CM/Del/OJ/DH(2009)1065 Section 4.3 PUBLIC .. .. 30 September 2009
1065th meeting (DH), 15-16 September 2009
- Annotated Agenda1
Public information version
SECTION 4 - CASES RAISING SPECIFIC QUESTIONS
(INDIVIDUAL MEASURES, MEASURES NOT YET DEFINED OR SPECIAL PROBLEMS)
For each case or group of cases, the Deputies adopted the decision presented in a ruled box.
SUB-SECTION 4.3 – SPECIAL PROBLEMS
- 200 cases against the Russian Federation
- 200 cases concerning the failure or substantial delay by the administration or state companies in abiding by final domestic judgments
(See Appendix for the list of cases in the Timofeyev group)
CM/Inf/DH(2006)19rev2, CM/Inf/DH(2006)19rev3C, M/Inf/DH(2006)45
Interim Resolution CM/ResDH(2009)43
All these cases concern violations of the applicants' right to effective judicial protection due to the administration's failure to comply with final judicial decisions in the applicants' favour including decisions ordering welfare payments, pension increases, disability allowance increases, etc. (violations of Article 6§1 and of Article 1 of Protocol No. 1).
Certain cases also concern the lack of an effective remedy in respect of the applicants' arguable claim for compensation for late enforcement of the domestic judgments in their favour (violations of Article 13).
Individual measures: The European Court awarded just satisfaction to all applicants in respect of non-pecuniary damage sustained. In most of the cases, the domestic judgments were enforced. In the other cases, the authorities provided information on the enforcement of domestic court decisions.
• This information is being assessed by the Secretariat.
1) Other fora of reflection within the Council of Europe The European Commission for the Efficiency of Justice (CEPEJ) has since 2005 been conducting a bilateral project with the Russian authorities with a view to examining the situation and finding adequate solutions. A report by the experts issued on 9/12/2005 (CEPEJ(2005)8) summarised the problems at the basis of non-enforcement of judicial decisions and made a number of proposals in this field. This bilateral project is continuing in 2006.
2) Applicant's submission: On 27/01/2006, the Secretariat received, in the case of OOO Rusatommet, an applicant's submission drawing the Committee's attention to the shortcomings of the new law amending the Budgetary Code, the Code of Civil Procedure, the Arbitration Code and the Federal Law on Enforcement proceedings recently adopted by the Russian Parliament. The Law was intended to clarify the enforcement procedure for domestic judicial decisions at the expense of the funds of Federal Treasury. The applicant's submission was transmitted for comments to the Russian authorities on 27/01/2006.
3) Examination of these cases by the Committee of Ministers:
a. Memorandum prepared by the Secretariat (CM/Inf/DH(2006)19 revised 2): The memorandum points at a number of outstanding problems and proposes a number of avenues that the Russian authorities may consider in their ongoing search for a comprehensive resolution of this problem. The main avenues proposed are:
- Improvement of budgetary procedures and practical implementation of budget decisions;
- Ensuring effective compensation for delays (indexation, default interest, specific damages, possibility of reinforcing the obligation to pay in case of unjustified delays);
- Increased recourse to judicial remedies;
- Ensuring effective liability of civil servants for non-enforcement;
- Possible introduction of compulsory execution, including seizure of state assets;
- Possible reconsideration of the bailiffs' role and increasing their efficiency.
The latest version of the Memorandum (CM/Inf/DH(2006)19 revised 2) was declassified at the 976th meeting (October 2006).
b. Follow-up to the Memorandum-High level Round Table in Strasbourg: Given the complexity of this issue, it was decided at the 976th meeting (October 2006), to hold a high-level Round Table involving representatives of the Russian Supreme Courts, the Ministries and Federal services concerned and experts of the Council of Europe, to assess the first results of the new enforcement procedure and to establish priorities for further reforms. This Round Table was thus organised on 30-31/10/2006 in Strasbourg by the Department for the Execution of Judgments in co-operation with the European Commission for the Efficiency of Justice (CEPEJ) and the Russian authorities. The thorough and constructive discussions have identified the main outstanding problems and led to a number of commonly agreed proposals for further reforms to ensure the state's effective compliance with judicial decisions.
The press release and conclusions of the Round Table appear on the web site of the Execution Department (http://wcd.coe.int/ViewDoc.jsp?id=1057949&BackColorInternet=F5CA75&BackColorIntranet=F5CA75&BackColorLogged=A9BACE&ShowBanner=no&Target=_self) and were made available to the Deputies in CM/Inf/DH(2006)45 at the 982nd meeting.
c. Updated version of Memorandum CM/Inf/DH(2006)19 revised 3: In a follow-up to the Round Table mentioned above, the Russian authorities have provided the answers of the competent authorities, i.e. the Supreme Courts of the Russian Federation, the Ministry of Finance, the Federal Treasury, the Federal Bailiffs' Office and the General Prosecutor's Office, to the issues raised in Memorandum CM/Inf/DH(2006)19 revised 2. This information gave rise to the updated version of the Memorandum issued at the 997th meeting (June 2007).
d. Multilateral Round Table in Strasbourg: On 21 and 22 June 2007 a high-level Round Table was organised in Strasbourg by the Department for the Execution of Judgments of the European Court of Human Rights in the context of the Execution Assistance programme, which involved representatives of the Council of Europe and the authorities of different states confronted with this issue, to discuss solutions to the structural problems of non-enforcement of domestic court decisions. The constructive exchanges between different participants led to the adoption of Conclusions in which the main problems underlying non-enforcement were identified and a range of possible solutions to be envisaged by the authorities while elaborating their action plans were proposed. These Conclusions may be found on the following web site
The Russian authorities have recently provided information on the issues raised in the Memorandum and the Conclusions mentioned above. This information is currently being assessed by the Secretariat.
4) Interim Resolution CM/ResDH(2009)43 adopted at the 1051st DH meeting (March 2009): The Committee of Ministers:
- called upon the Russian authorities rapidly to translate into concrete actions the will expressed at the highest political level to combat non-enforcement and delayed enforcement of domestic judicial decisions and to set up to that end effective domestic remedies either through rapid adoption of the constitutional law mentioned above or through amendment of the existing legislation in line with the Convention's requirements;
- urged the Russian authorities to give priority to resolving outstanding non-enforcement issues in the problem areas identified above so as rapidly to achieve concrete and visible results, thus limiting the risk of new violations of the Convention and of further applications before the Court;
- encouraged the Russian authorities to continue their efforts in the implementation of the initiated reforms so as to ensure full and timely execution of domestic courts decisions, in particular through:
- ensuring better coordination between different authorities responsible for the execution of domestic judicial decisions so as to avoid the risk that claimants are caught in a vicious circle in which different authorities send them back and forth;
- further improving the rules governing all execution procedures, including appropriate role for bailiffs and judicial review;
- ensuring the existence of appropriate general regulations and procedures at federal and local level for the implementation of the authorities' financial obligations;
- further developing recourse to different remedies already provided by Russian legislation so as to ensure their implementation in case of non-enforcement or belated enforcement of judicial decisions with sufficient certainty as required by the Convention;
- strengthening state liability for non-execution as well as the individual responsibility (disciplinary, administrative and criminal where appropriate) of civil servants.
