect for human rights as defined in the Convention or its Protocols and considers that there is no reason which would justify the continuation of the examination of the application (Article 37 § 1 in fine of the Convention and Rule 62 § 3 of the Rules of the Court).

For these reasons, the Court unanimously

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

Michael O'Boyle Nicolas Bratza Registrar President