THIRD SECTION

DECISION

Application no. 10770/02 
by Emin KOÇER 
against Turkey

The European Court of Human Rights (Third Section), sitting on 26 May 2005 as a Chamber composed of:

Mr B.M. Zupančič, President
 Mr J. Hedigan
 Mr R. Türmen
 Mr C. Bîrsan
 Ms R. Jaeger
 Mr E. Myjer, 
 Mr David Thór Björgvinsson, judges,

and Mr V. Berger, Section Registrar,

Having regard to the above application lodged on 31 January 2002,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together.

Having regard to the formal declarations accepting a friendly settlement of the case.

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Emin Koçer, is a Turkish national who was born in 1960 and lives in Ankara. He is represented before the Court by Mr M. Bektaş, a lawyer practising in Ankara.

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

The applicant was born in 1960 and lives in Ankara.

On 18 February 1982 the applicant was arrested by police officers on suspicion of his membership of an illegal organisation, the Dev-Yol (Revolutionary Way).

The Ankara Martial Law Court (sıkıyönetim mahkemesi) ordered the applicant's detention on remand on 7 and 9 April, and 15 June 1982.

On 26 February 1982 the Military Public Prosecutor filed a bill of indictment with the Ankara Martial Law Court against the applicant along with seven hundred and twenty-three other defendants. He accused the applicant of membership of the Dev-Yol, whose aim was to undermine the constitutional order and replace it with a Marxist-Leninist regime, contrary to Article 146 of the Criminal Code.

On 1 July 1988 he was released pending trial by the Ankara Martial Law Court and he remains at liberty.

On 19 July 1989 the Martial Law Court found the applicant guilty of membership of the Dev-Yol. The applicant was convicted under Article 146 § 3 of the Criminal Code and sentenced to fifteen years' imprisonment.

The applicant and the public prosecutor appealed to the Military Court of Cassation (askeri yargıtay).

Following promulgation of the Law of 26 December 1994, which abolished the jurisdiction of the martial law courts, the Court of Cassation (yargıtay) acquired jurisdiction over the case and the file was sent to it.

On 28 December 1996 the Court of Cassation quashed the judgment of the first instance court and remitted the case file to the Ankara Assize Court for retrial under Article 146 § 1 of the Criminal Code for which the only sentence is capital punishment.

The criminal proceedings are still pending before the Assize Court.

COMPLAINT

The applicant complained under Article 6 of the Convention that the criminal proceedings brought against him were not concluded within a reasonable time.

THE LAW

On 24 March 2005 the Court received the following declaration from the Government:

“I declare that the Government of Turkey offer to pay ex gratia 19,500 euros to Emin Koçer with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights.

This sum, which is to cover any non-pecuniary damage as well as costs and expenses connected with the case, shall be free of any tax that may be applicable and be paid in euros 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 notification of the Court's decision delivered 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 simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The payment will constitute the final resolution of the case. ”

On 15 March 2005 the Court received the following declaration signed by the representative of the applicant:

“In my capacity as the representative of the applicant, I note that the Government of Turkey are prepared to pay the applicant ex gratia the sum of 19,500 euros with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights. This sum is to cover any non-pecuniary damage as well as costs and expenses connected with the case, and will be payable within three months from the date of notification of the Court's decision delivered pursuant to Article 37 of the European Convention on Human Rights. From the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

Having duly consulted the applicant, 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 resolution of the case.

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

The Court takes note of the friendly settlement reached between the parties. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no public policy reasons to justify a continued examination of the application (Article 37 § 1 in fine of the Convention). Accordingly, Article 29 § 3 of the Convention should no longer apply to the case and it should be struck out of the list.

For these reasons, the Court unanimously

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

Vincent Berger Boštjan M. Zupančič 
 Registrar President

KOCER v. TURKEY DECISION


KOCER v. TURKEY DECISION