At the 1059th meeting (June 2009), the Russian authorities provided information on a number of measures which were being taken following the interim resolution. This information is being assessed by the Secretariat.
• Further information is awaited on the follow-up given by the authorities to the interim resolution.
5) Pilot judgment delivered in the case of Burdov No. 2: On 15/01/2009 the Court delivered a pilot judgment which became final on 4/05/2009. In this judgment, the Court required in particular the respondent State to introduce a remedy to secure effective redress for the violations of the Convention on account of the State authorities' prolonged failure to comply with judicial decisions delivered against the State or its entities. The examination of general measures in this respect is pursued in the framework of the execution of this pilot judgment (for more details see Section 2.1).
6) Publication and dissemination: Almost all judgments in this group of cases are regularly published and disseminated to all competent authorities, i.e. to all territorial departments of the Federal Bailiff Service, of the Pension Fund, of the Supreme Court of the Russian Federation, of the General Prosecutor's Office, of the Federal Treasury, together with circular letters and appropriate instructions with a view to preventing new similar violations.
1. took note of the information provided by the Russian authorities on the measures which are being taken in response to the pilot judgment delivered by the European Court in the case Burdov No 2;
2. noted with interest the draft laws introducing a new remedy to ensure effective compensation for damages caused by non-execution or delayed execution of judicial decisions, as well as the ongoing settlement of some 500 cases involving 1100 applicants whose applications predate the delivery of the pilot judgment;
3. called upon all authorities of the Russian Federation to give priority to the adoption of the aforementioned drafts laws in order to make the new remedy available within the time-limits set by the Court;
4. decided to resume consideration of these cases at their 1072nd meeting (December 2009) (DH), to assess the progress achieved in the implementation of the above measures on the basis of a draft Interim Resolution to be prepared by the Secretariat;
5. decided to examine the adoption of other general measures necessary to prevent violations due to non-execution or delayed execution of domestic judicial decisions at the latest at their DH meeting in March 2010, in the light of further information to be provided by the Russian authorities.
- 272 cases against Turkey
25781/94 Cyprus against Turkey, judgment of 10/05/01 – Grand Chamber
CM/Inf/DH(2008)6, CM/Inf/DH(2007)10/1rev, CM/Inf/DH(2007)10/3rev, CM/Inf/DH(2009)39, CM/Inf/DH(2008)6/5
Interim Resolutions ResDH(2005)44 and CM/ResDH(2007)25
The case relates to the situation that has existed in northern Cyprus since the conduct of military operations there by Turkey in July and August 1974 and the continuing division of the territory of Cyprus. The European Court held that the matters complained of by Cyprus in its application entailed Turkey's responsibility under the European Convention on Human Rights. In its judgment, it held that there had been 14 violations of the Convention, grouped by the Committee of Ministers into four categories:
- the question of missing persons,
- the living conditions of Greek Cypriots in northern Cyprus,
- the rights of Turkish Cypriots living in northern Cyprus,
- the question of the homes and property of displaced persons.
Since then, the different categories have been addressed at several times and the delegation of Turkey and other delegations have provided information which has been examined by the Committee of Ministers (for further details of the examination of this case by the Committee of Ministers, see document CM/Inf/DH(2008)6).
A Turkish translation of the judgment was published in the legal journal Yargı Mevzuatı Bülteni of 01/07/2003.
Following the measures adopted by the authorities of the respondent state with a view to complying with the present judgment, the Committee of Ministers decided to close the examination of the issues concerning the military courts, as well as those relating to the living conditions of the Greek Cypriots in northern Cyprus, as regards the secondary education, the censorship of schoolbooks and the freedom of religion (for further details see interim resolutions ResDH(2005)44 and CM/ResDH(2007)25, as well as CM/Inf/DH(2005)6/4 and CM/Inf/DH(2007)10/3rev).
For the present meeting, the Committee of Ministers decided to examine the questions of the property rights of enclaved persons and of the property rights of displaced persons (see decision adopted at the 1059th meeting, June 2009).
1) Question of missing persons (see CM/Inf/DH(2007)10/1rev)
The main outstanding matters are set out below (for more detail see the public notes for the 1013th meeting, December 2007)
- Work of the Committee on Missing Persons in Cyprus (CMP):
The delegation of Turkey has always underlined the importance of the CMP, stressing the efforts of Turkey to contribute to the work of this committee. The CMP was reactivated in 2004 and has met regularly since then. The CMP launched its Exhumation and Identification Programme in August 2006.
Since this programme was launched, the remains of 537 missing persons from both sides have been exhumed and transferred in the CMP anthropological laboratory. DNA analyses are carried out by a bi-communal team of the Cyprus Institute of Neurology and Genetics. Up to 27/07/2009, the remains of 163 persons have been identified and returned to their relatives (see the CMP activity report on www.cmp-cyprus.org). The first funerals took place in July 2007. In the meantime, the exhumation activities are pursued both in the northern and in the southern parts of Cyprus. The Turkish authorities stated that the families of missing persons might obtain certain information on the occasion of the return of their relative’s remains (in particular where the body had been found, any signs of trauma on the remains, etc.) Furthermore, anthropological and DNA reports are given to the families (letter of the Turkish authorities of 28/02/08). The anthropological report contains information in particular on the place where the remains were found. A special information unit for the families functions since 2004, within the Office of the Turkish Cypriot Member of the CMP.
The CMP’s activities are financed by donations from Turkey, Cyprus, the European Commission and from a number of other states.
The Committee has reiterated several times its evident interest in the CMP’s work and underlined the importance of preserving data and material items obtained within the framework of the Exhumation and Identification Programme. It has also reaffirmed the need for the Turkish authorities to take additional measures so that the effective investigations required by the judgment could take place (see in particular the decisions adopted since the 1035th meeting, September 2008).
- Exchange of views with the members of the CMP:
At the meeting of March 2009 (1051st meeting), the Committee had an exchange of views with the three members of the CMP on different issues relating to the execution of their mandate. At the conclusion of this exchange of views, the Committee considered that it was crucial that the current work of the CMP should be carried out under the best possible conditions and without delay. In consequence, while reaffirming that the execution of the judgment requires effective investigations, the Committee noted that these should not jeopardise the CMP’s mission. The Committee considered that the sequence of the measures to be taken within the framework of the effective investigations and carrying out of the work of the CMP should take into consideration these two essential aims. The Committee underlined in any event, the urgent need for the Turkish authorities to take concrete measures having in mind the effective investigations required by the judgment, in particular relating to the CMP’s access to all relevant information and places. In this same context, the Committee reiterated moreover the importance of preserving all the information obtained during the Programme of Exhumation and Identification.
• During the latest examination of this issue (1059th meeting, June 2009), the Committee reiterated the conclusions it reached at the end of the exchange of views with the members of the CMP. In this context, the Committee noted with interest the declaration of the Turkish authorities that they were ready to consider any request from the CMP relating to access to information and places relevant for its work. The Committee invited the Turkish authorities to keep it informed of any developments on this question and decided to resume consideration of this question at the latest at its 1072nd meeting (December 2009).
