Ministers’ Deputies
Decisions

CM/Del/Dec(2007)987 28 February 2007
Volume – RESOLUTIONS
———————————————

987th meeting (DH), 13-14 February 2007

Resolutions adopted

CONTENTS Page

Resolution ResDH(2007)1 5
Execution of the judgment of the European Court of Human Rights Öcalan against Turkey 5

Interim Resolution ResDH(2007)2
concerning the problem of excessive length of judicial proceedings in Italy
10

Interim Resolution ResDH(2007)3
Systemic violations of the right to the peaceful enjoyment of possessions through “indirect expropriation”
by Italy
12

Interim Resolution ResDH(2007)4
Execution of the judgment of the European Court of Human Rights in the case of Ahmet Okyay
and others against Turkey
16

Resolution ResDH(2007)5
concerning the judgment of the European Court of Human Rights of 18 February 1999
in the case of Larkos against Cyprus
18

Resolution ResDH(2007)6
Execution of the judgment of the European Court of Human Rights Sørensen and Rasmussen
against Denmark
20

Resolution ResDH(2007)7
Execution of the judgment of the European Court of Human Rights Epple against Germany 22

Resolution ResDH(2007)8
concerning the judgments of the European Court of Human Rights between 29 April 1999
and 9 January 2003 in the cases of Sabeur Ben Ali, Aquilina, T.W. and Kadem against Malta
(see Appendix)
24

Resolution ResDH(2007)9
Execution of the judgment of the European Court of Human Rights Calleja against Malta 26

Resolution ResDH(2007)10
Execution of the judgment of the European Court of Human Rights Krumpel and Krumpelová
against the Slovak Republic
28

Resolution ResDH(2007)11
Execution of the judgment of the European Court of Human Rights Munari against Switzerland 31

Final Resolution ResDH(2007)12
Human Rights Application No. 27613/95 P.B. against Switzerland
33

Resolution ResDH(2007)13
Execution of the judgment of the European Court of Human Rights Ukrainian Media Group
against Ukraine
34

Resolution ResDH(2007)14
Execution of the judgment of the European Court of Human Rights Bowman against United Kingdom 37

Resolution ResDH(2007)15
Execution of the judgment of the European Court of Human Rights Halford against United Kingdom 40

Final Resolution ResDH(2007)16
Human Rights Application No. 25658/94 Aslantaş against Turkey
43

Resolution ResDH(2007)17
Execution of the judgments of the European Court of Human Rights in 13 cases (see Appendix)
concerning the administration’s delay in payment of additional compensation for expropriation
against Turkey
45

Resolution ResDH(2007)18
Execution of the judgment of the European Court of Human Rights Mocanu against Romania 47

Resolution ResDH(2007)19
Execution of the judgment of the European Court of Human Rights Çalışlar against Turkey 48

Resolution ResDH(2007)20
concerning the judgments of the European Court of Human Rights delivered between 11 July 2002
and 2 October 2003 (Friendly settlements) in 6 cases against Turkey (see Appendix)
relating to freedom of expression
50

Resolution ResDH(2007)21
Execution of the judgment of the European Court of Human Rights Özkan Kiliç against Turkey 53

Resolution ResDH(2007)22
Execution of the judgment of the European Court of Human Rights Yalçin Kuçuk (No. 2) against Turkey 55

Resolution ResDH(2007)23
Execution of the judgment of the European Court of Human Rights Kamil T. Sürek gainst Turkey 57

Resolution ResDH(2007)24
Execution of the judgment of the European Court of Human Rights Ahmet Turan Demir against Turkey 59

Section 1.1

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution ResDH(2007)11

Execution of the judgment of the European Court of Human Rights
Öcalan against Turkey

(Application No. 46221/99, Grand Chamber judgment of 12 May 2005, final on 12 May 2005)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter referred to as “the Convention” and “the Court”);

Having regard to the final Grand Chamber judgment in this case, transmitted by the Court to the Committee on 12 May 2005;

Recalling that the violations of the Convention found by the Court in this case concern several shortcomings in the criminal proceedings against the applicant, a Turkish national charged with terrorist offences and sentenced to death by the Ankara State Security Court in June 1999 (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the measures taken in order to comply with Turkey’s obligation under Article 46, paragraph 1, of the Convention to abide by the judgment;

Having examined the information and observations submitted by the Government and by the applicant under the Committee’s Rules for the supervision of the execution of judgments and of the terms of friendly settlements (see details in the Appendix);

Having satisfied itself that the respondent state paid the applicant the just satisfaction provided in the judgment;

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgment, the adoption by the respondent state, where appropriate, of

      - individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and

      - general measures preventing, similar violations;

Recalling that in this case the question of individual measures was addressed already in the European Court’s judgment which underlined that “in cases where an individual had been convicted by a court which did not meet the Convention requirements of independence and impartiality a retrial or a reopening of the case, if requested, represents in principle an appropriate way of redressing the violation. However, the specific remedial measures, if any, required of a respondent State in order to discharge its obligations under Article 46 had to depend on the particular circumstances of the individual case and be determined in the light of the terms of the Court’s judgment in that case, and with due regard to the […] case-law of the Court” (see §210 of the Grand Chamber judgment in this case);

Recalling further the constant practice of the Committee of Ministers and of contracting states in the execution of judgments by the Court, as restated e.g. in the Committee’s Recommendation Rec(2000)2 on the re-examination or reopening of certain cases at domestic level following judgments of the European Court of Human Rights and in the explanatory memorandum thereto and in many resolutions adopted in the course of the Committee’s execution supervision;

Considering in particular that an initial judicial examination of the need for a re-trial in order to remedy the violations established may be necessary in order to take into account the particular circumstances of each case, and that such an initial examination does not have to meet all the requirements of Article 6 of the Convention;

Considering furthermore:

      - that the applicant requested the reopening of the domestic proceedings impugned by the Court;
      - that the competent Turkish court examined the merits of the request, and thus refused, in the light of Article 90 of the Constitution and Turkey’s obligations under Article 46 of the Convention, to apply the temporal limitations contained in Article 311/2 of the Turkish Code of Criminal Procedure to this case;
      - that the competent court concluded, when assessing whether or not a full re-trial was required to remedy the violations established by the Court, that this was not the case as neither the new submissions made on behalf of the applicant by his lawyers nor a full re-examination of the case file cast any serious doubts on the reliability of the impugned conviction;

Considering also that the applicant’s death sentence has been commuted to life imprisonment;

Having examined the observations submitted by the applicant and the government with regard to the above- mentioned proceedings;

Concluding that the re-examination procedure above is in conformity with Turkey’s obligations under Article 46 as far as individual measures are concerned;

Taking note, in this context, of the information provided by the applicant’s lawyers that they have lodged an application with the European Court concerning the above-mentioned domestic proceedings for a re-examination of the applicant’s case, but recalling that the Committee of Ministers’ decision under Article 46, paragraph 2, in no way prejudges the Court’s examination of the new complaints;

Considering as regards the general measures which the respondent state has been called to adopt without delay to prevent new, similar violations of the Conventions, that such measures were adopted as described in part II of the Appendix to this resolution;

      DECLARES that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and DECIDES to close its examination.

Appendix to Resolution ResDH(2007)1

Information and observations about the measures to comply with the judgment in the case of Öcalan against Turkey

      Case summary

The case concerns several shortcomings in the criminal proceedings against the applicant, a Turkish national charged with terrorist offences and sentenced to death by the Ankara State Security Court in June 1999. The judgment was in every respect upheld by the Court of Cassation in November 1999. Following the legislative reform abolishing the death penalty in peacetime, the State Security Court in October 2002 commuted the applicant’s death sentence to life imprisonment.

With regard to the applicant’s pre-trial detention, the European Court found that he was not brought promptly before a judge following his arrest in February 1999, as he had spent a minimum of seven days in police custody beforehand (violation of Article 5§3) and that there was no effective remedy by which he could have had the lawfulness of his continued detention in police custody decided promptly by a court (violation of Article 5§4). In this context the European Court observed that under the circumstances of the case (the applicant being kept in total isolation, possessing no legal knowledge and accused of serious charges), Article 128 § 4 of the Turkish Code of Criminal Procedure as amended in November 1992 (which entitled suspects to apply for habeas corpus to the district judge), could not be regarded as an effective remedy since the applicant had not been able to make use of it (violation of Article 6§1).

Concerning the trial, the European Court found a lack of independence and impartiality of the State Security Court in view of the presence of a military judge (replaced in June 1999) during part of the proceedings (violation of Article 6§1).

Furthermore, the European Court held that the trial had been unfair (violation of Article 6§1 together with Article 6§3(b) and (c)) due to:

      - the inadequate time and facilities for preparation of the defence;
      - the restrictions on legal assistance, the applicant having been denied access to a lawyer while in police custody;
      - the fact that he could not consult his lawyers out of the hearing third parties;
      - the fact that he was restricted to two one-hour visits with his lawyers per week;
      - the fact that he did not have access to the case file of 17,000 pages until two weeks before trial.

Finally, the European Court held that to sentence to death a person who had not had a fair trial amounted to inhuman treatment (Article 3).

      I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Costs and expenses

Total

Paid on

120 000 €

120 000 €

19/08/2005
Plus 138 € default interest

b) Individual measures – the question of retrial

- The applicant’s request for a retrial

A formal request for a retrial was lodged on 2 February 2006.

On 5 May 2006, the Ankara 11th Assize Court rejected the request, relying on Article 311/2 of the Turkish Code of Criminal Procedure (CCP), which excludes the possibility of retrial on the basis of European Court judgments rendered during the period when the present judgment was rendered.

The applicant filed an objection to this decision on 29 May 2006 and the case was referred to the Istanbul 14th Assize Court (in accordance with Article 268 CCP). Final judgment was rendered on 21 July 2006. The 14th Assize Court did not find the reliance at first instance on Article 311/2 CCP a sufficient ground for rejecting the request. Stressing the binding nature of the European Court’s judgment and Turkey’s international obligations under the European Convention on Human Rights, as enshrined in Article 46 of the Convention and acknowledged in the new Article 90 of the Turkish Constitution, the court decided to examine the merits of the applicant’s request. The court considered the arguments put forward by the applicant’s lawyers in their submissions to it and the contents of the case file as a whole and reached the conclusion that it was not necessary to carry out any additional investigations or further hearings. Having considered the nature of the crime and the evidence in the case file (including the applicant’s confessions) and having concluded that the violations established by the European Court could not change the applicant’s conviction and that his submissions before it were unsubstantiated, the 14th Assize Court dismissed the request as devoid of merit.

- The applicant’s position regarding the execution of the European Court’s judgment in the light of the rejection of his request for a retrial

In their submissions dated 30 September 2005, 22 February 2006, 10 April 2006, 2 October 2006 and 29 January 2007, the applicant’s lawyers in particular asked for:

a) the judgment of the European Court to be executed;
b) the provision excluding a request for a retrial for applicants falling into a certain time period - Article 311/2 of Act no. 5271- to be removed;
c) the legal provisions of Article 151 of Act No. 5271 and Article 59 of Act No. 5275 which restrict defence rights to be removed;
d) the non-acceptance as individual measure of the decision taken on their request for a retrial as in particular it::
- did not respect the requirements of the Court’s judgment in the case;
- was beyond the authority and jurisdiction of the court in question;

      - was not adopted after proceedings respecting the applicant’s defence rights so that once again the applicant was unable to present the arguments which he had been denied, in violation of the Convention, to present at the original impugned trial;
      - had not been independent;

e) an end to any special prison conditions for their client.

The government’s position on the above issues is reflected below under Section III.

      II. General measures

1) Failure to bring the applicant promptly before a judge after his arrest (Article 5§3): legislative reform commenced in 2001, see case of Sakık and others against Turkey (Final Resolution DH (2002)110). Article 91 of the Turkish Code of Criminal Procedure, in force since 01/06/2005, today provides for a right of detainees to see a judge within 24 hours in regular cases and 3 days in exceptional cases, the decision to extend to be taken by the prosecutor and open to an appeal to the court.

2) Lack of a remedy by which the applicant might have the lawfulness of his continued detention in police custody decided promptly by a court (Article 5§4): § 91 of the Turkish Code of Criminal Procedure as of 1/06/2005 now provides for a sufficient remedy, which extends the safeguards previously existing in Turkish law (see aforementioned final resolution in the case of Sakık).

3) Independence and impartiality of state security courts: the presence of military judges was abolished in 1999, see Çıraklar against Turkey (Final Resolution DH99(555)). Subsequently, state security courts were abolished following the constitutional amendments of May 2004.

4) Unfairness of the trial due to inadequate time and facilities for preparation of defence and restriction on legal assistance (Article 6§1 together with Article 6§3(b) and (c): Shortly before the 960th meeting (March 2006), the respondent state provided information on the new Code of Criminal Procedure, in force since 1/06/2005. This legislation introduced new provisions to guarantee defence rights, providing in particular for a defence lawyer to be assigned automatically in cases with a minimum sentence of 5 years (Article 150 (3)); giving the lawyer access to the case-file (including the right to make copies) from the date the indictment is accepted by the court (Article 153 (4)); and providing that the suspect or the accused may meet with the defence lawyers at any time and in such circumstances that they will not be heard by others, without requiring a power of attorney, and that correspondence between the defence lawyer and the suspect or accused may not be monitored (Article 154).

