SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application No. 43887/98

by Ismail KOCKAYA

against Hungary

The European Court of Human Rights ( Second Section) sitting on 19 January 1999 as a Chamber composed of

Mr C. Rozakis, President ,

Mr M. Fischbach,

Mr G. Bonello,

Mrs V. Strážnická,

Mr P. Lorenzen,

Mr A.B. Baka,

Mr E. Levits, Judges ,

with Mr E. Fribergh, Section Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 7 October 1998 by Ismail KOCKAYA  against Hungary and registered on 13 October 1998 under file no. 43887/98;

Having regard to the report provided for in Rule 49 of the Rules of Court;

Having regard to the observations submitted by the respondent Government on 9 December 1998 and the observations in reply submitted by the applicant on 8 December 1998;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, born in 1960, is a Turkish national and resident in Budapest, Hungary. He is a businessman. Before the Court he is represented by Mr. S. Potocsny, a lawyer practising in Budapest.

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

On 24 November 1996 a man punched Mr Mesut Yilmaz on the nose in a hotel lobby in Budapest. Mr Yilmaz, who later became Prime Minister of Turkey, was on a visit to Hungary in his capacity of leader of the then main opposition Motherland Party.

On 9 December 1996 the Bakirköy High Criminal Court No. 3 issued a request for the applicant’s extradition. In the extradition request it was explained that, in the context of a vendetta, the applicant had instigated a Mr. Halil to murder a Mr. Kasim who had, back in 1993, wounded the applicant and killed his brother and that, on 31 March 1995, Mr. Halil had indeed shot Mr. Kasim to death in a court room. On 17 April 1995 the applicant was, upon that charge, "arrested in absentia ". The extradition request contained sections of the relevant Turkish laws from which it appears that the perpetrator as well as the instigator of a vendetta murder are punishable by death.

On 10 December 1996 the Ankara Criminal Court No. 10 issued a warrant of arrest in absentia against the applicant and two other men allegedly involved in the assault against Mr. Yilmaz.

By a note dated 17 December 1996, addressed to the Hungarian Ministry of Foreign Affairs, the Turkish Embassy in Budapest requested the extradition of the applicant and of a Mr. Özerdem and a Mr. Korkut. In the note it was explained that Mr. Özerdem was the man having punched Mr. Yilmaz on the nose on 24 November 1996 and that the applicant and Mr. Korkut had participated in the assault. Moreover, concerning the applicant himself, reference was made to the charge of instigation to a vendetta murder and to his trial in absentia before the Bakirköy High Criminal Court No. 3.

On 16 January 1997 the Budapest Regional Court (Fővárosi Bíróság) decided not to order Mr. Korkut’s detention with a view to his extradition. The Regional Court pointed out that the assault in question did not constitute an offence under the Hungarian Criminal Code and that the conditions for extradition were thus not met.

By submissions dated 6 February 1997 the applicant’s then lawyer intervened with the Hungarian Ministry of Justice concerning the applicant’s envisaged extradition. The lawyer explained that, although the murder in the context of which the applicant’s extradition was sought by the Turkish authorities had been committed on 31 March 1995 and that, at that time, the Turkish authorities had been aware of his whereabouts, his extradition had not been pursued until the assault against Mr. Yilmaz took place. The lawyer argued that the Turkish authorities sought the applicant’s extradition under the pretext of the charge of instigation to murder but with the intention to persecute him for his political beliefs and for his involvement in the assault against Mr. Yilmaz.

In a letter dated 3 April 1997 the Hungarian Ministry of Justice informed the Hungarian Ministry of Foreign Affairs that the offence alleged against the applicant, Mr. Korkut and Mr. Özerdem was not punishable under the Hungarian Criminal Code and that their extradition would be refused by the Minister of Justice. Concerning the charge of instigation to murder, brought against the applicant, it was pointed out that the applicant had not yet been apprehended. The Ministry of Foreign Affairs was requested to inform the Turkish Ministry of Foreign Affairs accordingly.

In an INTERPOL warrant of arrest, apparently dated April 1998 and issued by INTERPOL Ankara, the applicant was wanted for "incitement to murder" and for "conspiracy to commit murder", the latter denoting the assault committed against Mr. Yilmaz.

On 19 August 1998 the applicant was arrested by the Hungarian authorities.

On 22 August 1998 the Budapest Regional Court ordered the applicant’s provisional arrest with a view to his extradition. On 7 September 1998 the Budapest Public Prosecutor’s Office proposed that his detention with a view to extradition be ordered.

In a note dated 25 August 1998, addressed to the Hungarian Ministry of Foreign Affairs, the Turkish Embassy in Budapest referred to the request for the applicant’s extradition on charges of instigation to commit murder and of "conspiracy in the aggression against Mr. Yilmaz".

On 11 September 1998 the Budapest Regional Court held a hearing and ordered the applicant’s detention with a view to extradition. The Regional Court observed that the applicant’s extradition was requested for an offence punishable according to the Hungarian and to the Turkish Criminal Code and that the conditions for extradition (within the meaning of Act No. 38 of 1996 on International Criminal Law Co-operation and Act No. 18 of 1994 on the Promulgation of the European Extradition Treaty) were fulfilled. The Regional Court ruled that the Minister of Justice might approve the applicant’s extradition only on condition that Turkey would guarantee that an eventual death sentence imposed on the applicant would not be executed.

On 22 September 1998 the above decision became final.

On 4 December 1998 the Minister of Justice decided not to approve the applicant’s extradition. The Minister of Justice relied on the reservation made by Hungary in respect of Article 6 of the European Extradition Treaty according to which Hungary has reserved the right to deny the extradition of Hungarian citizens and of persons permanently resident in Hungary.

On 7 December 1998 the Budapest Regional Court terminated the applicant’s detention with a view to his extradition and ordered his release. The applicant was released on the same day.

COMPLAINTS

The applicant complained that the request for his extradition was politically motivated and that, if extradited to Turkey, he would be subjected to torture and inhuman treatment in breach of Article 3 of the Convention.

PROCEEDINGS

The application was introduced before the European Commission of Human Rights on 7 October 1998 and registered on 13 October 1998.

On 12 October 1998 the Acting President of the Commission decided to indicate to the respondent Government, in accordance with Rule 36 of the Commission’s Rules of Procedure, that it was desirable in the interests of the parties and the proper conduct of the proceedings before the Commission not to extradite the applicant to Turkey until the Commission would have an opportunity to examine the application during its forthcoming session.

On 30 October 1998 the Commission decided to prolong the indication under Rule 36 until further notice and to communicate the application to the respondent Government.

On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol.

On 8 and 9 December 1998, respectively, the applicant’s lawyer and the respondent Government submitted that the applicant’s detention with a view to extradition had been terminated, that he had been released and that the matter had thus been resolved. The Government requested that the application be struck out of the Court’s list of cases under Article 37 § 1 (b) of the Convention.

REASONS FOR THE DECISION

The Court considers that, in the light of the parties’ submissions dated 8 and 9 December 1998, the matter raised in the application has been resolved.

Moreover, the Court finds no reasons of a general character affecting the respect for human rights, as defined in the Convention, which require the further examination of the application by virtue of Article 37 § 1 in fine of the Convention.

For these reasons, the Court, unanimously,

DECIDES TO STRIKE THE APPLICATION OUT OF ITS LIST OF CASES.

Erik Fribergh Christos Rozakis

  Registrar     President