2) Specific questions concerning the property rights of the Greek Cypriots in the northern part of Cyprus (CM/Inf/DH(2009)39)
- As regards the cases of definitive departure from the north of Greek Cypriots, the Turkish authorities indicated that a new decision of the “Council of Ministers of the TRNC”, was adopted in February 2008 on the basis of the “Housing, Land distribution and Special Property Law, No. 41/77”. According to the Turkish authorities, under this decision Greek Cypriots who reside in Karpas would continue to enjoy their property after their departure from the “TRNC” as long as they continue to maintain minimal contacts with their property or/and ties with the Karpas society. It seems that permanent departure from the “TRCN” is defined according to the transfer of permanent residence from the north to the southern part of Cyprus. Several criteria are taken into account to establish intent to transfer permanent residence, such as workplace, family relations, participation in public life, financial investments, home, as well as other similar indicators (see letter b) of this decision). The Turkish authorities indicated that the requirement to keep minimal contacts is based on the necessity to ensure that the region of Karpas is not depopulated. In case that such contacts are not maintained, Greek-Cypriot residents of Karpas who had left the north will have the possibility to transfer their property to persons of their choice, providing that they start the transfer procedure within a time limit of one year from their departure from the north. Furthermore, persons definitively departing from the north would have a new possibility at present - that of applying to the “Immovable Property Commission” (established on the basis of the “Law 67/2005 on the immovable property”) in order to obtain an evaluation of their properties, with a view to receiving compensation or an exchange of property.
- As regards the inheritance rights of persons living in the south in respect of property in the north of deceased Greek Cypriots, the Turkish authorities indicated that at present such rights may be exercised without any restriction. The obligation for the heirs to start the procedure for administration of their estate situated in the north within a time limit of a year from the date of the death of their relative has been abolished. According to the new decision of the “Council of Ministers of the TRNC” of February 2008 quoted above, the inheritance rights of these persons are subjected to the regulation applicable, according to the very terms of the decision, to the “citizens of the TRNC”.
Once administration of the estate has been completed, the heirs can enjoy their property on the same terms as those who are resident in Karpas and continue to maintain minimal contact with their properties and/or links with the Karpas community. The heirs can also directly lodge an application with the “Immovable Property Commission”, with a view to obtaining compensation or an exchange of property. According to the Turkish authorities, there is no time limit for such applications to the “Commission”. They have also indicated that this “Commission” has delivered already five decisions relating to such situations (decisions Nos. 2/2006, 3/2006, 4/2006, 7/2006 and 25/2006).
• At the 1043rd meeting (December 2008) the Committee noted with satisfaction that, according to the Turkish authorities’ explanations, restrictions on the property rights of Greek Cypriots definitively leaving the northern part of Cyprus had been relaxed, as had those affecting inheritance rights of those living in the southern part of Cyprus in respect of property in the northern part belonging to deceased Greek Cypriots. The Committee also noted that the relevant regulations and the practice regarding their implementation called for a degree of clarification. The last time this question was examined (1059th meeting, June 2009), the Committee noted that additional information was provided on this question by the Turkish authorities and by the Cypriot authorities and that further clarification had also been provided during the meeting. The Committee decided to resume the consideration of this question at their 1065th meeting (September 2009) in the light of an information document to be updated by the Secretariat (CM/Inf/DH(2009)39).
3) Issues concerning the home and property of displaced persons (see CM/Inf/DH(2008)6/5)
- With regard to measures to put an end to continuing violations found by the European Court:
Following the judgment of 22/12/2005 in the Xenides-Arestis case, an “Immovable Property Commission” (IPC) was set up under “Law No. 67/2005 on the compensation, exchange or restitution of immovable property”. In its judgment in application of Article 41 in the Xenides-Arestis case, the Court found that “the new compensation and restitution mechanism, in principle, has taken care of the requirements of the decision of the Court on admissibility of 14 March 2005 and the judgment on the merits of 22 December 2005”.
However, the Court also pointed out that “the parties failed to reach an agreement on the issue of just satisfaction where, like in the case of Broniowski v. Poland (…) it would have been possible for the Court to address all the relevant issues of the effectiveness of this remedy in detail”. The Committee took note of this finding and invited the Turkish authorities regularly to provide all additional information on the functioning of the new compensation and restitution mechanism set up in the north of Cyprus, as well as on the concrete results achieved in this context.
According to the latest information available, up to 02/06/2009, the total number of requests addressed to the “IPC” had reached 395. In 326 cases, the applicants had asked for monetary compensation to the value of their property, and in 14 cases an exchange of property. The “IPC” has concluded 59 friendly settlements (in four cases they stipulate the restitution of the property at issue, in one case restitution “once the Cyprus problem has been solved”, in 52 cases compensation in the amount of the current value of the property and in 2 cases the exchange of property). The Turkish authorities underlined that in one case the “IPC” reached a decision setting the value of the property concerned in the absence of a friendly settlement and the interested person did not appeal this decision. The applicant concerned finally concluded a friendly settlement with the IPC on the basis of its decision. In another case, a friendly settlement was concluded in April 2009 with an applicant who had been successful in a judgment on the merits delivered by the European Court in January 2009. The friendly settlement provides the restitution of a plot of land of 313 715 m², as well as for the payment of compensation for other properties and for loss of use. It should be noted that in a judgment of 28/07/09, the European Court took note of this friendly settlement and decided to strike the remainder of the case out of the roll (Alexandrou against Turkey, Application No. 16162/90). The “TRNC Parliament” extended the deadline for seising the IPC until 22/12/2009.
• The Committee underlined that the European Court is currently seised of the question of the effectiveness of the mechanism of compensation, exchange and restitution established in the northern part of Cyprus and considered that the Court's conclusions on this point might be decisive for the examination of this question. It decided in consequence to resume examination of this question once the Court has pronounced itself on the matter (see decision adopted at the 1059th meeting, June 2099).
- With regard to the need for protective measures:
In February 2006 (955th meeting) the Cypriot authorities expressed their concern at the fact that displaced persons’ property was being affected either by transfers of title or by construction work.
Whilst underlining the necessity not to interfere or in any way prejudge the assessment the Court would make in the judicial process before it in the Xenides-Arestis case, the Committee has regularly, since the 966th meeting (June 2006) asked for detailed and concrete information on changes and transfers of property at issue in the judgment and on the measures taken or envisaged regarding this situation (see also the Interim Resolution adopted in April 2007, CM/Res(2007)25). In December 2007 (1013th meeting), the Committee observed that the information provided by the Turkish authorities still did not answer its questions and instructed the Secretariat to update the information document on this subject – CM/Inf/DH(2006)6/5 revised so as to clarify the relevant questions with a view to full execution of the judgment.
In March 2008 (1020th meeting), the Committee took note of the questions raised in the information document updated by the Secretariat (CM/Inf/DH(2008)6/5) and invited the Turkish authorities to reply. The questions raised concern in particular:
- the different types of title deeds existing in the northern part of Cyprus;
- the real estate projects or the transfers of property as regards property “belonging to the state”;
- the conditions for attribution of new deeds to displaced Turkish-Cypriot refugees;
- the procedure for granting of planning permissions concerning property concerned by the “Law on Restitution and Compensation”.