5) Imposition of the death penalty following an unfair trial, amounting to inhuman treatment (Article 3), Law No. 4771 of 09 August 2002 abolished the death penalty in peacetime.
At the 940th meeting, the Turkish authorities informed the Committee of Ministers that the judgment of the European Court had been translated and published on the web site of the Ministry of Justice and that it will also be published in the Bulletin of the Ministry of Justice.

      III. The government’s position

The government considered that the above measures have provided adequate individual redress to the applicant and stressed more particularly in its observations of 4 February 2007:

      - that the domestic court had refused to apply the temporal limitations in Article 311/2 and had examined the need of a re-trial on the basis of a full re-examination of the case file in the light of the applicant’s new submissions before it;
      - that the domestic court had acted within its competence;
      - that the proceedings had respected the rights of the defence;
      - that the domestic court had acted in full independence.

Moreover, the government considered that the applicant’s complaints regarding his present prison conditions were unrelated to the execution of the present judgment.

The government also considered that the general measures adopted would prevent new similar violations of the Convention. The government in particular underlined the importance of the direct effect given to the Convention and the Court’s case law under the new Article 90 of the Turkish Constitution. The government expressed its conviction that this direct effect would ensure that the new legislation will continuously be applied in conformity with the Convention’s requirements.

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Interim Resolution ResDH(2007)2
concerning the problem of excessive length of judicial proceedings in Italy

(Adopted by the Committee of Ministers on 14 February 2007,
at the 987th meeting of the Ministers’ Deputies)

The Committee of Ministers, under the terms of former Articles 32 and 54 and present Article 46, paragraph 2, of the Convention for the protection of Human Rights and Fundamental Freedoms (“the Convention”),

Considering the large number of judgments of the European Court of Human Rights (“the Court”) and decisions of the Committee of Ministers since the early 1980s finding structural problems underlying the excessive length of civil, criminal and administrative proceedings in Italy;

Recalling the major reforms undertaken in respect of civil and criminal proceedings as well as proceedings before courts of audit which led the Committee to close its examination of these aspect of the problem in the 1990s (see Resolutions DH(1992)26, (1995)82 and (1994)26);

Recalling that given the subsequent, continued influx of new findings of violations the Committee resumed its examination of these proceedings;

Recalling that the Committee decided to keep these cases on its agenda until such time as effective reforms were implemented and the reversal of the national tendency was definitely confirmed (Interim Resolution DH(2000)135);

Taking note of the numerous efforts made by the Italian authorities by the adoption of various general reforms and different specific measures which, nonetheless, have not led to satisfactory results to date.

Recalling that the dysfunction of the working of justice remains and in so doing represents an important danger, not least to the Rule of Law;

Welcoming the establishment in 2001 (Law No. 89) of a domestic remedy to compensate victims and reduce the pressure on the Court, and furthermore acknowledging the efforts of the Court of Cassation to ensure an interpretation in line with the Court’s case-law;

Noting also the constant increase in the amounts paid in compensation by the state in this respect;

Recalling that in these circumstances the Committee, in December 2005, demanded in its last Interim Resolution, ResDH(2005)114, the establishment of a new strategy, relying in particular on a reinforcement of political support, at the highest level, for an interdisciplinary approach to which all the main actors of the judicial system would contribute;

Welcoming the various declarations and speeches made during 2006 by the President of the Republic, the Head of the Government and the Minister of Justice indicating the authorities’ full awareness of the seriousness of the problem and their determination to give it priority;

Welcoming also Parliament’s approval of Law No. 12 of 9 January 2006 assigning competence to the Presidency of the Council of Ministers to co-ordinate the execution of the Court’s judgments and to keep Parliament regularly informed of progress achieved;

Noting that in its most recent report to the Committee of Ministers in November 2006 (CM/Inf/DH(2007)9), the Italian government mentioned a number of proposed legislative reforms to judicial proceedings together with an ambitious project for the computerisation of civil proceedings (processo telematico);

Considering nonetheless that these new measures only address certain aspects of the complex problem of the length of proceedings in Italy, which still needs a complete, in-depth analysis for an overall strategy to be presented;

Noting that in September 2006 a ministerial commission was set up, mandated to submit proposals to reduce the delays in proceedings;

Stressing the importance of organising effective follow-up and co-ordination, at the highest national level, of the action need to ensure the execution of the judgments and decisions concerned and noting in this context the possibilities offered by Law No. 12 of 9 January 2006;

Welcoming the Italian authorities’ expressed intention to co-operate regularly and closely with the Secretariat of the Council of Europe so that the Committee of Ministers may be kept informed of their thinking in relation to the strategy to be implemented and progress achieved;

Recalling in this context the rich comparative experience accumulated, not least in the framework of the supervision of the execution of the Court’s judgments, concerning various means of resolving the problem of excessive length of judicial proceedings;

Convinced that this co-operation and reflection should fully involve the main actors of the Italian judicial system,

URGES the Italian authorities at the highest level to hold to their political commitment to resolving the problem of the excessive length of judicial proceedings;

INVITES the authorities to undertake interdisciplinary action, involving the main judicial actors, co-ordinated at the highest political level, with a view to drawing up a new, effective strategy;

DECIDES to resume consideration of the progress achieved at the latest before 1 November 2008 and asks the Italian authorities and the Secretariat to keep the Committee informed of the progress made in setting up the new national strategy in this respect.

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Interim Resolution ResDH(2007)3
Systemic violations of the right to the peaceful enjoyment of possessions
through “indirect expropriation” by Italy

(adopted by the Committee of Ministers on 14 February 2007
at the 987th meeting of the Ministers’ Deputies)

The Committee of Ministers, under the terms of Article 46, paragraph 2 of the Convention for the protection of Human Rights and Fundamental Freedoms (“the Convention”),

Considering the judgments of the European Court of Human Rights (“the Court”) finding violations of Article 1 of Protocol No. 1 to the Convention by Italy on account of the resort to what is known as “indirect expropriation”, a practice characterised by:

    - emergency occupation of land by local administrative authorities pursuant to Law No. 85 of 1971, without any formal expropriation procedure, the occupation subsequently becoming irrevocable on account of the transformation of the property by the realisation of public works;
    - the lack of clear and predictable rules covering the transfer of property and compensation;
    - the absence of adequate mechanisms to afford redress, including the inadequacy of compensation awarded;

Recalling that the Committee of Ministers has been examining the problems at the origin of these violations and the means of solving them since 2000 in the framework of the execution of two judgments against Italy, namely the cases of Belvedere Alberghiera and Carbonara and Ventura, as well as many similar subsequent judgments (see appendix II);

Recalling the declarations by the Committee of Ministers as well as the Warsaw Summit underlining the importance of executing the Court’s judgments promptly, which is particularly necessary in cases like these which reveal structural problems and thus give rise to an influx of new applications before the Court;

Stressing states’ obligation under Article 46, paragraph 1, of the Convention to comply with the Court’s judgments by adopting individual measures to erase as far as possible the consequences of violations for the applicants (estitution in integrum) as well general measures to put an end to any ongoing situation and avoid new, similar violations;

Having noted with interest that following the initial judgments related to this problem Italy adopted, through Presidential Decree No. 327 of 8 June 2001, a general “Consolidated Text” on expropriation, Article 43 of which authorised public authorities to issue formal deeds of expropriation which are valid for the future but also acknowledge the unlawfulness of such acquisitions in the past;

Noting in this respect that in the government’s view (see Appendix I) the new procedure will constitute a break with the practice of indirect expropriation and will rule out any undue interference by the administration with property rights as recognised by the Convention, provided it is correctly and consistently implemented.

Underlining that the Court noted contradictory applications found in past case-law as well as contradictions between case-law and statute law, including the Consolidated Text (see judgment in the case of Prenna and Others of 9 February 2006, paragraphs 40-43, 65);

Supporting the government’s firm intention to do everything in its power to bring procedures in this area into complete conformity with the obligations flowing from the Convention and the Court’s judgments (see appendix I);

Welcoming the recent case-law of the Italian Council of State (Decision No. 2 of 2005) which contains some provisions needed to sanction unlawful action by administrative authorities and secure the return of property to its owner irrespective of any transformation carried out;

Being of the opinion that this case-law must be followed by the Italian judiciary and further developed in order to overcome the remaining points of uncertainty inherent in Article 43 of the “Consolidated Text”;

Welcoming generally the increasing efforts made by the senior Italian Courts to give direct effect to the Court’s judgments and the government’s will to have this direct effect consolidated and strengthened at every level of the Italian judicial and administrative systems;

Convinced that the measures taken or to be taken in national law must result in adequate and effective redress which complies with the requirements of the Convention as embodied in the Court’s case-law;

Considering that redress mechanisms must also, to the fullest possible extent, allow victims of violations already found by the European Court to be fully compensated, given that the Court has systematically reserved the question of just satisfaction, leaving it initially to the Italian authorities to provide such reparation;

Noting with satisfaction the new law which aims to discourage resort to indirect expropriation by providing a right to oblige responsible administrations to cover the cost of reparation due following the finding of a violation by the European Court (Article 1, paragraph 1217, of Law No. 296 of 2006);

Being of the view that this law will further contribute to preventing public authorities from benefiting from their own unlawful acts,

ENCOURAGES the Italian authorities to continue their efforts and rapidly take all further measures needed to bring an end definitively to the practice of “indirect expropriation” and to ensure that any occupation of land by the public authority complies with the requirement of legality as required by the Convention;

INVITES the authorities to ensure that redress mechanisms are rapid, efficient and able to the fullest possible extent of discharging the Court of its function under Article 41 of the Convention;

DECIDES to continue supervision of the measures required by the Court’s judgments and to resume consideration of the cases at issue in the light of the progress achieved, at the latest at their second human rights meeting in 2008.

Appendix I

Information provided by the Italian government to the Committee of Ministers in the context of the supervision of judgements of the Court concerning indirect expropriation in Italy

Through Presidential Decree No. 327 of 8 June 2001 (modified in 2002 and in force since 30 June 2003), introducing a general Consolidated Text on expropriation, Italy has improved the procedures for expropriation in the pubic interest.

Article 2 of this Consolidated Text provides that each expropriation must be carried out according to law; Articles 20 et seq require that expropriation proceedings are based on respect for the rules in force.

Thus, in general and besides exceptional, urgent public works, authorities may no longer occupy property unless or until they own it.

Article 43 authorises the public authority to issue “deeds of expropriation”, valid ex nunc. Such deeds do not regularise past illegalities, but rather define the situation with reference to the future, guaranteeing a just balance between the public interest (which must be particularly important and is subject to the strict supervision of a magistrate) and that of the individual, who is entitled to receive, within a reasonable time and in addition to reimbursement of the market value of the property, overall damages in respect of the prejudice sustained up until the date of issue of the deed.

The travaux préparatoires of the Consolidated Text explicitly show that the aim of this article is to rule out indirect expropriation so as to give full effect to the relevant judgments rendered by the European Court of Human Rights since 2000.

The recent provisions and decisions have not yet been examined in depth by the European Court which has so far gone no further than declaring that indirect expropriation should not be regarded as a valid alternative to a proper expropriation procedure, referring in doing so to the parallel declaration by the Council of State contained in the decision mentioned above (see the Prenna judgment, §§43-66).

The prime competence for ensuring respect of Article 43 lies with the magistrates of administrative tribunals, one of whose institutional roles is to protect the interests of individuals against illicit acts by public authorities (see decision No. 191 of 2006 of the Constitutional Court).

The higher administrative courts in Italy, which are competent for disputes concerning the application of Article 43, have already interpreted the article in the light of the requirements of the Convention as they flow from the European Court’s judgments (Council of State, Plenary Assembly, decision No. 2 of 2005; Sicilian Regional Council of Administrative Justice, decisions Nos. 934 of 2005 and 440 and 442 of 2006).

In the government’s view, the procedure provided by Article 43 might fulfil the requirements of the Convention provided that it is interpreted along the following lines:

1. The application and interpretation of Article 43 must be clear, consistent and predictable so as to embody the relevant discretionary powers of the state and thus satisfy the Convention’s requirement relating to the quality of the law;
2. The procedure provided by Article 43 is not an alternative to the ordinary procedure provided for expropriation and thus is not generally applicable: on the contrary it is an exceptional measure to be used only in case of demonstrably urgent public interest;
3. Formal acquisition must be established promptly and only by the relevant public administrative authority;
4. If no acquisition is thus established, under Article 43, the property must be promptly restored;
5. Under no circumstance may acquisition of property be considered automatic on the grounds that public works or other transformations have been carried out;
6. The procedure must, as far as possible, be applied to all cases of illicit occupation even if this came about before the entry into force of the Consolidated Text.

The government is encouraging all national authorities to apply the Consolidated Text in this way so as to comply with its obligations under the Convention and the Court’s judgments, i.e., to redress the violations committed and to prevent further similar violations. The government considers that the direct effect recently given to the Court’s judgments by the higher Italian courts in various fields of jurisdiction establishes the conditions needed in order to satisfy the Convention’s requirements through application of the Consolidated Text. The government encourages and supports the broadest possible extension of the direct effect of the Court’s judgments in Italian law.

