Information Note on the Court’s case-law No. 119

May 2009

Kavak v. Turkey - 34719/04

Decision 19.5.2009 [Section II]

Article 37

Article 37-1-c

Continued examination not justified

Friendly settlement compliant with human rights even though most appropriate remedy in principle would have been new trial or resumption of proceedings at applicant’s request: struck out of the list

The applicant was in prison serving a life sentence. After being arrested by security forces, he was taken into police custody. He was subsequently transferred to a different security police station. During the first police custody he was examined on two occasions without any signs of violence being detected on his body. Nor were any such signs found during a medical examination after his transfer. However, the applicant was examined again several days later in hospital. The report established that there were significant signs of injuries on his arms. In the doctor’s opinion, a final report would have to be established after a neurological examination of the applicant. On the same day the applicant was interviewed by the public prosecutor, to whom he stated that he had been ill-treated by the police while in police custody. He was subsequently brought before a judge of the State Security Court to whom he repeated his statement. The judge remanded him in custody. The applicant filed a complaint with the public prosecutor against the officers responsible for his police custody, alleging that he had been ill-treated. The forensic medical institute draw up a report in which a panel of six doctors concluded, after examining him, that the injuries observed on his body could indicate that he had been subjected, as he alleged, to Palestinian hanging. The public prosecutor committed the two police officers to stand trial before the Assize Court and called for their conviction for acts of torture committed with a view to obtaining a confession. The officers were acquitted for insufficient evidence. The Court of Cassation quashed the trial-court judgment and declared the prosecution time-barred. In parallel the public prosecutor at the State Security Court brought criminal proceedings against the applicant for attempts to commit acts that were capable of jeopardising the indivisibility of national territory. The State Security Court found him guilty and sentenced him to death. Following a legislative amendment, his sentence was commuted to life imprisonment. The Court of Cassation upheld the trial court’s judgment.

Struck out : The parties had reached a friendly settlement. It was therefore appropriate to put an end to the contentious proceedings. The Court thus started by examining the letters submitted by the parties in the context of their negotiation of a friendly settlement. Taking note of that settlement, the Court observed that neither the Convention nor the Rules of Court imposed any particular form as to the terms of a friendly settlement. It was sufficient for the Court to be persuaded that the settlement between the parties had been consistent with respect for human rights as defined in the Convention and the protocols thereto. In that connection, the present case mainly concerned ill-treatment, within the meaning of Article 3 of the Convention, that had allegedly been inflicted on the applicant during his police custody, and the fairness of the proceedings under Article 6 of the Convention on account of the use of evidence obtained in conditions allegedly in breach of Article 3. The Court observed that it had already had occasion, in a considerable number of cases, to set out the extent of Contracting States’ obligations in these areas. In view of the importance of the rights at stake and the seriousness of the facts, the Court deemed it necessary to point out that when it had found a violation of those provisions it had always declared that the most appropriate form of redress, provided that the applicant so requested, would be to hold a new trial in accordance with the requirements of Article 6 § 1. In the present case the Court considered that a re-trial or the re-opening of the proceedings, at the applicant’s request, represented in principle an appropriate means of redress for the situation complained of. However, having regard to the foregoing, and in particular to the clear and substantial case-law on the question raised in the case, no particular circumstance affecting respect for human rights as defined in the Convention or the protocols thereto required the Court to continue its examination of the application. Lastly, the Court pointed out that, in accordance with Article 46 § 2 of the Convention, the Committee of Ministers had the power to supervise the execution only of final judgments. However, in the event that the Government did not comply with the terms of its undertakings as described in the present decision within three months after its notification, it remained possible for the application to be restored to the Court’s list of cases in accordance with Article 37 § 2 of the Convention.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

Click here for the Case-Law Information Notes