The purpose of these questions is to allow the identification of concrete measures aimed at ensuring that awaiting the evaluation of the new restitution and compensation mechanism, the possibilities offered by this mechanism, and in particular the possibility of restitution, are preserved. It should be noted in this respect that the mechanism proposed by the Turkish authorities foresees the possibility for immediate restitution in the cases where the properties concerned “have been transferred to the state” (apart from certain exceptions). In addition, restitution “after the settlement of the Cypriot problem” does not appear feasible in the following cases:
- if improvements have been made to these properties which exceed the value of the properties at the date when they are considered to be abandoned;
- if projects envisaging improvements of such nature have been approved;
- if the properties at issue have been acquired by Turkish-Cypriot refugees.
At the subsequent examinations of this issue (September and December 2008 and March 2009), the Committee noted with regret the lack of response in respect of the above issues and urged the Turkish authorities to respond on them without further delay.
• At the most recent examination of this issue (1059th meeting, June 2009), the Committee noted the explanations provided by the Turkish authorities during the meeting that the mechanism provides the guarantees necessary to preserve all the possibilities mentioned above. The Committee considered therefore that this question merits in-depth consideration and invited the Turkish authorities to provide detailed written information on this subject in the context of the relevance and the importance of the questions raised in document CM/Inf/DH(2008)6/5 which will be further addressed at the 1065th meeting (September 2009).
- With regard to the demolition since April 2007 of several houses situated in the Karpas region - belonging to Greek Cypriots - mentioned by the Cypriot authorities (letters of 31/05/2007, 04/06/2007 and 04/07/2007):
The Turkish authorities indicated that these measures are aimed at ensuring public security as the houses in question are abandoned and represent a danger for the population. The Turkish authorities provided copies of certain provisions of the “Streets and Buildings Law of 1959” regulating the demolition of dangerous buildings. According to the most important provisions, except in case of urgency, before demolishing buildings deemed to be dangerous, the authorities have the obligation to notify their decision to the owners of the buildings concerned and to indicate to them measures aimed at repairing their property, if appropriate. If the owners do not comply with the indicated measures, the authorities may repair or demolish the building concerned. The modalities of notification are regulated by these provisions. The Turkish authorities specified that no case of demolition concerns persons having definitely left Karpas after February 1975 (see DD(2008)520).
They indicated that properties abandoned before that date are at stake here or, in few cases, properties belonging to current residents of Karpas. In the case of property abandoned before 1975, the Turkish authorities indicated that interested parties might seise the “Immovable Properties Commission” and that demolition of a property did not affect the available remedies: restitution, exchange or compensation.
• Assessment: as regards this issue, the only aspect which seems to fall within the scope of the judgment concerns the property of displaced persons. The European Court did not in fact find a violation of the Convention concerning the property rights of persons residing in Karpas. The demolition, since April 2007, of houses belonging to displaced persons, can raise separate issues relevant to the execution of the judgment if it implied an aggravation of the continuing violation of the property rights of displaced persons. It emerges from the information provided by the Turkish authorities that the remedy made available to owners whose properties were demolished is that made available to all displaced persons – i.e. the compensation, exchange and restitution mechanism set up in the northern part of Cyprus. Since the question of the effectiveness of this mechanism is currently pending before the European Court, it is advisable to follow the same approach as that adopted for the question of protective measures mentioned above. In particular, the aim is to ensure that awaiting the evaluation of the new compensation, exchange and restitution mechanism, the possibilities offered by this mechanism are preserved.
As regards the possibility of restitution of property, it emerges from the provisions of “Law No. 67/2005” which set up this mechanism, that the demolition of a building does not affect the possibility of restitution of the plot of land. Concerning the possibility of exchange of property, the current value of the property has certain influence since according to Article 8(5) the value of the property to be offered in exchange would be roughly equal to the current value of the “abandoned” property. That being said, according to the same provision, in addition to the exchange of property, interested parties will have the possibility of asking for compensation for non-pecuniary damages, as well as for loss of use. Moreover, in any event, the persons concerned may apply for compensation for their immovable property, which will be determined on the basis of the market value of the property as of 20/07/1974. They may also apply for a compensation for loss of use and for non-pecuniary damages caused by the breach to the right to respect for home.
Having regard to these considerations, it does not seem that the possibilities offered by the new compensation, exchange and restitution mechanism are affected by the demolition of such buildings. In this respect, the indication given by the Turkish authorities according to which in this case buildings are concerned which have not been maintained for more that 35 years and which are demolished due to their dangerous state, should be taken into account. As regards the issue of the fate reserved to the plots of land on which the buildings were situated, it presents similarities with the issues already raised within the framework of the protective measures, mentioned above.
Concerning the property rights of enclaved persons
1. took note of information document CM/Inf/DH(2009)39 prepared by the Secretariat ;
2. noted in this respect that a certain number of questions still need to be examined in depth; to this effect, invited the Turkish authorities to provide before 15 December 2009 a copy of the entirety of the legislation as amended and related decisions relevant for the examination of this issue, in particular the entire text of Law No. 41/77;
Concerning the property rights of displaced persons
4. recalled that the European Court is currently seised of the question of the effectiveness of the mechanism of restitution, exchange and compensation established in the northern part of Cyprus and considered that the Court’s conclusions on this point might be decisive for the examination of this question;
5. recalled that in the meantime it is important that all possibilities of settlement offered by the mechanism, in particular on restitution of property, are preserved (protective measures);
6. recalled in this context the decision adopted at their 1059th meeting (June 2009);
7. noted in this respect the information provided by the Turkish authorities at the meeting and invited them to transmit this information to the Committee in writing, highlighting in particular all legal and practical consequences of the introduction of an application before the “Immovable Property Commission” concerning restitution of property,
8. decided to resume consideration of this issue at their 1072nd meeting (December 2009) (DH), in the light of the information provided.
46347/99 Xenides-Arestis, judgments of 22/12/2005, final on 22/03/2006 and of 07/12/2006, final on 23/05/2007
Interim Resolution CM/ResDH(2008)99
The case concerns the violation of the applicant’s right to respect for her home (situated in Famagusta) (continuing violation of Article 8) due to the denial since 1974 of access to her property situated in the northern part of Cyprus and consequent loss of control thereof (continuing violation of Article 1 of Protocol No. 1).
The European Court found that the violation of the applicant's rights guaranteed by Articles 8 and 1 Protocol No. 1 originates in a widespread problem affecting large numbers of people and makes reference to the large number of similar cases currently pending before it. The Court therefore considered “that the respondent State must introduce a remedy, which secures genuinely effective redress for the Convention violations identified in the instant judgment in relation to the present applicant as well as in respect of all similar applications pending before the Court, in accordance with the principles for the protection of the rights laid down in Articles 8 of the Convention and 1 of Protocol No. 1 and in line with its admissibility decision of 14 March 2005.” The Court further stated that such a remedy should be available within three months from the date on which the present judgment would be delivered, that is 22/03/2006, and that redress should occur three months thereafter, that is 22/06/2006.
1) Just satisfaction: In its judgment on the application of Article 41 of 07/12/2006, the European Court awarded the applicant 800 000 euros in respect of pecuniary damage, 50 000 euros in respect of non-pecuniary damage and 35 000 euros in respect of costs and expenses. The time-limit for the payment of these amounts expired on 23/08/2007. The applicant's representative complained about the delay in the payment of these sums.