Beyond the Consolidated Text, another significant measure has been taken to discourage public authorities from having recourse to indirect expropriation: Law No. 296 of 2006 (Article 1, paragraph 1217) provides that damages awarded to individuals in respect of illegal occupation of land are covered by the budget of the public authority responsible. The law also provides the possibility for the public authority concerned to sue the individual official at the origin of the illegal act. The government takes the view that that this measure will not fail to contribute to preventing violations similar to those found in the cases at issue.

Appendix II – List of cases

31524/96 Belvedere Alberghiera S.R.L., judgment of 30/05/00, final on 30/08/00 and of 30/10/03 final on 30/01/04
41040/98 Acciardi and Campagna, judgment of 19/05/2005, final on 12/10/2005
71603/01 Binotti, judgment of 13/10/2005, final on 13/01/2006
63632/00 Binotti, judgment of 17/11/2005, final on 17/02/2006
20236/02 Capone, judgment of 06/12/2005, final on 06/03/2006

62592/00 Capone, judgment of 15/07/2005, final on 30/11/2005
24638/94 Carbonara and Ventura, judgment of 30/05/00 and judgment of 11/12/03
63861/00 Carletta, judgment of 15/07/2005, final on 30/11/2005
63620/00 Chiro’ and 3 others No. 1, judgment of 11/10/2005, final on 11/01/2006
65137/01 Chiro’ and 3 others No. 2, judgment of 11/10/2005, final on 11/01/2006
67196/01 Chiro’ and 3 others No. 4, judgment of 11/10/2005, final on 11/01/2006
67197/01 Chiro’ and 3 others No. 5, judgment of 11/10/2005, final on 11/01/2006
65272/01 Chiro’ Dora No. 3, judgment of 11/10/2005, final on 11/01/2006
63296/00 Colacrai No. 1, judgment of 13/10/2005, final on 13/01/2006
63868/00 Colacrai No. 2, judgment of 15/07/2005, final on 30/11/2005
63633/00 Colazzo, judgment of 13/10/2005, final on 13/01/2006
71175/01 De Pasquale, judgment of 13/10/2005, final on 13/01/2006
176/04 De Sciscio, judgment of 20/04/2006, final on 20/07/2006
44897/98 Di Cola, judgment of 15/12/2005, final on 15/03/2006
64111/00 Dominici, judgment of 15/11/2005, final on 15/02/2006
63242/00 Donati, judgment of 15/07/2005, final on 30/11/2005
19734/92 F.S. No. 1, Interim Resolution DH(98)209 of 10/07/98
63864/00 Fiore, judgment of 13/10/2005, final on 13/01/2006
9119/03 Genovese, judgment of 02/02/2006, final on 03/07/2006
16041/02 Giacobbe and others, judgment of 15/12/2005, final on 15/03/2006
35941/03 Gianni and others, judgment of 30/03/2006, final on 30/06/2006
60124/00 Gravina, judgment of 15/11/2005, final on 15/02/2006
18791/03 Grossi and others, judgment of 06/07/2006, final on 06/10/2006
58858/00 Guiso-Gallisay, judgment of 08/12/2005, final on 08/03/2006
35638/03 Immobiliare Cerro S.a.s., judgment of 23/02/2006, final on 23/05/2006
62876/00 Istituto Diocesano Per Il Sostentamento Del Clero, judgment of 17/11/2005, final on 17/02/2006
20935/03 Izzo, judgment of 02/03/2006, final on 02/06/2006
63240/00 La Rosa and 3 others No. 6, judgment of 15/07/2005, final on 30/11/2005
58119/00 La Rosa and Alba No. 1, judgment of 11/10/2005, final on 11/01/2006
58386/00 La Rosa and Alba No. 3, judgment of 15/11/2005, final on 15/02/2006
63238/00 La Rosa and Alba No. 4, judgment of 13/10/2005, final on 13/01/2006
63239/00 La Rosa and Alba No. 5, judgment of 11/07/2006, final on 11/10/2006
63241/00 La Rosa and Alba No. 7, judgment of 17/11/2005, final on 17/02/2006
63285/00 La Rosa and Alba No. 8, judgment of 15/07/2005, final on 15/10/2005
56578/00 Lanteri, judgment of 15/11/2005, final on 15/02/2006
12912/04 Lo Bue and others, judgment of 13/07/2006, final on 13/10/2006
61211/00 Maselli No. 2, judgment of 11/07/2006, final on 11/10/2006
63866/00 Maselli, judgment of 13/10/2005, final on 13/01/2006
43663/98 Mason and others, judgment of 17/05/2005, final on 12/10/2005
36818/97 Pasculli, judgment of 17/05/2005, final on 12/10/2005
69907/01 Prenna and others, judgment of 09/02/2006, final on 09/05/2006
14793/02 Sciarotta and others, judgment of 12/01/2006, final on 12/04/2006
43662/98 Scordino No. 3, judgment of 17/05/2005, final on 12/10/2005
67790/01 Scozzari and others, judgment of 15/12/2005, final on 15/03/2006
67198/01 Serrao, judgment of 13/10/2005, final on 13/01/2006
77822/01 Serrilli, judgment of 06/12/2005, final on 06/03/2006
77823/01 Serrilli Pia Gloria and others, judgment of 17/11/2005, final on 17/02/2006
213/04 Ucci, judgment of 22/06/2006, final on 22/09/2006
12894/04 Zaffuto and others, judgment of 13/07/2006, final on 13/10/2006

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Interim Resolution ResDH(2007)42

Execution of the judgment of the European Court of Human Rights
in the case of Ahmet Okyay and others against Turkey


(Application No. 36220/97, judgment of 12 July 2005, final on 12 October 2005)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter referred to as “the Convention” and “the Court”);

Having regard to the final judgment of the Court in this case transmitted to the Committee on 12 October 2005;

Recalling that the violation of the right of access to a court guaranteed by Article 6 of the Convention established by the Court in this case concerns the national authorities’ failure to enforce domestic courts’ orders given in 1996 and upheld on appeal in 1998 to shut down three thermal-power plants (namely, Gökova (Kemerköy), Yeniköy and Yatağan), operated jointly by the Ministry of Energy and National Resources and a public utility company, as they polluted the environment in south-west Turkey in contravention of relevant Turkish environmental protection legislation (the operation of the plants was notably found to cause environmental harm and was carried out without the permits required by law);

Recalling in particular that the domestic courts’ orders were motivated by the lack of equipment for filtering sulphur dioxide and nitrogen oxide gases discharged from the plant’s chimneys and ordered that desulphurisation units be installed in order to filter 95% of the sulphur dioxide;

Recalling that a finding of the violations by the Court requires, over and above the payment of just satisfaction awarded in the judgment, the adoption by the respondent State, where appropriate, of

      - individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and

      - general measures preventing similar violations;

Recalling that since the Committee’s first examination of the case, the authorities have been repeatedly invited to comply with the domestic court orders in accordance with their obligation under Article 6 of the Convention, as set out in the Court’s judgment;

Noting that the Ministry of Energy and National Resources indicated already in the national proceedings in 1996 that contracts for the necessary improvements had been signed;

Noting that the necessary equipment has still not been installed and that, according to the information provided by the authorities, the power plants are in consequence thereof being operated at minimum capacity in order to maintain the lowest level gas emission and that administrative and judicial fines have been imposed for excessive pollution, in particular on the Yatağan power plant;

Deploring the fact that the domestic court orders to close the power plants remain unexecuted more than 6 years after they became final and one year after the Court’s judgment, and that the plants still continue to operate without proper filtering equipment;

Stressing that prolonged non-compliance with a judicial decision or injunction renders the right of access to a court illusory and the underlying legislation inoperative, thus leading to situations incompatible with the principle of the rule of law;

Stressing that the importance of speedy compliance with the judicial order is all the greater in the present case since the outcome of the proceedings is decisive for the applicants’ civil right to a healthy environment as guaranteed by the Turkish Constitution and relevant legislation;

Stressing also the importance of ensuring strict respect for domestic court judgments in the field of environmental protection;

Noting with concern the risk for a large group of people to be affected by the violation at issue;

Insisting, accordingly, on Turkey’s obligation to take without further delay all necessary individual and general measures required by the Court’s judgment;

      URGES the Turkish authorities to enforce the domestic court order imposing either closure of the power plants or installation of the necessary filtering equipment without further delay;

      INVITES the Turkish authorities to furnish information on the general measures envisaged to prevent violations similar to that at issue in the present judgment.

Section 1.1

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution ResDH(2007)5
concerning the judgment of the European Court of Human Rights
of 18 February 1999
in the case of Larkos against Cyprus

(Adopted by the Committee of Ministers on 28 February 2007
at the 987th meeting of the Ministers’ Deputies)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as “the Convention”),

Having regard to the judgment of the European Court of Human Rights in the Larkos case delivered on 18 February 1999 and transmitted to the Committee of Ministers the same day under Article 46 of the Convention;

Recalling that the case originated in an application (No. 29515/95) against Cyprus, lodged with the European Commission of Human Rights on 21 November 1995 under former Article 25 of the Convention by Mr Xenis Larkos, a Cypriot national, and that the Commission declared admissible the complaint that because the applicant was a tenant of the State, he did not enjoy the protection from eviction after the termination of his lease which the Rent Control Law 1983 gave to persons who rented property from private owners;

Recalling that the case was brought before the Court by the government of the respondent state on 11 May 1998;

Whereas in its judgment of 18 February 1999 the Court, unanimously:

- held that there had been a violation of Article 14 of the Convention in conjunction with Article 8 of the Convention;

- held that it is not necessary to consider the applicant’s complaint under Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1 to the Convention;

- held that the government of the respondent state was to pay the applicant, within three months, 3 000 Cyprus pounds in respect of non-pecuniary damage and 5 000 Cyprus pounds in respect of costs and expenses, together with any value-added tax that may be chargeable and that simple interest at an annual rate of 8% shall be payable from the expiry of the above-mentioned three months until settlement;

- dismissed the remainder of the claim for just satisfaction;

Having regard to the Rules adopted by the Committee of Ministers concerning the application of Article 46, paragraph 2, of the Convention;

Having invited the government of the respondent state to inform it of the measures which had been taken in consequence of the judgment of 18 February 1999, having regard to Cyprus’s obligation under Article 46, paragraph 1, of the Convention to abide by it;

Whereas during the examination of the case by the Committee of Ministers, the government of the respondent state gave the Committee information about the measures taken preventing new violations of the same kind as that found in the present judgment; this information appears in the appendix to this resolution;

Having satisfied itself that on 14 May 1999, within the time-limit set, the government of the respondent state paid the applicant the sums provided in the judgment of 18 February 1999,

Having examined the measures taken by the respondent state (see Appendix) and considering the decision taken at the 819th meeting of the Ministers’ Deputies (December 2002).

DECLARES that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case, and

DECIDES to close its examination.

Appendix to Resolution ResDH(2007)5

Information provided by the Government of Cyprus
during the examination of the Larkos case

by the Committee of Ministers

The Government of Cyprus indicated that the House of Representatives of the Republic of Cyprus, on 11 July 2002, adopted amendments to the provisions of the Rent Control Law 1983 which concern the eviction of the tenants of the State-owned dwellings and the private tenants renting from private landlords. This legislation (the Rent Control (Amendment) Law No. 150 (I) of 2002) provides, inter alia, that the provisions of the Rent Control Law of 1983 concerning the protection from eviction shall be equally applicable to both the tenants of State-owned dwellings such as the applicant and other private tenants renting from private landlords (Section 2A of Law No. 150 (I) of 2002).

Furthermore, the amended Rent Control Law provides that the domestic courts should not deliver new judgments or orders contrary to Section 2A of Law No. 150 (I) of 2002 and that the judgments or orders already pending enforcement which concern the eviction of the tenants of the State-owned dwellings should not enforced. These amendments thus effectively remedy both the applicant’s situation and prevent new similar violations. The judgment of the European Court of Human Rights has, in addition, been disseminated to the authorities concerned.

In view of the foregoing, the government is of the opinion that Cyprus has complied with its obligation under Article 46, paragraph 2, of the Convention to abide by the judgment in the case of Larkos against Cyprus.

Section 1.1

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution ResDH(2007)63

Execution of the judgment of the European Court of Human Rights
Sørensen and Rasmussen against Denmark

(Application No. 52562/99, judgment of 11 January 2006)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which sets forth the Committee’s duty to supervise the execution of final judgments of the European Court of Human Rights (hereinafter referred to as “the Convention” and “the Court”);

Having regard to the final judgment in this case, transmitted by the Court to the Committee on 11 January 2006;

Recalling that the violation of the Convention found by the Court in this case concerns the absence of the right of employees not to become a member of a trade union, i.e so-called closed-shop agreements between employers and trade unions (Article 11), (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the measures taken in order to comply with Denmark’s obligation under Article 46, paragraph 1, of the Convention to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state had paid the applicants the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgment, the adoption by the respondent state, where appropriate, of

      - individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and

      - general measures preventing, similar violations;

Having examined the measures taken by the respondent state to that effect, the details of which appear in the Appendix;

      DECLARES that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and DECIDES to close its examination.

