THIRD SECTION

DECISION

Application no. 41307/98 by Hüseyin ÜLGER against Turkey

The European Court of Human Rights (Third Section), sitting on 7 March as a Chamber composed of

Mr G. Ress , President , Mr I. Cabral Barreto , Mr L. Caflisch , Mr R. Türmen , Mr B. Zupančič , Mrs H.S. Greve , Mr K. Traja , judges , and Mr V. Berger , Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 9 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 partial decision of 4 April 2000,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having regard to the formal declarations accepting a friendly settlement of the case submitted by the Government and the applicant on 19 December 2001 and 28 December 2001 respectively,

Having deliberated, decides as follows:

THE FACTS

The applicant,  Hüseyin Ülger, is a Turkish national, who was born in 1952 . He is currently held in prison in Bursa. He was represented before the Court by Mr Aydın Erdoğan, a lawyer practising in Ankara.

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

On 19 March 1995 the applicant was taken into custody by police officers from the Ankara Security Directorate on suspicion of membership of an illegal organisation, namely the TDP ( Türkiye Devrim Partisi - Revolution Party of Turkey).

On 27 March 1995 the applicant was interrogated by the police officers. During the interrogation the applicant admitted that he was a leading member of the TDP. He further signed a declaration containing the details of his illegal activities.

On 29 March 1995 the applicant was questioned by the Chief Public Prosecutor attached to the Ankara State Security Court. During the questioning the applicant denied the allegations against him. He alleged that the police officers took his statements under duress and that he signed the declaration without reading it.

On the same day the Ankara State Security Court ordered the applicant’s detention on remand.

In an indictment dated 28 April 1995 the public prosecutor at the Ankara State Security Court charged the applicant with membership of an illegal organisation. The prosecutor requested that the applicant be convicted and sentenced under Article 168 § 1 and 17 of the Turkish Criminal Code and Article 5 of Law 3713.

On 23 January 1996 the Ankara State Security Court convicted the applicant as charged and sentenced him to twelve years and six months’ imprisonment and debarred him from employment in public service. The applicant’s statements made in the police custody constituted one of the grounds of his conviction.

On 23 January 1996 the applicant lodged an appeal with the Court of Cassation submitting that his conviction was based on his statements made under duress during his police custody.

On an unspecified date the Chief Public Prosecutor filed his observations on the appeal with the Court of Cassation . These observations were not communicated to the applicant.

On 11 June 1997 the Court of Cassation upheld the above judgment .

On 31 July 1997 the Chief Public Prosecutor refused to grant a leave to the applicant to appeal for rectification of the Court of Cassation’s decision.

COMPLAINT

The applicant complained that he did not receive a fair hearing since he was tried by a tribunal which lacked independence and impartiality. He maintained that his statements taken under duress constituted the basis of his conviction, that he was not given legal assistance during his police custody and that the observations of the Chief Public Prosecutor at the Court of Cassation were not communicated to him. He invoked Article 6 §§ 1 and 3 of the Convention.

THE LAW

Following informal contacts between the applicant’s and the Government’s representatives, the Section Registrar was asked to assist the parties in reaching a solution to the matter. As a result, the Registrar addressed draft declarations to the parties.

The Court received the following declaration from the Government:

“I declare that the Government of Turkey offer to pay the amount of 10,000 French francs (FRF) to Mr Hüseyin Ülger in respect of application no. 41307/98 on an ex gratia basis for the withdrawal of his application pending before the Court. This sum (FRF 10,000) shall cover any pecuniary and non-pecuniary damage as well as costs, and it will be payable, free of any taxes that may be applicable, within three months after the notification of the decision taken by the Court pursuant to Article 37 §1 (a) and (c) of the European Convention on Human Rights. This payment will constitute the final resolution of this case.”

The Court received the following declaration from the applicant:

“I note that the Government of Turkey are prepared to pay, within three months after the notification of the decision taken by the Court pursuant to Article 37 §1 (a) and (c) of the European Convention on Human Rights, a total sum of 10,000 French francs in respect of application no. 41307/98 on an ex gratia basis, for the withdrawal of the  application pending before the Court.

I accept the proposal and withdraw my application, waiving any further claims in respect of Turkey relating to the facts of this application.”

The Court takes note of the applicant’s withdrawal of the application on the basis of the agreement reached between the parties (Article 37 § 1 (a) and (c) of the Convention and Rule 62 § 3 of the Rules of the Court). The Court considers that there is no reason which would justify the continuation of the examination of the application.

For these reasons, the Court unanimously

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

Vincent Berger Georg Ress Registrar President