The Committee urged Turkey to pay these amounts without further delay (see the decisions adopted since the 1007th meeting, October 2007). At their 1043rd meeting (December 2008) the Deputies adopted Interim Resolution CM/ResDH(2008)99 in which they strongly insisted that Turkey pay the sums awarded in respect of just satisfaction in the Court's judgment of 07/12/2006, as well as the default interest due.
2) Other measures: the Turkish authorities expressed the view that the sum awarded by the European Court in respect of the pecuniary damage (mentioned above) included the value of the property at issue, as its amount corresponds to that offered by the “Immovable Property Commission” for the value of the property and for the damage suffered on account of the loss of use of that property.
At the 1043rd meeting (December 2008), the Committee recalled that the issue regarding what precisely was covered by the amount awarded in respect of pecuniary damage in the judgment of 07/12/2006 was clarified by the European Court's judgment in the case of Demades against Turkey of 22/04/2008 (1072nd meeting, December 2009), which became final on 01/12/2008. In this judgment the European Court reiterated its finding in the cases of Loizidou, Cyprus against Turkey and Xenides-Arestis that displaced Greek Cypriots cannot be deemed to have lost title to their property and that the compensation to be awarded by the Court in such cases is confined to losses emanating from the denial of access and loss of control, use and enjoyment of this property (§24 of the judgment). The Committee invited in consequence the Turkish authorities to provide information on the measures they envisage, in addition to the payment of the just satisfaction, to remedy the consequences of the continuing violation of the applicant’s property rights and right to respect for her home (see the decisions adopted at the 1043rd and 1051st meetings, December 2008 and March 2009).
• During the latest examination of the case (June 2009), the Committee deplored that Interim Resolution CM/ResDH(2008)99 concerning the payment of the sums awarded for just satisfaction by the judgment of the European Court of 7/12/2006 remains unanswered. It strongly insisted the Turkish authorities comply with their obligation to pay these sums without further delay, including the default interest due. The Committee decided to resume the examination of this case at their 1065th meeting (September 2009) (DH), in particular to decide on action to be taken in the absence of information on the payment of the aforementioned just satisfaction.
• Information provided by the Turkish authorities: Following the judgment of 22/12/2005, an Immovable Property Commission was established on the basis of “Law 67/2005 on immovable property”. The Turkish authorities indicated in this respect that the constitutional challenges to this law had been rejected by the courts.
In June 2007 (997th meeting), the Deputies took note of the finding of the European Court in its judgment on the application of Article 41 of 07/12/2006, according to which “the new compensation and restitution mechanism, in principle, has taken care of the requirements of the decision of the Court on admissibility of 14 March 2005 and the judgment on the merits of 22 December 2005”.
They took also note of the fact that the Court pointed out “that the parties failed to reach an agreement on the issue of just satisfaction where, like in the case of Broniowski v. Poland (…), it would have been possible for the Court to address all the relevant issues of the effectiveness of this remedy in detail”. In October 2007 (1007th meeting), the Committee of Ministers noted the information provided by the Turkish authorities on the functioning of the “Immovable Property Commission” established in the northern part of Cyprus and invited the authorities to continue to keep them informed on this subject (for further detail on the functioning of the “Immovable Property Commission” see the case of Cyprus against Turkey above).
• In the context of the case Cyprus against Turkey, the Committee, having underlined “that the European Court is currently seised of the question of the effectiveness of the mechanism of restitution, exchange and compensation established in the northern part of Cyprus” and having considered “that the Court’s conclusions on this point might be decisive for the examination of this question”, decided to resume examination of this question once the Court has pronounced itself on the matter (decision adopted in the case of Cyprus against Turkey at the 1059th meeting, June 2009). As regards the examination of the general measures in the Xenides-Arestis case the same approach should be followed.
1. invited the Chairman of the Committee of Ministers to send a letter to his Turkish counterpart in order to convey the Committee’s continuing concern relating to the lack of information on the payment of the sums awarded for just satisfaction by the judgment of the European Court of 7th December 2006, underlying the Turkish authorities’ obligation to pay these sums without further delay, including the default interest due;
2. decided to continue to supervise the execution of the Court’s judgment at each of their “Human Rights” meetings until full compliance with this judgment is secured.
25060/02+ Erdal Aslan, judgment of 02/12/2008, final on 02/03/2009
This case concerns the unfairness criminal proceedings against the applicant. He was convicted in November 1999 for armed action aimed at upsetting the constitutional order and sentenced to life imprisonment.
The European Court, noting that the applicant had not benefited from the assistance of counsel whilst on remand, considered that his conviction was essentially based on statements he made under duress, described by the Court as torture (violations of Articles 3, 6§§1 and 3c)).
The Court also found that the applicant had not had at his disposal an effective remedy whereby he might complain of the ill-treatment inflicted on him (violation of the procedural aspect of Article 3) and that the period of his continued detention throughout his trial was excessive (violation of Article 5§3).
The case finally concerns the absence of an effective remedy to challenge the lawfulness of his detention (violation of Article 5§4).
Individual measures: In view of the seriousness of the violation of the Convention and having regard to the fact that the applicant is still suffering the consequences of the violation, the reopening of proceedings appears to be the most appropriate redress for the applicant (same situation as in the case of Hulki Güneş, 1064th meeting, September 2009).
• Information is awaited on the measures envisaged by the Turkish authorities to find a rapid solution to the applicant's situation.
General measures: General measures concerning ill-treatment and the absence of an effective investigation are under examination before the Committee in the cases concerning the actions of the Turkish security forces (Aksoy group, Section 4.3).
As for the violations found by the Court of Article 5§§3 and 4, these matters are under consideration in the Demirel Group (39324/98, 1072nd meeting, December 2009).
The Deputies decided to resume consideration of the measures to be taken to execute the Courts’ judgments at their 1066th meeting (23 September 2009).
- 196 cases concerning the actions of the Turkish security forces
(Interim Resolutions ResDH(2005)43 and CM/ResDH(2008)69)
- 69 Friendly settlements and striking-out concerning actions of the Turkish security forces and involving undertakings by the Turkish government
(See Appendix for the list of cases in the Aksoy group)
These cases concern violations resulting from actions of the security forces, in particular in the southeast of Turkey, mainly in the 1990’s (unjustified destruction of property, disappearances, infliction of torture and ill-treatment during police custody and killings committed by members of security forces); subsequent lack of effective investigations into the alleged abuses (violations of Articles 2, 3, 5, 8 and 13 and of Article 1 of Protocol No. 1).
Several cases also concern failure to co-operate with the Convention organs as required under Article 38 of the Convention.
Individual measures: In the light of the violations found and the Court’s decisions on just satisfaction, the main issue has been the possible resumption of criminal investigations. However, in view of the need for general measures to improve investigations, this issue is largely integrated into that of general measures. Cases in which criminal proceedings are presently pending are followed separately, in specific groups (such as the Batı group of cases).
General measures: Since 1996 Turkey has adopted a large number of general measures with a view to complying with these judgments, including comprehensive changes in the Constitution, legislation, regulations and practice (see Interim Resolutions DH(99)434, ResDH(2002)98, ResDH(2005)43 for details).