Appendix to Resolution ResDH(2007)6

Information about the measures to comply with the judgment in the case of
Sørensen and Rasmussen against Denmark

      Introductory case summary

This case concerns a violation of the applicants' freedom of association due to the obligation imposed on them by their employer at the moment of their recruitment to join a particular trade union which had concluded a “closed-shop” agreement with the employer (violation of Article 11).
The first applicant was dismissed from his summer job for refusing to join the union in question, even though he was obliged by his employment contract to do so. The second applicant joined the union, but objected to compulsory membership.
The European Court found that this compulsion struck at the very substance of the freedom of association guaranteed by the Convention. It further found that no fair balance had been struck between the applicants' interests and the need to ensure that trade unions are able to strive to protect their members' interest. Accordingly, the respondent state had failed in its positive obligation to protect the applicant's negative right to trade union freedom.

      I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Name

Pecuniary damage

Costs and expenses

Total

Sørensen

2 000 €

33 698 €

35 698 €

Rasmussen

 

37 678 €

37 678 €

Total

2 000 €

71 376 €

73 376 €

b) Individual measures

Neither applicants is still working for the same employer or obliged to be a member of a trade union. Thus no individual measure is called for.

      II. General measures

Following the judgment, the government tabled a bill on 2 February 2006 amending the Act on protection against dismissal due to association membership. According to this bill, a person's affiliation to a union or non-membership of a union must not be taken into account in a recruitment situation or in connection with dismissal. The bill extends the negative freedom of association, i.e. the right not to be a member of a union. As a consequence of the bill, any closed-shop agreements contained in collective agreements will be null and void and may not be concluded in the future. The bill was enacted by the Danish Parliament and entered into force on 29 April 2006.
Furthermore, the authorities indicated that the judgment received massive press coverage in Denmark. The Ministry of Employment issued a press release on its Internet site with links to the judgment. In addition, the judgment has been published in a national law journal (EU-ret & Menneskeret) in May 2006.

The government considers that the measures adopted prevent new similar violations of the Convention and that Denmark has thus complied with its obligations under Article 46, paragraph 1, of the Convention in the present case.

Section 1.1

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution ResDH(2007)74

Execution of the judgment of the European Court of Human Rights
Epple against Germany

(Application No. 77909/01, judgments of 24 March 2005, final on 24 June 2005 and of 15 December 2005 (revision and just satisfaction), final on 15 March 2006

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter referred to as “the Convention” and “the Court”);

Having regard to the judgments of 24 March and 15 December 2005, transmitted once they had become final to the Committee of Ministers under Articles 44 and 46;

Recalling that the violation of the Convention found by the Court in this case concerns the excessive length of the applicant’s detention in police custody (violation of Article 5, paragraph 1b) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the measures taken in order to comply with Germany’s obligation under Article 46, paragraph 1, of the Convention to abide by the judgments;

Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the applicant the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgment, the adoption by the respondent state, where appropriate, of

      - individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and

      - general measures preventing new, similar violations;

Having examined the measures taken by the respondent state to that effect, the details of which appear in the Appendix;

      DECLARES that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and DECIDES to close its examination.

Appendix to Resolution ResDH(2007)7

Information about the measures to comply with the judgment in the case of
Epple against Germany

      Introductory case summary

The case concerns the excessive length of the applicant's detention in police custody for 19 hours (from 18.45 on Friday 18 July 1997 to 13.45 the following day). The applicant had been arrested for refusing to obey an instruction to leave the island of Lindau given because, on account of his punk haircut, he was suspected of taking part in the “Lindau Days of Chaos” which had been forbidden by the public authorities (violation of Article 5, paragraph 1b). The applicant had already taken part in “Chaos Days” in Lindau and elsewhere.
The European Court established that there had been no breach of the statutory time-limit, since Section 20(3) of the Bavarian Police Tasks and Competencies Act (Gesetz über die Aufgaben und Befugnisse der Bayerischen Staatlichen Polizei – Polizeiaufgabengesetz) provided that, in the absence of a prior court order for continued detention, persons in police custody were in all cases to be released at the latest at the end of the day following their arrest. However, the Court noted that the offence for which the applicant was arrested carried a maximum fine of 250 euros. The applicant had been held for 19 hours, as the Lindau District Court did not sit at weekends and the duty judge on Saturday 19 July 1997 had arrived late (at about 11.30 a.m. instead of 10 a.m.) and had to examine the lawfulness of the detention of no less than 17 people. In the light of the circumstances of the case and the importance of the right to liberty in the Convention, the Court found that the combination of the period the applicant had spent in police custody and the judge's delay in considering his case meant that a proper balance had not been struck between the need to enforce the order made against the applicant and the applicant's right to liberty (violation of Article 5, paragraph 1 (b)).

      I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Costs and expenses

Total

Paid on

1 700 €

1 700 €

18/04/2006

b) Individual measures

The applicant applied to the European Court for revision of the judgment with respect to Article 41. In its revised judgment of 15 December 2005, the Court held that the finding of a violation constituted in itself sufficient just satisfaction with regard to non-pecuniary damage.

      II. General measures

The judgment of the European Court which does not seem to reveal a strucural problem, was disseminated by letters of the Government Agent of 13 April 2005 and 2 January 2006 to the courts and justice authorities concerned, i.e. the State Ministries of Justice and of the Interior of Bavaria, the Federal Ministry of the Interior and the Federal Constitutional Court. All judgments of the European Court against Germany are publicly available via the website of the Federal Ministry of Justice (www.bmj.de <http://www.bmj.de>, Themen: Menschenrechte, EGMR) which provides a direct link to the Court's website for judgments in German (www.coe.int/T/D/Menschenrechtsgerichtshof/Dokumente_auf_Deutsch/ <http://www.coe.int/T/D/Menschenrechtsgerichtshof/Dokumente_auf_Deutsch/>).

Section 1.1

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution ResDH(2007)8
concerning the judgments of the European Court of Human Rights
between 29 April 1999 and 9 January 2003
in the cases of Sabeur Ben Ali, Aquilina, T.W. and Kadem against Malta
(see Appendix)

(Adopted by the Committee of Ministers on 28 February 2007,
at the 987th meeting of the Ministers’ Deputies)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as “the Convention”),

Having regard to the judgments of the European Court of Human Rights in the four cases delivered between 29 April 1999 and 9 January 2003 (details of which appear in appendix II to this resolution) and transmitted to the Committee of Ministers once it had become final under Articles 44 and 46 of the Convention;

Recalling that the cases originated in applications against Malta, lodged with the European Commission of Human Rights between 7 July 1994 (Aquilina), 2 November 1994 (T.W.) and 21 February 1997 (Sabeur Ben Ali) under former Article 25 of the Convention and one application lodged with the European Court of Human Rights under Article 34 of the Convention on 11 February 2000 (Kadem) and that the Court, seised of the case under Article 5, paragraph 2, of Protocol No. 11, declared admissible the complaints that, under Maltese law, the applicants could not obtain an automatic review of the reasonableness of the suspicion against them or have the lawfulness of their arrests and detentions reviewed promptly by a court;

Whereas in its judgments the Court unanimously:

- held that there had been a violation of Article 5§3 of the Convention (Aquilina, T.W., Sabeur Ben Ali);

- held that there had been a violation of Article 5§4 of the Convention (Sabeur Ben Ali, Kadem);

- held that the government of the respondent state was to pay the applicants, within three months from the date at which the judgment became final, the amounts of just satisfaction (set out in the appendix to this resolution)
- dismissed the remainder of the applicants’ claim for just satisfaction;

Having regard to the Rules adopted by the Committee of Ministers concerning the application of Article 46, paragraph 2, of the Convention;

Having invited the government of the respondent state to inform it of the measures which had been taken in consequence of these judgments, having regard to Malta’s obligation under Article 46, paragraph 1, of the Convention to abide by it;

Whereas during the examination of the cases by the Committee of Ministers, the government of the respondent state gave the Committee information about the measures taken preventing new violations of the same kind as those found in the present judgments; this information appears in appendix I to this resolution;

Having satisfied itself that on the dates indicated in appendix, within the time-limit set, the government of the respondent state had paid the applicants the sums provided in these judgments.

Declares, after having examined the information supplied by the Government of Malta, that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case.

Appendix to Resolution ResDH(2007)8

Information provided by the Government of Malta
during the examination of the cases of Sabeur Ben Ali, Aquilina, T.W. and Kadem

by the Committee of Ministers

Introductory case summary

Case

Application

Judgment date

Defintive judgment date

AQUILINA Joseph

25642/94

29/04/99

29/04/99

KADEM M’hmed

55263/00

09/01/03

09/04/03

SABEUR BEN ALI Ben Nasr

35892/97

29/06/00

29/09/00

T.W.

25644/94

29/04/99

29/04/99

In the case of Sabeur Ben Ali, the applicant was arrested in Malta on 17 March 1995 for drug-related offences. Although he was brought before the Maltese Court of Magistrates on 19 March 1995 for arraignment, the European Court found that the court had no power to automatically review the merits of his detention or to determine whether there existed a reasonable suspicion against him (violation of Article 5§3). The Court also found that under Maltese law, the applicant had no other means to obtain speedy judicial review of the lawfulness of his continued detention (violation of Article 5§4). The applicant was acquitted of all charges on 5 February 1997 and was released from custody. The same type of violation occurred in the cases of Aquilina (violation of Article 5§3, judgment of 29 June 1999), T.W. (violation of Article 5§3, judgment of 29 April 1999) and Kadem (violation of Article 5§4, judgment of 9 January 2003).

I. Payment of the just satisfaction and individual measures

a) Details of just satisfaction

Case

Non-pecuniary damage

Costs & expenses

Date of payment

AQUILINA Joseph

 

3 000,00 MTL

25/06/99

KADEM M’hmed

5 000,00 €

2 500,00 €

02/07/03

SABEUR BEN ALI Ben Nasr

1 000,00 MTL

900,00 MTL

07/11/00

T.W.

 

2 600,00 MTL

25/06/99

b) Individual measures

The applicants were all released from detention at the time of the European Court’s judgment and any economic consequences of the violation established have been compensated by the Court’s just satisfaction awarded.

II. General measures

At the time of this case, the only explicit habeas corpus provision that existed in Maltese Law was Article 137 of the Criminal Code, which was found to be insufficient by the European Court. The European Court further noted that a constitutional application did not ensure speedy review of the lawfulness of a person’s detention, either.

The Maltese Parliament by virtue of Act III of 2002 passed several amendments to the Maltese Criminal Code (see Legal Notice 94/2002 for Article 409A, Article 412B, Subsection 2A of Article 525 which entered into force 1 May 2002, and Legal Notice 273/2003 for Article 574A which entered into force 1 January 2004). The amended Criminal Code grants the Court of Magistrates the power to automatically review the merits of any person’s detention. It also gives all detainees the right to speedy review of the lawfulness of their continued detention. These amendments will prevent similar violations of Article 5§3 and Article 5§4 in the future. All judgments of the European Court against Malta are are habitually disseminated among the competent authorities and publicly available via the website of the Ministry of Justice and Home affairs (www.mjha.gov.mt/ministry/links.html) which provides for a direct link to the Court’s website.

Section 1.1

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution ResDH(2007)95

Execution of the judgment of the European Court of Human Rights
Calleja against Malta

(Application No. 75274/01, judgment of 7 April 2005, final on 7 July 2005)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter referred to as “the Convention” and “the Court”);

Having regard to the judgment in this case, transmitted once it had become final by the Court to the Committee on 7 July 2005;

Recalling that the violations of the Convention found by the Court in this case concern the excessive length of detention on remand and of certain criminal proceedings (violation of Article 5, paragraph 3, and Article 6, paragraph 1), (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the measures taken in order to comply with Malta’s obligation under Article 46, paragraph 1, of the Convention to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the applicant the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgment, the adoption by the respondent state, where appropriate, of

      - individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and

      - general measures preventing new, similar violations;

Having examined the measures taken by the respondent state to that effect, the details of which appear in the Appendix;

      DECLARES that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and DECIDES to close its examination.

Appendix to Resolution ResDH(2007)9

Information about the measures to comply with the judgment in the case of
Calleja against Malta

      Introductory case summary

The case concerns the excessive length of the applicant's detention on remand, from May 1996 to April 2001 (4 years, 10 months) in the absence of any adequate reason to justify it (violation of Article 5, paragraph 3).
The case also concerns the excessive length of the criminal proceedings (from May 1996 to October 2004, i.e. a total of 7 years, 8 months) (violation of Article 6, paragraph 1).

      I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Non-pecuniary damage

Costs and expenses

Total

5 000 €

4 832 €

9 832 €

b) Individual measures

None (proceedings closed).

      II. General measures

In the light of the findings of the Court, the case does not reveal any structural problem. All judgments of the European Court against Malta are automatically sent out to competent authorities and are publicly available via the website of the Ministry of Justice and Home affairs (www.http://www.bmj.de>mjha.gov.mt/ministry/links.html) which provides a direct link to the Court's website.

