SECOND SECTION

DECISION

Application no. 47659/99 by Fehmi KÜÇÜKASLAN and Sefagül KESKİN against Turkey

The European Court of Human Rights (Second Section) , sitting on 2 December 2003 as a Chamber composed of

Mr J.-P. Costa , President , Mr A.B. Baka , Mr Gaukur Jörundsson , Mr L. Loucaides , Mr R. Türmen , Mr C. Bîrsan , Mrs A. Mularoni, judges , and Mr T. L. Early , Deputy Section Registrar ,

Having regard to the above application lodged on 26 March 1999,

Having regard to the Court's partial decision of 11 March 2003 and its decision of the same date to apply Article 29 § 3 of the Convention to the subsequent proceedings,

Having regard to the formal declarations of acceptance of a friendly settlement of the case submitted by the Government and the applicants on 25 July and 23 September 2003 respectively,

Having deliberated, decides as follows:

THE FACTS

The applicants, Mr Fehmi Küçükaslan and Ms Sefagül Keskin, are Turkish nationals who were born in 1968 and 1977 respectively. Mr Küçükaslan is currently serving his prison sentence in Tekirdağ F Type Prison in Turkey. Ms Keskin lives in Ankara. They are represented before the Court by Ms Engül Çıtak, a lawyer practising in Ankara.

The facts of the case, as submitted by the applicants and as set out in the official documents they have submitted , may be summarised as follows.

The applicants were arrested at a house in Ordu at 9 p.m. on 21 November 1998 on suspicion of having planted a bomb. A search was conducted of the house. The applicants were found to be in possession of false identity cards.

According to the custody records the applicants were placed in police custody at 11.55 p.m.

On 22 November 1998 the deputy chief of the anti-terrorist department of the Ordu police asked the Ordu public prosecutor to authorise the applicants' detention in police custody for an appropriate period. On the same day the prosecutor authorised the applicants' detention for a period of three days.

On 27 November 1998 they were brought before the Second Chamber of the Criminal Court of Peace in Ordu. They denied the accusations against them and stated that they had nothing to add to the statements they had made to the prosecutor earlier that day.

On 25 December 1998 the chief public prosecutor of the State Security Court in Erzurum prepared an indictment accusing the applicants of membership of the outlawed organisation TKP-ML-TÄ°KKO (Turkish Communist Party/Marxist-Leninist) and of attempting to undermine the constitutional order, offences under Article 146 of the Criminal Code.

On 25 May 1999 and while the trial was in progress, Ms Keskin, the second applicant, was released on bail pending the outcome of the trial.

On 8 September 1999 the Erzurum State Security Court found the first applicant guilty of offences under Article 146 § 3 of the Criminal Code and sentenced him to six years and three months' imprisonment. The court acquitted the second applicant. The first applicant appealed.

On 21 February 2000 the Court of Cassation quashed the judgment convicting the first applicant. The decision to acquit the second applicant became final as no appeal had been filed against her acquittal.

A re-trial took place before the Erzurum State Security Court. On 27 June 2000 the first applicant was found guilty of an offence under Article 168 § 2 of the Criminal Code. He was sentenced to six years and three months' imprisonment. He appealed.

On 5 February 2001 the Court of Cassation rejected the first applicant's appeal and upheld the judgment of 27 June 2000.

COMPLAINT

Invoking Article 5 § 3 of the Convention, the applicants complain that they were not brought before a judge until 6 days after their arrest.

THE LAW

On 28 July 2003 the Court received the following declaration from the Government:

“I declare that the Government of the Republic of Turkey offer to pay ex gratia to the applicants an all-inclusive amount of EUR 4,500 (four thousand five hundred euros) with a view to securing a friendly settlement of their application registered under no. 47659/99. 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 applicants and/or their 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 § 1 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.”

On 30 September 2003 the Court received the following declaration signed by the applicants' representative:

“We note that the Government of Turkey are prepared to pay us ex gratia the sum of EUR 4,500 (four thousand five hundred euros) with a view to securing a friendly settlement of our application registered under no. 47659/99. 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 us. The sum shall be payable, free of any taxes that may be applicable, within three months from the date of the decision delivered 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, 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.

We accept the proposal and waive any further claims against Turkey in respect of the facts of this application. We 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 we have reached.”

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 (Article 37 § 1 in fine of the Convention).

It considers that in these circumstances 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 strike the application out of its list of cases.

T.L. Early J.-P. Costa              Deputy Registrar              President