At its 1035th meeting (September 2008) the Committee assessed the measures taken so far and the outstanding issues and adopted Interim Resolution CM/ResDH(2008)69, in which the Committee decided to close the examination of the following issues:
- legislative framework regarding procedural safeguards in police custody;
- professional training of members of security forces;
- direct effect given in Turkish law to the requirements of the Convention;
- prompt and efficient implementation of the “Law on compensation of losses resulting from terrorism and from the measures taken against terrorism”;
- training of judges and prosecutors.
As regards the issue of establishing enhanced accountability of members of security forces, the Committee noted that the amended Turkish legislation appears to have lifted the requirement of administrative authorisation only in respect of allegations of torture and ill-treatment but that it continued to exist with respect to other allegations of serious crimes. The Committee also noted that the highest-ranking members of security forces enjoyed special prosecution procedures applicable to judges. The Committee therefore urged the Turkish authorities to take the legislative measures needed to remove any ambiguity regarding the fact that administrative authorisation is no longer required to prosecute – not only for torture and ill-treatment but also any other serious crime – and to ensure that members of security forces of all ranks could be prosecuted without an administrative authorisation.
Having noted the statistical information provided with regard to the number of investigations, acquittals and convictions of crimes of torture and ill-treatment, the Committee urged the Turkish authorities to provide the same statistical information on alleged abuses by members of security forces with a view to demonstrating the positive impact of the measures taken so far.
Since the adoption of the interim resolution, no new information has been provided by the Turkish authorities with regard to these outstanding measures.
1. observed that the Turkish authorities informed the Committee of the measures taken with regard to the outstanding issues identified in the Committee’s Interim Resolution CM/ResDH(2008)69 adopted at the 1035th meeting (September 2008);
2. instructed the Secretariat to make an assessment of the information provided by the Turkish authorities during the Committee’s current meeting;
3. decided to resume consideration of these cases at the latest at their DH meeting in March 2010, in the light of the assessment to be made by the Secretariat.
39437/98 Ülke, judgment of 24/01/2006, final on 24/04/2006
Interim Resolutions CM/Res/DH(2007)109 and CM/ResDH(2009)45
The case concerns the degrading treatment of the applicant as a result of his repeated convictions and imprisonment for having refused to perform military service (violation of Article 3).
The applicant was called up in August 1995, but refused to do his military service on the ground that he had firm pacifist convictions, and he burned his call-up papers in public at a press conference. In January 1997 the applicant was sentenced to six months' imprisonment and a fine. Between March 1997 and November 1998 the applicant was convicted on eight occasions of “persistent disobedience” on account of his refusal to wear military uniform. During that period he was also convicted on two occasions of desertion, because he had failed to rejoin his regiment. In total, the applicant served 701 days of imprisonment.
The European Court first noted that on each occasion the applicant was freed having serving his sentence, he was once again sentenced and imprisoned for refusing to perform his military service and to wear his uniform. If the applicant persists in refusing to perform his compulsory military service, he has to live the rest of his life with the risk of being sent to prison.
The Court further noted that there was no specific provision in Turkish law governing the sanctions for those who refused to perform military service on conscientious or religious grounds. The only relevant applicable rules were provisions of the Military Criminal Code, which made any refusal to obey the orders of a superior an offence. In the Court's opinion, that legal framework was evidently not sufficient to provide an appropriate means of dealing with situations arising from the refusal to perform military service on account of one's beliefs. The numerous prosecutions already brought against the applicant and the possibility that he is liable to prosecution for the rest of his life amounted almost to “civil death” which was incompatible with the punishment regime of a democratic society within the meaning of Article 3.
Individual measures: The applicant is at present in hiding and is wanted by the security forces for execution of his sentence. He has no official address and has broken off all contacts with the administrative authorities.
In response to the specific measures requested by the applicant, the European Court indicated that it was primarily for the state concerned to choose, subject to supervision by the Committee, the means to be used in its domestic legal order in order to discharge its obligation under Article 46 of the Convention.
1) Events after the judgment of the European Court became final: On 12/07/2007 the applicant's representatives informed the Secretariat that the applicant had been summoned on 09/07/2007 to present himself in order to serve his outstanding sentence resulting from a previous conviction (This information was communicated to delegations on 03/08/2007, DD(2007)440). Several NGOs, both in and outside Turkey, have shown their interest and conveyed their concerns for the applicant's situation.
In the meantime, the applicant's request for a stay of execution of his sentence was rejected by the Eskişehir Military Court on 27/07/2007. In its decision the court referred to the decision taken by the Committee at its 997th meeting (June 2007) and to the undertaking of the Turkish authorities at that meeting concerning the draft law that was under preparation in order to find a solution to the applicant's situation. However, according to the court, the undertaking of the Turkish authorities could not lead to a stay of execution of the applicant's sentence because the content of the law under preparation - including whether or not it contained provisions that would apply for or against the applicant's case - was unknown. The court, therefore, sentenced the applicant to 17 months and 15 days' imprisonment on the basis of his previous convictions. The applicant lodged a petition of objection with the Military Court of Cassation on 03/08/2007. The case is still pending before that court.
2) Interim resolution adopted at the 1007th meeting (October 2007): In the absence of any information on individual measures taken, despite the declaration of the Turkish authorities that a draft law was being prepared which was intended to cover the individual measures necessary in this case (see below), the Committee decided to adopt Interim Resolution (CM/ResDH(2007)109) urging Turkey without further delay to take all necessary measures to put an end to the violation of the applicant's rights under the Convention and to adopt rapidly the legislative reform necessary to prevent similar violations of the Convention. The Committee further decided to examine the implementation of this judgment at each human rights meeting until the necessary urgent measures are adopted.
3) Decision adopted at the 1043rd meeting (December 2008): The Committee noted with grave concern that, despite the above-mentioned Interim Resolution and the Committee’s repeated calls on Turkey to take the necessary measures, the applicant’s situation remained unchanged and that he was still facing the risk of imprisonment on the basis of a previous conviction. The Committee decided therefore to resume consideration of this case at the 1051st meeting (March 2009) in the light of a second interim resolution unless the Turkish authorities provide information to the Committee on the measures required.
4) The second interim resolution adopted at the 1051st meeting (March 2009): Given that no information had been provided by the Turkish authorities, the Committee adopted a second interim resolution (CM/ResDH(2009)45) strongly urging “the Turkish authorities to take without further delay all necessary measures to put an end to the violations of the applicant’s rights under the Convention and to make the legislative changes necessary to prevent similar violations of the Convention”;
5) Decision adopted at the 1051st meeting (March 2009): At the same meeting the Committee also deeply deplored the fact that the Turkish authorities had provided no information to the Committee on the measures required in this case and strongly encouraged them to carry out bilateral contacts with the Secretariat aiming to bring to an end the continuing effects of the violation for the applicant. The Committee also decided to consider further action should Turkey fail to provide tangible information to the Committee before the 1059th meeting (June 2009) in response to the interim resolution.
6) Decision adopted at the 1059th meeting (June 2009): The Committee deeply deplored that, despite its invitation, the Turkish authorities have not had bilateral contacts with the Secretariat to bring to an end the continuing effects of the violation for the applicant. The Committee also decided to invite its Chair to convey the preoccupation of the Committee through a letter to be addressed to his Turkish counterpart unless the Turkish authorities provide tangible information to the Committee before the 1065th meeting (September 2009).