Section 1.1

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution ResDH(2007)106

Execution of the judgment of the European Court of Human Rights
Krumpel and Krumpelová against the Slovak Republic

(Application No. 56195/00, judgment of 5 July 2005, final on 5 October 2005)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter referred to as “the Convention” and “the Court”);

Having regard to the judgment in these cases, transmitted once it had become final by the Court to the Committee on 5 October 2005;

Recalling that the violation of the Convention found by the Court in this case concerns the excessive length of certain criminal proceedings (violation of Article 6, paragraph 1), (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the measures taken in order to comply with the Slovak Republic’s obligation under Article 46, paragraph 1, of the Convention to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the applicants the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgment, the adoption by the respondent state, where appropriate, of

      - individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and

      - general measures preventing similar violations;

Having examined the measures taken by the respondent state to that effect, the details of which appear in the Appendix;

      DECLARES that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and DECIDES to close its examination.

Appendix to Resolution ResDH(2007)10

Information about the measures to comply with the judgment in the case of
Krumpel and Krumpelová against the Slovak Republic

      Introductory case summary

This case concerns the excessive length of certain criminal proceedings to which the applicants were civil parties (violation of Article 6, paragraph 1). The proceedings began in 1991 and were still pending before the first- instance court when the European Court delivered its judgment (a period of 13 years and more than 2 months falls within the European Court's jurisdiction).

      I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Total

Paid on

10 000 €

10 000 €

05/12/2005

b) Individual measures

At present the proceedings are pending before the Supreme Court. The attention of the Supreme Court has been drawn to the European Court's findings with a view to accelerating the proceedings as far as possible.

      II. General measures

Constitutional reform introducing an effective remedy against the excessive length of proceedings

As from 1 January 2002, the Constitution of the Slovak Republic was amended to allow individuals and legal persons to complain about alleged violations of their right to have their cases tried without unjustified delay. The Constitutional Court has also been given the power to order the competent authority to proceed with a given case without delay and to grant adequate pecuniary compensation in case of excessive length of judicial proceedings (Article 127, as amended in 2002).

The European Court has already found on several occasions that, having regard to the Constitutional Court's practice in this field (see below), this new constitutional remedy represents an effective remedy in the sense of Article 13 of the Convention (see decisions on the admissibility in the case of Hody, of 6 May 2003, Paška, of 3 December 2002 and Andrášik and others, of 22 October 2002).

Legislative measures to accelerate criminal proceedings

A new Code of Criminal Procedure entered into force on 1 January 2006. Its most important provisions aimed at accelerating of criminal proceedings are as follows:

- the maximum duration of pre-trial detention is limited to 4 years, instead of 5 years under the old Code (Article 71 of the new code). Accordingly, the duration of the pre-trial detention at the preliminary investigation stage may not exceed 2 years, which will stimulate investigation bodies to deal with cases promptly;

- a single judge is competent to decide on placing and keeping an accused in pre-trial detention, as well as to authorise searches, telephone monitoring or other procedural acts during the preliminary investigation stage;

- a shortened procedure was introduced for cases of offences detected immediately after commission (Article 204);

- the possibilities for remittal of a case to the first instance have been limited. The appeal court decides on the merits in all cases, except when gathering of new evidence appears to be particularly difficult;

- the rules governing summonses and communication of documents, which used to cause delays in the criminal proceedings, have been reformed (Articles 88 and 277, paragraph 4);

- a new way of communication of the first instance decisions and new time-limit of 15 days for lodging an appeal against these decisions have been introduced in order to reduce the length of proceedings at this stage of their examination (Article 309);

- an additional remedy allowing complaints against the length of proceedings has been introduced. Interested parties may lodge a complaint with the judge competent to rule on the merits of the case, requesting acceleration of the proceedings. Within 15 days the judge must indicate procedural measures to be taken and the time-limits foreseen for them. If the complainant does not agree with the decision, the request must be sent to the superior court which may give binding instructions to the lower court as regards the acts to be carried out and the time-limits for these acts (Articles 55 and 327, paragraph 1).

Statistical data

Between 2002 and 2005, the average length of the criminal proceedings resulting in convictions was between 4.02 and 5.78 months before the first instance courts and between 23.51 and 28.20 before appeal courts (from the beginning of the proceedings before the instance in question until the decision on the merits).

Publication and dissemination

The judgment of the European Court was published in Justičná revue, No. 10/2005. With a view to facilitating the development of the direct effect of the Convention and the case-law of the European Court in Slovak law, the Minister of Justice sent this judgment, accompanied by a circular letter, to all Presidents of regional criminal courts, inviting them to send it out to all competent juges in order to avoid similar violations in future.

Section 1.1

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution ResDH(2007)117

Execution of the judgment of the European Court of Human Rights
Munari against Switzerland

(Application No. 7957/02, judgment of 12 July 2005, final on 12 October 2005)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter referred to as “the Convention” and “the Court”);

Having regard to the judgment in this case, transmitted once it had become final by the Court to the Committee on 12 October 2005;

Recalling that the violation of the Convention found by the Court in this case concerns the excessive length of criminal proceedings (violation of Article 6, paragraph 1) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the measures taken in order to comply with Switzerland’s obligation under Article 46, paragraph 1, of the Convention to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the applicant the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgment, the adoption by the respondent state, where appropriate, of

      - individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and

      - general measures preventing new, similar violations;

Having examined the measures taken by the respondent state to that effect, the details of which appear in the Appendix;

      DECLARES that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and DECIDES to close its examination.

Appendix to Resolution ResDH(2007)11

Information about the measures to comply with the judgment in the case of
Munari against Switzerland

      Introductory case summary

The case concerns the excessive length of certain criminal proceedings against the applicant, a financial consultant for a foundation, who was suspected of fraud, offences relating to the foundation's assets and dishonest management. The period to be taken into consideration began in January 1993 with preliminary investigations and ended in December 2002 when the public prosecutor abandoned the prosecution for lack of grounds (more than 9 years for one level of jurisdiction) (violation of Article 6, paragraph 1).

      I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Non-pecuniary damage

Costs and expenses

Total

Paid on

7 000 €

3 230 €

10 230 €

13/12/2005

b) Individual measures

None (proceedings closed). In June 2001, the Federal Court awarded the applicant 1 500 Swiss francs for his expenses on account of the length of the proceedings. Following the appeal introduced by the applicant in April 2001, the Federal Court acknowledged the violation of Article 6, paragraph 1, in this case and ordered the lower courts to deal with it without further delay.

      II. General measures

The judgment of the European Court which does not reveal a structural problem, has been sent out to the authorities directly concerned and brought to the attention of the Cantons via a circular. It was published in Verwaltungspraxis der Bundesbehörden (Digest of Confederal Administrative Case-law), VPB 69.137, available via <http://www.vpb.admin.ch/deutsch/doc/69/69.137.html> and mentioned in the yearly report of the Federal Council on the activities of Switzerland in the Council of Europe in 2005.

Section 1.1

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Final Resolution ResDH(2007)12
Human Rights
Application No. 27613/95
P.B. against Switzerland

(Adopted by the Committee of Ministers on 28 February 2007,
at the 987th meeting of the Ministers’ Deputies)

The Committee of Ministers, under the terms of former Article 32 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as “the Convention”),

Having regard to Interim Resolution DH (2000)83, adopted on 29 May 2000 in the case of P.B. against Switzerland, in which the Committee of Ministers decided that there had been a violation of Article 5, paragraph 4, of the Convention because the decision on the lawfulness of the applicant’s detention had not been taken speedily, and to make public the report of the European Commission of Human Rights;

Whereas the Committee of Ministers examined the proposals made by the Commission when transmitting its report as regards just satisfaction to be awarded to the applicant, proposals supplemented by a letter of the Special Committee of counselors in charge of assisting the Committee of Ministers on the just satisfaction issue dated 9 April 2001;

Whereas at the 757th meeting of the Ministers’ Deputies, the Committee of Ministers, agreeing with the Commission’s proposals, held by a decision adopted on 26 June 2001, in accordance with former Article 32, paragraph 2, of the Convention, that the government of the respondent state was to pay the applicant as just satisfaction, within three months, 7 000 CHF in respect of non-pecuniary damage and 3 225 CHFin respect of costs and expenses, namely a total sum of 10 225 CHF, and that interest should be payable on any unpaid sum, calculated on the basis of each full elapsed month of delay at the statutory rate applicable on the date of this decision, it being understood that the interest would accrue from the expiry of the time-limit until full payment was placed at the disposal of the applicant;

Whereas the Committee of Ministers invited the government of the respondent state to inform it of the measures taken following its decisions of 29 May 2000 and 26 June 2001, having regard to Switzerland’s obligation under former Article 32, paragraph 4, of the Convention to abide by them;

Whereas during the examination of the case by the Committee of Ministers, the government of the respondent state drew the Committee’s attention to the fact that, on account of the specific circumstances of the case, new similar violations of the Convention could be avoided for the future by informing the authorities concerned of the requirements of the Convention: copies of the Commission’s report had accordingly been sent out to the Federal Court and to the Department of justice and security of the Thurgovie Canton; in addition, the Commission’s report has been mentioned, together with a presentation of the main legal aspects of the case, in volume 64(2000) of the Review « Jurisprudence des autorités administratives de la Confédération » under n°135 ; lastly, the text published can be found on line at the following address : http://www.vpb.admin.ch/franz/doc/64/64.135.html ;

Whereas the Committee of Ministers satisfied itself that on 12 June 2001, within the time-limit set, the government of the respondent state had paid the applicant the total sum of 10 225 CHF as just satisfaction,

Having examined the measures taken by the respondent state (see Appendix) and considering the decision taken at the 810th meeting of the Ministers’ Deputies (October 2002).

      DECLARES that it has exercised its functions under former Article 32 of the Convention in this case, and

      DECIDES to close its examination.

Section 1.1

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution ResDH(2007)138

Execution of the judgment of the European Court of Human Rights
Ukrainian Media Group against Ukraine

(Application No. 72713/01, judgment of 29 March 2005, rectified on 29 March 2005,
final on 12 October 2005,)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter referred to as “the Convention” and “the Court”);

Having regard to the judgment in this case, transmitted once it had become final by the Court to the Committee on 12 October 2005;

Recalling that the violation of the Convention found by the Court in this case concerns a violation of the freedom of expression the applicant company owing to the lack of distinction in Law between factual statements and value judgments (violation of Article 10) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the measures taken in order to comply with Ukraine’s obligation under Article 46, paragraph 1, of the Convention to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the applicant the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgment, the adoption by the respondent State, where appropriate, of

      - individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and

      - general measures preventing, similar violations;

Having examined the measures taken by the respondent state to that effect, the details of which appear in the Appendix;

      DECLARES that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and DECIDES to close its examination.

Appendix to Resolution ResDH(2007)13

Information about the measures to comply with the judgment in the case of
Ukrainian Media Group against Ukraine

      Introductory case summary

The case concerns a disproportionate interference in the freedom of expression of the applicant company, in that in 2000 a civil court found against it in defamation proceedings brought following publication in the applicant company's daily newspaper of two articles criticising political candidates (violation of Article 10).
The European Court found that the Ukrainian law on defamation in force at the time was not compatible with the Convention, as it required defendants to prove the truth of any impugned negative statements, irrespective of whether they were factual statements or, as in this case, value judgments which should not be susceptible of proof.

      I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

588,12 €

33000 €

5521,07 €

39109,19 €

Paid on 15/12/2005

b) Individual measures

The European Court awarded just satisfaction in respect of all the damages suffered by the applicant company as a consequence of the violation (see above).

      II. General measures

Even before the judgment in this case was delivered by the European Court, the Ukrainian law on defamation was amended by the Law of 3/04/2003 on the “Insertion of Changes to Certain Laws of Ukraine concerning Ensuring an Unimpeded Realisation of the Human Right to Freedom of Speech”. A new Article 47-1 (“Exemption from liability”) was added to the Law of Ukraine on Information, exempting value judgments from liability. The term “value judgement” is defined as follows: “value judgements, except for insult or defamation, are expressions which contain no factual data, in particular criticism, assessment of actions as well as statements which cannot be considered as statements of fact due to the nature of the language used, in particular the use of hyperboles, allegories, satire. Value judgements are not subject to proof or refutation”.

Other important amendments introduced by the law of 3/04/2003 are as follows:

- State bodies and bodies of local self-government are prohibited from demanding non-pecuniary damages for the publication of false information, although they may demand a right of refutation. Officials acting in their personal capacity may still seek to protect their right to their honour and dignity through the courts.

- The law provides a defence of conscientious publication. It states that a journalist and/or a mass medium are exempt of liability for dissemination of false information if the court rules that a journalist acted in good faith and verified the information.

- The law establishes that a plaintiff must pay to the court a proportion of the amount claimed in compensation when filing a defamation case (through a provision added to the Law on State Duty (Article I.4)). The proportion becomes greater as the amount claimed increases. This has contributed to the reduction of the amounts imposed as awards in defamation cases;

- Compensation for non-pecuniary damage in defamation cases may only be imposed in cases of malicious intent by the journalist or media outlet which disseminated the impugned expression (through the addition of Paragraph 4 to Article 17 of the Law of Ukraine “On State Support of Mass Media and Social Security of Journalists”). Malicious intent is defined as “such attitude to the dissemination of information when a journalist and/or a representative of media outlet realises that the information is false and foresees its dangerous consequences for society.” Moreover, in such cases “the court shall also consider the consequences of the use by a plaintiff of the possibilities of pre-trial refutation of the false information, protection of his honour, dignity and settlement of the conflict on the whole”.

Furthermore, provisions of the Ukrainian Civil Code concerning defamation have been modified. Articles 277 and 302 of the Civil Code, which were criticised in the judgment, were amended by the Law of 22/12/2005. The amended Article 277 § 3 provides that “negative information shall be deemed to be false unless proven otherwise by the person who disseminated the said information.”

The relevant provision of Article 302 provides for that “[a]n individual disseminating information obtained from official sources (information of state bodies, bodies of local self-government, reports, records, etc.) is not obliged to verify its authenticity and shall not be held liable in the case of its refutation. An individual disseminating information obtained from official sources shall make a reference to its source.”

Publication and dissemination of the judgment: The judgment was translated into Ukrainian and placed on the Ministry of Justice's official web-site www.minjust.gov.ua <http://www.minjust.gov.ua>. It has also been published in the official government's publication, the Official Herald of Ukraine [Ofitsiynyi Visnyk Ukrayiny], No. 7, 2006.

Moreover, to ensure a direct effect of the Convention in Ukrainian law as regards defamation proceedings, summary of the judgment was published in the official publication of the Supreme Court, the Herald of the Supreme Court of Ukraine [Visnyk Verkhovnogo Sudu Ukrayiny], No. 9, 2005 - which is distributed to all Ukrainian courts.

Furthermore, a number of round tables and seminars regarding this judgment were held, not least for judges of courts of all levels. The Union of Journalists of Ukraine, with the assistance of the Government Agent, held a special press-conference on the judgment.

Section 1.1

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution ResDH(2007)149

Execution of the judgment of the European Court of Human Rights
Bowman against United Kingdom

(Application No. 24839/94, judgment of 19 February 1998)

The Committee of Ministers, under the terms of former Article 54 and new Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provide that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter referred to as “the Convention” and “the Court”);

Having regard to the final judgment in this case, transmitted by the Court to the Committee on 19 February 1998;

Recalling that the violation found by the Court in this case concerns the prosecution brought against the applicant following the distribution of leaflets against abortion prior to a general election in 1992 (violation of Article 10) (see details in Appendix);

Having invited the government of the respondent State to inform the Committee of the measures taken in order to comply with the United Kingdom’s obligation under former Article 53 and new Article 46, paragraph 1, of the Convention to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention, which are applicable by decision of the Committee of Ministers to cases under former Article 54;

Having satisfied itself that, within the time-limit set, the respondent state paid the applicant the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgment, the adoption by the respondent State, where appropriate, of

      - individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and

      - general measures preventing, similar violations;

Having examined the measures taken by the respondent state (see Appendix) and considering the decision taken at the 803rd meeting of the Ministers’ Deputies (July 2002),

      DECLARES that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case, and

      DECIDES to close its examination.

Appendix to Resolution ResDH(2007)14

Information about the measures to comply with the judgment in the case of
Bowman against United Kingdom

      Introductory case summary

The case concerns the prosecution brought against the applicant, Executive Director of an anti-abortion association, for having distributed leaflets which indicated the position that certain political candidates had on abortion prior to a general election in 1992.

Mrs Bowman was charged with an offence under Section 75 of the Representation of the People Act 1983 (“the 1983 Act”), which prohibited expenditure of more than five pounds sterling (“GBP”) by an unauthorised person during the period before an election on conveying information to electors with a view to promoting or procuring the election of a candidate.

The Court found it significant that the limitation on expenditure contained in section 75 of the 1983 Act had been set as low as GBP 5 and concluded that this provision operated, for all practical purposes, as a total barrier to Mrs Bowman’s publishing information. It was therefore not satisfied that such a restriction was proportionate, particularly in view of the fact that there were no equivalent restrictions placed upon the media (violation of Article 10).

      I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Non-pecuniary damage

Costs and expenses

TOTAL

Finding of violation is sufficient just satisfaction

26,633.64 pounds sterling + VAT

26,633.64 pounds sterling + VAT

Paid on 12/05/98

b) Individual measures

At Mrs Bowman’s trial at Southwark Crown Court on 27 September 1993, the judge directed her acquittal, because the summons charging her with the offence had not been issued within one year of the alleged prohibited expenditure, in accordance with the time-limit stipulated in section 176 of the 1983 Act (paragraph 14 of the ECHR judgment of 19/02/98).

The Court furthermore held, unanimously, that the finding of violation was sufficient just satisfaction for any non-pecuniary damage suffered by the applicant.

Accordingly, the adoption of further individual measures did not appear to be necessary in this case.

      II. General measures

Publication and dissemination of the judgment

The case received broad media coverage in the British press and in legal journals.

Furthermore, the Home Office brought the case to the attention of all electoral administrators and a circular, dated 22/06/98, was distributed to all returning officers.

Legislative measures

Immediately after the issuing of this judgment, the authorities of the United Kingdom asked the independent body (Neill Committee) they had established to report on the funding of political parties in the United Kingdom to consider the implications of the Bowman judgment and of the general preventive measures that might be envisaged.

The recommendations of this committee resulted in the adoption, in December 2000, of a new law on the financing of political parties (the Political Parties, Elections and Referendums Act 2000), which entered into force on 16/02/2001 and notably amended Section 75 of the 1983 Act.

In particular, the restriction on expenditure, which had been found by the European Court to be significantly low, has been raised (by section 131 of the 2000 Act) from 5 to 500 GBP in respect of a candidate at a parliamentary election and to 50 GBP in respect of a candidate at a local government election.

The scope of the amendment by section 131 of the 2000 Act unintentionally left ambiguous whether the limit had been raised to 500 GBP in respect of certain of the four categories of expenditure regulated by section 75 of the 1983 Act. In R v. Holding [2006] the Court of Appeal (in order to take proper account of the judgment in Bowman and in accordance with the obligation under section 3 of the Human Rights Act 1998 to construe legislation to be compatible with Convention rights “so far as it is possible to do” found that the raised limit did apply to each category of expenditure; and the United Kingdom authorities took the further step of removing the ambiguity from the text of the 1983 Act by section 25 of the Electoral Administration Act 2006 (which was given retrospective effect from 16/02/2001).

Section 1.1

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution ResDH(2007)1510

Execution of the judgment of the European Court of Human Rights
Halford against United Kingdom

(Application No. 20605/92, judgment of 25 June 1997)

The Committee of Ministers, under the terms of former Article 54 and new Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provide that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter referred to as “the Convention” and “the Court”);

Having regard to the final judgment in this case, transmitted by the Court to the Committee on 25 June 1997;

Recalling that the violations found by the Court in this case concern illegal interferences with telephone calls made on the applicant’s office telephone and the lack of effective remedies (violations of Articles 8 and 13) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the measures taken to comply with the United Kingdom’s obligation under former Article 53 and new Article 46, paragraph 1, of the Convention to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention, which are applicable by decision of the Committee of Ministers to cases under former Article 54;

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgment, the adoption by the respondent state, where appropriate, of

      - individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and

      - general measures preventing, similar violations;

Having regard to interim Resolution DH (99) 725 adopted by the Committee of Ministers on 3 December 1999, at its 688th meeting in which it indicated that it had provisionally exercised its functions under former Article 54 of the convention in the light of the information provided at the date by the Government of the respondent state confirming the payment of just satisfaction within the deadlines set and indicating the provisional general measures taken, pending the adoption of new legislation ;

Having examined the further measures taken by the respondent state, the details of which appear in the Appendix;

Having examined the measures taken by the respondent state (see Appendix) and considering the decision taken at the 810th meeting of the Ministers’ Deputies (October 2002),

      DECLARES that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case, and

      DECIDES to close its examination.

Appendix to Resolution ResDH(2007)15

Information about the measures to comply with the judgment in the case of
Halford against United Kingdom

      Introductory case summary

The case relates to a violation of the applicant’s right to respect for her privacy on account of the interception, between 1990 and 1992, of telephone calls she had made on her office telephones, which were linked to internal telecommunications systems operated by public authorities.

The Court found that such interference was illegal because at that time the domestic law did not regulate the interception of telephone calls made on this kind of telecommunications system. Furthermore, due to the lack of any regulation in this matter, no effective remedy had been available to the applicant to complain about the interception of her telephone calls (violation of Articles 8 and 13).

      I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Non-pecuniary and pecuniary damage

Costs and expenses

TOTAL

10 600 pounds sterling

25 000 pounds sterling + VAT

35 600 pounds sterling + VAT

Paid on 9/07/1997

b) Individual measures

The United Kingdom authorities officially confirmed that all intercept material at issue in this case had been destroyed.

      II. General measures

Legislation governing the regulation of interception on private telecommunication networks has been enacted in the form of the Regulation of Investigatory Powers Act 2000 (RIPA), which received Royal Assent on 28 July 2000. The relevant part of the Act, Part I of Chapter I (interception provisions), came into force on 2 October 2000. The purpose of this part of the Act is to prohibit the interception of communications on public and private networks, and then carve out from that overall prohibition certain limited circumstances whereby interception may lawfully be carried out on such networks.

Section 1(2) of the Act makes it a criminal offence intentionally and without lawful authority to intercept a communication in the course of its transmission by means of a private telecommunications system, as defined in section 2 (1). The penalties available for unlawful interception on a private network are either a fine or imprisonment for a term not exceeding two years in a Crown Court, or a fine not exceeding the statutory maximum of 5000 £ in a Magistrates Court (Section 1(7)).

Where a communication is intercepted in the course of its transmission by means of a private telecommunication system, but the person making the interception is (or has the consent of), the person controlling the system, as happened in the present case, no criminal liability arises (Section 1(2)(b) read with Section 1 (6)). However, in such circumstances, Section 1(3) of the Act creates a new civil liability. The sender, the recipient, or the intended recipient of a communication intercepted in these circumstances may sue the person who has the right to control the operation or the use of the telecommunication system in question. The latter will be liable unless he can show that he acted with lawful authority (as defined in Section 1(5)).

Where interception on a private network is carried out in accordance with a warrant from the Secretary of State, the interception will have lawful authority by virtue of Section 1(5)(b). An individual who wishes to complain about such an interception may seek redress from the newly created Investigatory Powers Tribunal (Section 65, paragraph 2b).

Furthermore, since the entry into force of the Human Rights Act on 2 October 2000, any person who believes that a public authority has breached his Convention rights may bring proceedings against the authority concerned under Section 7 (1) (a) of the Act. The Investigatory Powers Tribunal will be the relevant tribunal in which to bring any such proceedings against the intelligence services concerning, inter alia, an interception of communications.

Section 1.2

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Final Resolution ResDH(2007)16
Human Rights
Application No. 25658/94
Aslantaş against Turkey

(Adopted by the Committee of Ministers on 28 February 2007,
at the 987th meeting of the Ministers’ Deputies)

The Committee of Ministers, under the terms of former Article 32 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as “the Convention”),

Having regard to Interim Resolution DH (99)560, adopted on 8 October1999 in the case of Aslantaş against Turkey, in which the Committee of Ministers decided that there had been a violation of the applicant’s freedom of expression (violation of Article 10), and to make public the report of the European Commission of Human Rights;

Whereas the Committee of Ministers examined the proposals made by the Commission when transmitting its report as regards just satisfaction to be awarded to the applicants, proposals supplemented by a letter of the President of the Commission dated 30/10/1999;

Whereas at the 721st meeting of the Ministers’ Deputies, the Committee of Ministers, agreeing with the Commission’s proposals, held by a decision adopted on 2/10/2000, in accordance with former Article 32, paragraph 2, of the Convention, that the government of the respondent state was to pay the applicant as just satisfaction, within three months, 24 024.44 pounds sterling in respect of pecuniary damage, 30 000 French francs in respect of non-pecuniary damage and 7 000 pounds sterling in respect of costs and expenses, and that interest should be payable on any unpaid sum, calculated on the basis of each full elapsed month of delay at the statutory rate applicable on the date of this decision, it being understood that the interest would accrue from the expiry of the time-limit until full payment was placed at the disposal of the applicant;

Whereas the Committee of Ministers invited the government of the respondent state to inform it of the measures taken following its decisions of 8 October 1999 and 2 October 2000, having regard to Turkey’s obligation under former Article 32, paragraph 4, of the Convention to abide by them;

Whereas the Committee of Ministers satisfied itself that on 27 March 2003, the government of the respondent state had paid the applicant the sums awarded as just satisfaction by decision of 2/10/2000, including the default interest due,

Recalling that a finding of violations requires, over and above the payment of just satisfaction awarded, the adoption by the respondent state, where appropriate, of

- individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and

- general measures preventing new, similar violations;

Having examined the measures taken by the respondent state to that effect,

Recalling that in its Interim Resolution (2004)38 of 2 June 2004 the Committee of Ministers decided that its examination of those cases involving applicants convicted on the basis of former Article 8 of the Anti-terrorism Law would be closed upon confirmation that the necessary individual measures had been taken;

Noting with satisfaction that the applicant’s conviction under former Article 8 of the anti-terrorism law No. 3713 and the consequences of this conviction for the applicant have been fully erased by decision of Ankara State Security Court No. 1 on 25 March 2003, deleting the applicant’s conviction from his judicial records ;

Noting furthermore the general measures taken by the respondent State to avoid new violations of the same kind as the one found in this case, notably the abrogation of former Article 8 of the Anti-terrorism Law No. 3713 on 17 July 2003 (see for details Resolution ResDH(2006)79 adopted on 20 December 2006 in 32 cases against Turkey concerning freedom of expression following convictions under former Article 8 of the Law against Terrorism No. 3713),

      DECLARES, after having examined the measures taken by the Government of Turkey, that it has exercised its functions under former Article 32 of the Convention in this case.