• Information provided by the Turkish authorities (997th meeting): A draft law was being prepared by the competent Turkish authorities aiming to prevent new violations of Article 3 similar to that found in the present case and that this draft law would be transmitted to the Prime Minister's Office for submission to Parliament. This law, once adopted, will prevent repetitive prosecutions and convictions of those who refuse to perform military service for conscientious or religious reasons on grounds of “persistent disobedience” of military orders. According to the Turkish authorities, this draft law is intended to remedy all negative consequences of the violation for the applicant.
The Turkish authorities also gave information on the publication and dissemination of the judgment to the relevant authorities. The judgment of the European Court also received wide media coverage.
At the same meeting the Committee invited the Turkish authorities to submit a copy of this draft law and encouraged them to take the necessary steps to ensure its rapid adoption by the Parliament. No information on the adoption of this law, including its draft, has been received so far.
1. observed with grave concern that, despite the Committee’s repeated calls on Turkey and two interim resolutions already adopted, tangible information has still not been provided by the Turkish authorities on the urgent measures required in this case;
2. invited the Chair of the Committee of Ministers to convey the preoccupation of the Committee through a letter to be addressed to his Turkish counterpart;
3. decided to resume consideration of this item at their 1072nd meeting (December 2009) (DH), in light of the reply by the Turkish Minister of Foreign Affairs to the letter of the Chair of the Committee.
28490/95 Hulki Güneş, judgment of 19/06/03, final on 19/09/03
Interim Resolutions ResDH(2005)113, CM/ResDH(2007)26 and CM/ResDH(2007)150
72000/01 Göçmen, judgment of 17/10/2006, final on 17/01/2007
46661/99 Söylemez, judgment of 21/09/2006, final on 21/12/2006
1. The case of Hulki Güneş concerns the lack of independence and impartiality of the Diyarbakır State Security Court on account of the presence of a military judge (violation of Article 6§1 of the European Convention on Human Rights, hereinafter referred to as “the Convention”), and the unfairness of the proceedings before that court. As a result of the unfair proceedings, the applicant was sentenced to death (subsequently commuted to life imprisonment), mainly on the basis of statements made by gendarmes who had never appeared before the court as well as on the applicant’s confessions obtained while he was questioned in the absence of a lawyer and under circumstances which led the European Court of Human Rights (hereinafter referred to as “the Court”) to find a violation of Article 3 (violation of Article 6§§1 and 3 (d)).
The case also concerns the treatment inflicted on the applicant while in police custody in 1992 which the Court found to be inhuman and degrading (violation of Article 3).
2. The cases of Sabahattin Göçmen and Mehmet Faysal Söylemez also concern the unfairness of the proceedings against the applicants. In the case of Göçmen, the applicant was sentenced in 1999 to 18 years and 9 months’ imprisonment on the basis of incriminating statements he made in the absence of a lawyer and under duress while in police custody. In the case of Söylemez the applicant was sentenced to 20 years’ imprisonment while the proceedings were pending against the police officers for having ill-treated the applicant while in custody.
3. In view of the seriousness of the violations of the applicants’ right to a fair trial, the serious doubts they cast on the outcome of the criminal proceedings at issue and the gravity of the sentences imposed on the applicants, specific individual measures - namely the reopening of the impugned proceedings - to erase them as well as their consequences for the applicants are urgent.
4. According to the Turkish authorities, restitutio in integrum, as far as possible, for the applicants can only be achieved by amending the Code of Criminal Proceedings.
5. However, more than five years after the Court’s judgment in the case of Hulki Güneş and despite repeated requests from the Committee of Ministers and its Chair (see, appendices 1, 3, 4, 6 and 7) and the commitments made to the Chairman of the Committee of Ministers by the Turkish authorities (see, appendices 2 and 5), no tangible information has been provided by the Turkish authorities on the measures taken to remove promptly the legal lacuna preventing the reopening of the domestic proceedings in the applicants’ cases in order to comply with the Court’s judgments.
B. EXAMINATION OF THE CASES BY THE MINISTERS’ DEPUTIES
6. Given the absence of progress in the adoption of the measures required by the judgments concerned, the Deputies decided in December 2008 to examine these cases “at each regular meeting of the Committee of Ministers’ Deputies as from their first meeting in January 2009 until the Turkish authorities provide tangible information on the measures they envisage taking”.
7. At the 1046th meeting of the Deputies (21 January 2009) the Secretariat (Director General of Human Rights and Legal Affairs) recalled the questions raised by the execution of the judgments in these cases, emphasising that the Hulki Günes case, the “reference case” for all three, had been pending before the Committee of Ministers for more than five years. He underlined that, from the first examination of the Hulki Günes by the Committee in the context of its role under Article 46 of the Convention, the Committee had clearly indicated the urgent individual measures needed for the defendant state to conform to its obligation to execute the judgment, namely to amend the Code of Criminal Procedure (CCP) so as to remove the legal obstacle which prevents reopening of the domestic proceedings in this case – and also in those of Göcmen and Söylemez.
The Director General explained why these cases would be placed, as from the beginning of January 2009, on the agenda of every regular meeting of the Ministers’ Deputies (see introduction above and appendices). In this context he recalled the intervention of the Representative of Turkey at the 1044th meeting on 10 December 2008, to the effect that, considering that the reopening of persons convicted of terrorist offences was at issue, the Turkish authorities considered that it was not an opportune time to submit a draft amendment to the CCP and that it was best to wait for more favourable conditions.
Even if the secretariat could understand the political reasons mentioned by the Turkish authorities the Director General underlined that they could not be used, either before the Committee or still less before the Court, to justify a violation or any delay or failure to execute a judgment of the Court. He concluded by stating that the aim now was to find out from the Turkish authorities what concrete measures were envisaged to execute the Court’s judgments in these cases.
8. The Representative of Turkey said that in his declaration of 10 December he had already provided all necessary explanations regarding the state of execution of these cases and the measures required. Recalling that in his authorities’ view these cases concerned terrorist offences, he asserted that they would present their proposal to amend the CPP as soon as they considered that it had some chance of success.
9. The Representative of France, noting what had already been said and the action taken to date by the Committee of Ministers, regretted that despite its repeated appeals no concrete measure had been taken. Whilst understanding the constraints of parliamentary procedure, he formed the wish that the obstacles to reopening the applicants’ proceedings might be removed as soon as possible, as a delay of five years since the leading judgment seemed rather long.
10. The Representative of Switzerland said he could understand that cases raising questions linked with terrorism posed problems. But even so, the right of everyone to a fair trial was fundamental. Accordingly, considering the action taken by the Committee of Ministers in the Hulki Günes case, he was concerned that a judgment of 2003 had not yet been executed. He suggested that it would be useful to invite the Turkish authorities to present an action plan with a precise time-frame for adopting the measures needed to execute the judgments.
11. At the 1047th meeting of the Deputies (4 February 2009), the Representative of the Czech Republic expressed regret that, five years after the judgment in the case of Hulki Güneş became final, these cases still appeared on the agenda of the Committee of Ministers.