Section 1.2

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution ResDH(2007)1711

Execution of the judgments of the European Court of Human Rights
in 13 cases (see Appendix) concerning the administration’s delay
in payment of additional compensation for expropriation against Turkey

(Applications No. (see Appendix), judgments of 21 July 2005, final on 30 November 2005)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter referred to as “the Convention” and “the Court”);

Having regard to the judgments in these cases, transmitted once they had become final by the Court to the Committee on 30 November 2005, and since, at this date, the applicants were informed that their requests for a re-hearing before the Grand Chamber had been dismissed;

Recalling that the violation of the Convention found by the Court in these cases concerns delays in payment of additional compensation for expropriation and insufficient applicable rate of default interest (violation of Article 1, Protocol No. 1);

Having invited the government of the respondent state to inform the Committee of the measures taken in order to comply with Turkey’s obligation under Article 46, paragraph 1, of the Convention to abide by the judgments;

Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgments, the adoption by the respondent state, where appropriate, of

      - individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and

      - general measures preventing, similar violations;

Having examined the measures taken by the respondent state to that effect;

Whereas during the examination of the cases by the Committee of Ministers, the government of the respondent state recalled that measures had already been taken to avoid new violations of the same kind (see Resolutions ResDH(2001)70 and ResDH(2001)71 in the cases Aka and Akkuş against Turkey, respectively), in particular through the entry into force on 1 January 2000 of Law No. 4489, which brought the statutory rate of default interest into line with the annual rediscount rate applied by the Turkish Central Bank to short-term debts (the latter rate is fixed and permanently reviewed, taking into account particularly the country’s inflation rate), and indicated that the Court’s judgments had been sent out to the authorities directly concerned;

Recalling that no individual measure is necessary and that, the European Court did not awarded any just satisfaction in respect of Article 41 for the pecuniary damage sustained;

      DECLARES that it has exercised its functions under Article 46, paragraph 2, of the Convention in these cases and DECIDES to close their examination.

Appendix to Resolution ResDH(2007)17

Details of cases

Application No.

Name

28171/02

Fadıl YILMAZ

28176/02

Mustafa and Mehmet TOPRAK

28177/02

Mustafa TOPRAK (No. 1)

28178/02

Mustafa TOPRAK (No. 2)

28182/02

Mehmet YİĞİT (No. 2)

28183/02

Hüseyin YİĞİT

28184/02

Mehmet YIGIT (No. 3)

28185/02

Mehmet YİĞİT (No. 4)

28186/02

Salih YİĞİT (No. 1)

28187/02

Salih YİĞİT (No. 2)

28188/02

Mehmet YİĞİT (No. 5)

28190/02

Mehmet Sait KENDIRCI

28192/02

Seyit Ahmet ÖZDEMIR and others

Section 1.4

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution ResDH(2007)1812

Execution of the judgment of the European Court of Human Rights
Mocanu against Romania

(Application No. 56489/00, judgement of 24 May 2006, friendly settlement)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter referred to as “the Convention” and “the Court”);

Having regard to the final judgment in this case, transmitted the same day by the Court to the Committee;

Recalling that the admissible applicant’s complaints in this case concern: alleged ill-treatment and lack of effective investigation in this respect (complaint under Article 3); right to respect for correspondence (complaint under Article 8); right of individual application (complaint under Article 34); right to an effective remedy (complaint under Article 13 combined with Article 3 and Article 8);

Whereas in this case the Court, after having taken formal note of friendly settlement reached by the Government of the respondent state and the applicant, and having been satisfied that the settlement was based on respect for human rights as defined in the Convention or its Protocols, decided, unanimously, to strike this case out of its list and took note of the parties’ undertaking not to request a re-hearing of the case before the Grand Chamber;

Whereas under the above-mentioned friendly settlement it was agreed that the government of the respondent State would pay the applicant a total of 17 000 euros, within three months as from the notification of the judgment;

Recalling that the striking-out of a case which has been declared admissible is effected by means of a judgment which the President forwards to the Committee of Ministers once it has become final in order to allow it to supervise, in accordance with Article 46, paragraph 2, of the Convention, the execution of any undertakings which may have been attached to the discontinuance, friendly settlement or solution of the matter;

Having invited the government of the respondent state to inform the Committee of the measures taken in order to comply with Romania’s obligation under Article 46, paragraph 1, of the Convention to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that on 22 August 2006, within the time-limit agreed to under the terms of the friendly settlement, the Government of the respondent state had paid the applicant the sum agreed in the friendly settlement and that no other measure was required in the present case to conform to the Court’s judgment;

Having examined the information supplied by the Government of Romania,

      DECLARES that it has exercised its functions under Article 46, paragraph 2, of the Convention with respect to the commitments subscribed to in this case and DECIDES to close its examination.

Section 1.4

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution ResDH(2007)1913

Execution of the judgment of the European Court of Human Rights
Çalışlar against Turkey

(Application No. 60261/00, judgment of 17 January 2006 – Friendly settlement)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter referred to as “the Convention” and “the Court”);

Having regard to the final judgment in this case, transmitted by the Court to the Committee on 17 January 2006;

Recalling that the complaint declared admissible by the Court in this case concerned an allegedly unjustified interference with the applicant’s freedom of expression on account of criminal proceedings against him under former Article 8 of the Law against terrorism as well as a breach of his right to the peaceful enjoyment of his possessions due to the seizure of the book (complaints under Articles 10 and 8);

Whereas the Court, after having taken formal note of a friendly settlement reached by the government of the respondent state and the applicant, and having been satisfied that the settlement was based on respect for human rights as defined in the Convention or its Protocols, decided unanimously to strike the case out of its list and took note of the parties’ undertaking not to request a re-hearing of the case before the Grand Chamber;

Whereas under the above-mentioned friendly settlement it was agreed that the Government of Turkey would pay the applicant, the global sum of € 4 000 to be converted into Turkish lira at a rate applicable on the date of payment and that, failing which, simple interest at a rate equal to the marginal lending rate of the European Central Bank plus three percentage points should be payable from the expiry of the above-mentioned three months until settlement, within three months as from the notification of the judgment;

Recalling that the Rules of the Court provide that the striking-out of a case which has been declared admissible shall be effected by means of a judgment which the President shall forward to the Committee of Ministers once it has become final in order to allow it to supervise, in accordance with Article 46, paragraph 2, of the Convention, the execution of any undertakings which may have been attached to the discontinuance, friendly settlement or solution of the matter;

Having regard to the Rules adopted by the Committee of Ministers concerning the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that on 11 April 2006, within the time-limit agreed to under the terms of the friendly settlement, the Government of the respondent state had paid the applicant the sum agreed in the friendly settlement and that no other measure was required in the present case to conform to the Court’s judgment,

Recalling that, as regard the applicant’s complaints declared admissible in this case, the Committee of Ministers has been supervising since 1998 the execution of several judgments of the Court (in particular the judgment Inçal of 9 June 1998) finding in particular a violation of Article 10 of the Convention on account of unjustified interferences with freedom of expression;

Whereas, in this connection, the Turkish authorities informed the Committee of Ministers that they were drafting and adopting new individual and general measures in order fully to remedy the consequences for the applicants of the violations found and to prevent new violations similar to those already found in these cases (see Interim Resolutions ResDH(2001)106 and ResDH(2004)38),

      DECLARES, having examined the information supplied by the Government of Turkey, that it has exercised its functions under Article 46, paragraph 2, of the Convention with respect to the commitments subscribed to in this case.

Section 1.4

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution ResDH(2007)20
concerning the judgments of the European Court of Human Rights
delivered between 11 July 2002 and 2 October 2003 (Friendly settlements)
in 6 cases against Turkey (see Appendix) relating to freedom of expression

(Adopted by the Committee of Ministers on 28 February 2007,
at the 987th meeting of the Ministers’ Deputies)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as “the Convention”),

Having regard to the final judgments of the European Court of Human Rights in the cases listed in the Appendix to this Resolution, which were delivered between 11 July 2002 and 2 October 2003 and transmitted at the same dates to the Committee of Ministers under Article 46 of the Convention;

Recalling that these cases originated in applications (see Appendix) against Turkey, lodged between 2 November 1994 and 20 May 1997 by Turkish nationals, and that the Court, seised of the cases under Article 5, paragraph 2, of Protocol No. 11, declared admissible the complaints related, in particular, to infringements of the applicants’ right to freedom of expression on account of their prosecution under Article 8 of the Prevention of Terrorism Act;

Whereas in its judgments concerning these cases the Court, having taken formal note of friendly settlements reached by the government of the respondent state and the applicants, and having been satisfied that the settlements were based on respect for human rights as defined in the Convention or its Protocols, decided unanimously to strike these cases out of its list and took note of the parties’ undertaking not to request a re-hearing of the cases before the Grand Chamber;

Whereas under the friendly settlements it was agreed that the Government of Turkey would pay the applicants certain sums (see Appendix), within three months as from the notification of the judgments;

Whereas under the friendly settlements the Government of Turkey:

      - noted that the Court's rulings against Turkey in cases involving prosecutions under Article 8 of the Prevention of Terrorism Act relating to freedom of expression showed that Turkish law and practice urgently needed to be brought into line with the Convention's requirements under Article 10 and that this was also reflected in the interferences complained of;

      - undertook to implement all necessary reform of domestic law and practice in this area, as already outlined in the National Programme of 24 March 2001;

      - also referred to the individual measures set out in the Interim Resolution adopted by the Committee of Ministers on 23 July 2001 (ResDH (2001)106), which they would apply to the circumstances of cases such as these;

Recalling that the Rules of the Court provide that the striking-out of a case which has been declared admissible shall be effected by means of a judgment which the President shall forward to the Committee of Ministers once it has become final in order to allow it to supervise, in accordance with Article 46, paragraph 2, of the Convention, the execution of any undertakings which may have been attached to the discontinuance, friendly settlement or solution of the matter;

Having regard to the Rules adopted by the Committee of Ministers concerning the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit agreed to under the terms of the friendly settlement, the government of the respondent state had paid the applicants the sums agreed in the friendly settlements;

Recalling that in its Interim Resolution (2004)38 of 2 June 2004 the Committee of Ministers decided that its examination of those cases involving applicants convicted on the basis of former Article 8 of the Anti-terrorism Law would be closed upon confirmation that the necessary individual measures had been taken;

Having examined the information provided by Turkey concerning the individual and general measures taken in order to conform to the undertakings subscribed in these judgments (see Appendix);

      DECLARES, after having examined the information supplied by the Government of Turkey, that the Committee of Ministers has exercised its functions under Article 46, paragraph 2, of the Convention with respect to the commitments subscribed to in these cases.

Appendix to Resolution ResDH(2007)20

      Introductory case summary

These cases all relate in particular to alleged unjustified interferences with the applicants' freedom of expression, on account of their conviction by State Security Courts, under former Article 8 of Anti-Terrorism Law, following public speeches or the publication of articles, drawings and books (complaints under Article 10 and 6, paragraph 1).

      I. Payment of just satisfaction and individual measures

a) Details of sums agreed to in the friendly settlements

Case

Application No.

Date of judgment

Sum

Date of payment

Özler

25753/94

11/07/02

7 000 €

09/10/02

Bayrak

27307/95

03/09/02

11 000 €

17/10/02

Caralan

27529/95

25/09/03

9 500 €

16/12/03

Zarakolu Aysenur No. 1

37059/97

02/10/03

5 000 €

30/12/03

Zarakolu Aysenur No. 2

37061/97

02/10/03

5 000 €

30/12/03

Zarakolu Aysenur No. 3

37062/97

02/10/03

5 000 €

30/12/03

b) Individual measures

As regards the undertaking to erase the consequences of the violations for the applicants, the government underlines that:

      - Following the abrogation of Article 8 of the Anti-Terrorism Law No. 3713 on 19 July 2003 by the Law No. 4928, any information on criminal records was erased ex officio by the General Directorate of Judicial Records and Statistics of Ministry of Justice (in conformity with Article 8 of the Law on Criminal Records, as amended by Law No. 4778 of 2 January /2003);

      - As a result of the abrogation of Article 8 of Anti-terrorism Law and of the erasure of the applicants’ convictions from their criminal records, the restrictions on applicants’ civil and political rights are also automatically lifted;

      - Furthermore, erasure of convictions, including all their consequences, is possible, under certain conditions, in cases related to freedom of expression in general, following the entry into force on 10 February 2003 of Law No. 4809 on suspension of proceedings and sentences concerning crimes committed through the press.

      II. General measures

Complaints under Article 10 of the Convention relating to convictions under former Article 8 of the Law against Terrorism
The provision at the origin of the applicants’ convictions in all these cases was abrogated on 19 July 2003 by the Law No. 4928, in the framework of an extensive programme of reforms aimed at bringing Turkish law in conformity with the Convention’s requirements concerning freedom of expression (see Interim Resolution ResDH(2004)38, for a more comprehensive overview of the general measures adopted or still under way as regards all relevant provisions on freedom of expression).

Section 1.4

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution ResDH(2007)2114

Execution of the judgment of the European Court of Human Rights
Özkan Kiliç against Turkey

(Applications Nos. 27209/95 & 27211/95, judgment of 26 November 2002 – Friendly settlement)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter referred to as “the Convention” and “the Court”);

Having regard to the final judgment in this case, transmitted by the Court to the Committee on 26 November 2002;

Recalling that the complaints declared admissible by the Court in this case concerned an allegedly unjustified interference with the applicant's freedom of expression on account of his convictions, in 1993 and 1994, under Article 6 and former Article 8 of the Anti-terrorism Law No. 3713 (complaint under Article 10) as well as allegations of unfairness of the criminal proceedings which led to his convictions, on account of the presence of a military judge in the security court (complaint under Article 6);

Whereas the Court, after having taken formal note of a friendly settlement reached by the government of the respondent state and the applicant, and having been satisfied that the settlement was based on respect for human rights as defined in the Convention or its Protocols, decided unanimously to strike the case out of its list and took note of the parties’ undertaking not to request a re-hearing of the case before the Grand Chamber;

Whereas under the friendly settlement the Government of Turkey:

      - noted that the Court's rulings against Turkey in cases involving prosecutions under the Prevention of Terrorism Act relating to freedom of expression showed that Turkish law and practice urgently needed to be brought into line with the Convention's requirements under Article 10 of the Convention and that this was also reflected in the interferences underlying the facts of the present case;

      - undertook to this end to implement all necessary reforms of domestic law and practice in this area, as already outlined in the National Programme of 24 March 2001;

      - undertook to pay the applicant, the global sum of 50 000 French francs [7 622.45 €], within three months as from the notification of the judgment15;

      - referred also to the individual measures set out in Interim Resolution adopted by the Committee of Ministers of the Council of Europe on 23 July 2001 (ResDH(2001)106), which they would apply to the circumstances of cases such as this one;

Recalling that the Rules of the Court provide that the striking-out of a case which has been declared admissible shall be effected by means of a judgment which the President shall forward to the Committee of Ministers once it has become final in order to allow it to supervise, in accordance with Article 46, paragraph 2, of the Convention, the execution of any undertakings which may have been attached to the discontinuance, friendly settlement or solution of the matter;

Having regard to the Rules adopted by the Committee of Ministers concerning the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that on 6 February 2003, within the time-limit agreed to under the terms of the friendly settlement, the Government of the respondent state had paid the applicant the sum agreed in the friendly settlement, that all the consequences of the convictions at issue had been erased and that no other measure was required in the present case to comply with the Court’s judgment,

Recalling that, as regards the applicant’s complaints declared admissible in this case, the Committee of Ministers has been supervising since 1998 the execution of several judgments of the Court (in particular the Inçal judgment of 9/06/1998) finding notably a violation of Article 10 of the Convention on account of unjustified interferences with freedom of expression;

Whereas, in this connection, the authorities of Turkey informed the Committee of Ministers that they were drafting and adopting new individual and general measures in order to fully remedy the consequences for the applicants of the violations found and to prevent new violations similar to those already found in these cases (see Interim Resolutions ResDH(2001)106 and ResDH(2004)38),

      DECLARES, having examined the information supplied by the Government of Turkey, that it has exercised its functions under Article 46, paragraph 2, of the Convention with respect to the commitments subscribed to in this case.

Section 1.4

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution ResDH(2007)2216

Execution of the judgment of the European Court of Human Rights
Yalçin Kuçuk (No. 2) against Turkey

(Application No. 56004/00, judgment of 2 March 2006 – Friendly settlement)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter referred to as “the Convention” and “the Court”);

Having regard to the final judgment in this case, transmitted by the Court to the Committee on 2 March 2006;

Recalling that the complaints declared admissible by the Court in this case concerned an allegedly unjustified interference with the applicant's freedom of expression on account of his conviction, in 1999, under Article 169 of the Criminal Code (complaint under Article 10) as well as allegations of unfairness of the criminal proceedings which led to his conviction, on account of the presence of a military judge in the state security court and the failure to disclose to the applicant the written opinion of the prosecutor general before the Court of Cassation (complaints under Article 6);

Whereas the Court, having taken formal note of a friendly settlement reached by the government of the respondent state and the applicant, and having been satisfied that the settlement was based on respect for human rights as defined in the Convention or its Protocols, decided unanimously to strike the case out of its list and took note of the parties’ undertaking not to request a re-hearing of the case before the Grand Chamber;

Whereas under the above-mentioned friendly settlement it was agreed that the Government of Turkey would pay the applicant, the global sum of 6 450 €, within three months as from the notification of the judgment17;

Recalling that the Rules of the Court provide that the striking-out of a case which has been declared admissible shall be effected by means of a judgment which the President shall forward to the Committee of Ministers once it has become final in order to allow it to supervise, in accordance with Article 46, paragraph 2, of the Convention, the execution of any undertakings which may have been attached to the discontinuance, friendly settlement or solution of the matter;

Having regard to the Rules adopted by the Committee of Ministers concerning the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that on 29 May 2006, within the time-limit agreed to under the terms of the friendly settlement, the Government of the respondent state had paid the applicant the sum agreed in the friendly settlement and that no other measure was required in the present case to comply with the Court’s judgment,

Recalling that, as regards the applicant’s complaints declared admissible in this case, the Committee of Ministers has been supervising since 1998 the execution of several judgments of the Court (in particular the Inçal judgment of 9 June 1998) finding in particular a violation of Article 10 of the Convention on account of unjustified interferences with freedom of expression;

Whereas, in this connection, the authorities of Turkey informed the Committee of Ministers that they were drafting and adopting new individual and general measures in order to fully remedy the consequences for the applicants of the violations found and to prevent new violations similar to those already found in these cases (see Interim Resolutions ResDH(2001)106 and ResDH(2004)38),

Declares, having examined the information supplied by the Government of Turkey, that it has exercised its functions under Article 46, paragraph 2, of the Convention with respect to the commitments subscribed to in this case.

Section 1.4

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution ResDH(2007)2318

Execution of the judgment of the European Court of Human Rights
Kamil T. Sürek gainst Turkey

(Application No. 34686/97, judgment of 14 June 2001 – Friendly settlement)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter referred to as “the Convention” and “the Court”);

Having regard to the final judgment in this case, transmitted by the Court to the Committee on 14 June 2001;

Recalling that the complaints declared admissible by the Court in this case concerned an allegedly unjustified interference with the applicant's freedom of expression on account of his conviction, in 1995, under Article 7 of the Anti-terrorism Law No. 3713 (complaint under Article 10) as well as allegations of unfairness of the criminal proceedings which led to his conviction, on account of the presence of a military judge in the state security court (complaint under Article 6);

Whereas the Court, having taken formal note of a friendly settlement reached by the government of the respondent state and the applicant, and having been satisfied that the settlement was based on respect for human rights as defined in the Convention or its Protocols, decided unanimously to strike the case out of its list and took note of the parties’ undertaking not to request a re-hearing of the case before the Grand Chamber;

Whereas under the friendly settlement the Government of Turkey undertook to pay the applicant the global sum of 4 300 US Dollars, at the date of notification of the judgment;

Recalling that the Rules of the Court provide that the striking-out of a case which has been declared admissible shall be effected by means of a judgment which the President shall forward to the Committee of Ministers once it has become final in order to allow it to supervise, in accordance with Article 46, paragraph 2, of the Convention, the execution of any undertakings which may have been attached to the discontinuance, friendly settlement or solution of the matter;

Having regard to the Rules adopted by the Committee of Ministers concerning the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that on 22 August 2001 the government of the respondent state had paid the applicant the sum agreed in the friendly settlement and that no other measure was required in the present case to comply with the Court’s judgment,

Recalling that, as regards the applicant’s complaints declared admissible in this case, the Committee of Ministers is supervising since 1998 the execution of several judgments of the Court (in particular the Inçal judgment of 9 June 1998) finding in particular a violation of Article 10 of the Convention on account of unjustified interferences with freedom of expression;

Whereas, in this connection, the Turkish authorities informed the Committee of Ministers that they were drafting and adopting new individual and general measures in order to remedy fully the consequences for the applicants of the violations found and to prevent new violations similar to those already found in these cases (see Interim Resolutions ResDH(2001)106 and ResDH(2004)38),

Declares, having examined the information supplied by the Government of Turkey, that it has exercised its functions under Article 46, paragraph 2, of the Convention with respect to the commitments subscribed to in this case.

Section 1.4

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution ResDH(2007)2419

Execution of the judgment of the European Court of Human Rights
Ahmet Turan Demir against Turkey

(Application N. 72071/01, judgment of 22 December 2005 – Friendly settlement)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter referred to as “the Convention” and “the Court”);

Having regard to the final judgment in this case, transmitted by the Court to the Committee on 22 December  2005;

Recalling that the complaint declared admissible by the Court in this case concerned an allegedly unjustified interference with the applicant's freedom of expression on account of his conviction in 2000 under former Article 8 of the Anti-terrorism Law (No. 3713) following a public speech he made (complaint under Article 10);

Whereas the Court, having taken formal note of a friendly settlement reached by the government of the respondent state and the applicant, and having been satisfied that the settlement was based on respect for human rights as defined in the Convention or its Protocols, decided unanimously to strike the case out of its list and took note of the parties’ undertaking not to request a re-hearing of the case before the Grand Chamber;

Whereas under the friendly settlement it was agreed that the Government of Turkey would pay the applicant, the global sum of € 5 500, to be converted into Turkish lira at a rate applicable on the date of payment and that, failing which, simple interest at a rate equal to the marginal lending rate of the European Central Bank plus three percentage points should be payable from the expiry of the above-mentioned three months until settlement, within three months as from the notification of the judgment;

Recalling that the Rules of the Court provide that the striking-out of a case which has been declared admissible shall be effected by means of a judgment which the President shall forward to the Committee of Ministers once it has become final in order to allow it to supervise, in accordance with Article 46, paragraph 2, of the Convention, the execution of any undertakings which may have been attached to the discontinuance, friendly settlement or solution of the matter;

Having regard to the Rules adopted by the Committee of Ministers concerning the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that on 21 March 2006, within the time-limit agreed to under the terms of the friendly settlement, the government of the respondent state had paid the applicant the sum agreed in the friendly settlement and that no other measure was required in the present case to comply with the Court’s judgment,

Recalling that, as regards the applicant’s complaints declared admissible in this case, the Committee of Ministers has been supervising since 1998 the execution of several judgments of the Court (in particular the Inçal judgment of 9 June 1998) finding in particular a violation of Article 10 of the Convention on account of unjustified interferences with freedom of expression;

Whereas, in this connection, the Turkish authorities informed the Committee of Ministers that they were drafting and adopting new individual and general measures in order to fully remedy the consequences for the applicants of the violations found and to prevent new violations similar to those already found in these cases (see Interim Resolutions ResDH(2001)106 and ResDH(2004)38),

Declares, having examined the information supplied by the Government of Turkey, that it has exercised its functions under Article 46, paragraph 2, of the Convention with respect to the commitments subscribed to in this case.

1 Adopted by the Committee of Ministers on 14 February 2007 at the 987th meeting of the Ministers’ Deputies

2 Adopted by the Committee of Ministers on 14 February 2007 at the 987th meeting of the Ministers’ Deputies

3 Adopted by the Committee of Ministers on 28 February 2007 at the 987th meeting of the Ministers’ Deputies

4 Adopted by the Committee of Ministers on 28 February 2007 at the 987th meeting of the Ministers’ Deputies

5 Adopted by the Committee of Ministers on 28 February 2007 at the 987th meeting of the Ministers’ Deputies

6 Adopted by the Committee of Ministers on 28 February 2007 at the 987th meeting of the Ministers’ Deputies

7 Adopted by the Committee of Ministers on 28 February 2007 at the 987th meeting of the Ministers’ Deputies

8 Adopted by the Committee of Ministers on 28 February 2007 at the 987th meeting of the Ministers’ Deputies

9 Adopted by the Committee of Ministers on 28 February 2007 at the 987th meeting of the Ministers’ Deputies

10 Adopted by the Committee of Ministers on 28 February 2007 at the 987th meeting of the Ministers’ Deputies

11 Adopted by the Committee of Ministers on 28 February 2007 at the 987th meeting of the Ministers’ Deputies

12 Adopted by the Committee of Ministers on 28 February 2007 at the 987th meeting of the Ministers’ Deputies

13 Adopted by the Committee of Ministers on 28 February 2007 at the 987th meeting of the Ministers’ Deputies

14 Adopted by the Committee of Ministers on 28 February 2007 at the 987th meeting of the Ministers’ Deputies

15 See details in the judgment.

16 Adopted by the Committee of Ministers on 28 February 2007 at the 987th meeting of the Ministers’ Deputies

17 See details in the judgment.

18 Adopted by the Committee of Ministers on 28 February 2007 at the 987th meeting of the Ministers’ Deputies

19 Adopted by the Committee of Ministers on 28 February 2007 at the 987th meeting of the Ministers’ Deputies



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