12. The Representative of Denmark expressed concern that Turkey could still not give a timetable as to when it is planning to change its legislation to comply with the Court’s judgment. He added that governments should be able to convince their Parliaments to adopt the necessary legislation in order to ensure compliance with international obligations, especially when those governments have majority in their parliaments.
13. The Representative of Norway noted that his authorities understood that these cases raised sensitive questions. Nevertheless, he expressed concern that the case of Hulki Güneş has still not been executed for more than five years. He asked for a solution to be found so that these cases are executed.
14. The Representative of the Netherlands shared the concerns expressed by his colleagues. He noted that it appeared that the Turkish Parliament’s attitude was the reason for not executing these judgments. However, this explanation could not be accepted because a State party to the Convention has to respect with its obligations in way or the other.
15. At the 1048th meeting (11 February) the Representative of Belgium said that like those who had taken the floor on previous occasions, he considered that the obligation conferred by Article 46, paragraph 1, of the Convention applied to all alike. He took note of the information provided by the Turkish authorities to the effect that there could be no short-term solution, but indicated that, this being the case, the Committee should persist in its efforts to secure full execution of the judgment in the interest of the credibility of the human rights protection mechanism and of the Organisation.
16. The Secretariat (Director General of Human Rights and Legal Affairs) recalled why this question, normally reserved for DH meetings, was on the agenda of regular meetings. This was because, in spite of repeated urgings, the authorities of the respondent state had failed to provide the necessary tangible information requested on the execution measures. It was important to maintain this item on the agenda to see whether the Turkish authorities would take action to execute the judgments within a reasonable time.
17. At the 1049th meeting (19 February 2009), the Representative of Germany said that his authorities deplored the fact that these judgments had still not been executed even though they dated from more than five years ago. He could not but remind the Turkish authorities of the obligation on all states under Article 46, paragraph 1 of the Convention to execute judgments against them and urged Turkey to do everything in its power to speed up the adoption of the legislative amendment need to put an end to the violations in these cases.
18. The Secretariat (Director General of Human Rights and Legal Affairs) wished simply to repeat what he had said at previous meetings and to encourage Turkey without further delay to provide information on the procedure which they intend to engage.
19. At the 1050th meeting (11 March 2009), the Representative of Denmark raised the question as to whether the Representative of Turkey could inform the Committee on the developments, if there are any, since these cases have been last examined by the Committee at the 1049th meeting.
20. In response, the Representative of Turkey recalled that the reform required to permit reopening of the cases at issue required an amendment of the Criminal Code and that this was a legislative act. The Turkish Parliament was currently in recess due to the holding of local elections on 29 March, and would not be able to take the matter up until it returns to work in April.
21. The Secretariat (Head of the Department for Execution of the Judgments of the European Court of Human Rights) recalled the statement made by the Director General of Human Rights and Legal Affairs at the previous meeting.
22. The Chair concluded that the Committee had taken note of the information provided by the Representative of Turkey and expressed the hope that the Grand National Assembly might be in a position to take the matter up as soon as it reconvened.
23. At the 1051st meeting (17-19 March 2009) (DH), the Representative of Turkey stated that he had no new information further to those given during the last regular meeting and that after the local elections on 29 March, he would hopefully be able to give some more information.
24. The Representative of the United Kingdom stated that the United Kingdom had also to deal with terrorism and that the difficulties involved in executing judgments of this kind were understandable. The Representative nonetheless underlined that it was important that Turkey takes measures to execute these judgments and to inform the Committee of the concrete steps taken after the local elections. The Representative stated that it was relevant at this stage to ask what measures Turkey tends to take to persuade parliamentarians that amendments of the relevant laws is necessary.
25. The Representative of Norway deplored that more than 5 years after the delivery of these judgments, Turkey has still not adopted urgent individual measures to execute the judgments and urged the Turkish authorities to submit, without further delay, to the Parliament a bill proposing the necessary amendments to the Code of Criminal Procedure, regardless of the non favourable conditions that might exist for such amendments in the Parliament. The Representative stated that it was important that the Turkish government contributes to creating the necessary pressure on the parliamentarians so that the judgments can be executed.
As the United Kingdom delegation, the Representative asked whether the Turkish authorities made the necessary efforts to persuade the parliamentarians with a view to creating more favourable conditions for the adoption of the necessary legislative measures.
26. The Representative of France stated that she taken due note of the information concerning the forthcoming elections in Turkey and their consequences for the Parliament’s work. However, given the fact that these cases had been examined for many years, she was looking forward to concrete developments immediately after the elections of 29 March. She strongly encouraged the Turkish authorities rapidly to start the reform of the Code of Criminal Procedure with a view to allowing the execution of the judgments of the Court, and to inform the Committee of Ministers of this had been done as soon as possible.
27. The Representative of Sweden underlined the need for removing promptly the legal gap preventing the reopening of the domestic proceedings and, as the previous speakers, asked for concrete measures to be taken.
28. The Representative of Italy drew attention to the potential relevance of 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 particular to paragraph 14 of the explanatory memorandum concerning “mass cases” and questioned whether these cases can be consider to fall under this category in particular in respect of reopening of domestic proceedings.
29. The Representative of the Czech Republic stated these cases could not be settled by simply referring to political reasons making it impossible to execute them and that Turkey had to find a quick solution. The Representative urged Turkey to implement these judgments fully.
30. The Representative of Finland recalled that the European Court of Human Right was one of the main pillars of the Human Rights system and that it was the responsibility of every member state to implement judgments promptly and fully.
31. The Representative of Denmark asked Turkey to recommend that an action plan be presented.
32. The Secretariat (Director General of Human Rights and Legal Affairs) stated first that it was necessary to define the context of the execution of these cases and in that respect it was not the execution of “mass cases” but of three individual cases: Hulki Güneş, Göçmen and Söylemez.
Secondly, the choice of the means to achieve execution, namely an amendment to the Code of Criminal Procedure, was made by the respondent state itself.
Finally, he recalled, as already underlined in the context of regular meetings, that political objections were not admissible as a ground to oppose the execution of a judgment. The delegation of Turkey had previously underlined the difficulty of reopening cases concerning terrorism but these arguments, although perfectly understandable, could not in any way allow the non-execution of a judgment. Now another argument was raised, namely to wait for the outcome of local elections to see whether it would be eventually appropriate to seise the Parliament. Here again, this kind of political argument, although quite understandable, was not admissible to oppose the execution of a judgment. Therefore, the Secretariat fully supported the delegations which had invited the Turkish authorities to table as soon as possible before the Parliament the necessary amendment to the Code of Criminal Procedure.
33. At the 1052nd meeting (25 March 2009), the Representative of the United Kingdom reiterated the statement made at the 1051st DH meeting.
34. At the 1053rd meeting (1 April 2009), the Representative of the Czech Republic on behalf of the European Union made the following statement: ”The European Union expresses its deep concerns about the Turkish cases Hulki Güneş, Göçmen and Söylemez which remain unresolved, although the judgments were issued several years ago. The case of Hulki Güneş has still not been executed after more than five years.
When adhering to the Convention, the Contracting States undertake to abide by the final judgment of the Court in any case to which they are parties. We reiterate our position that all judgments of the Court must be fully implemented by the parties found in violation of the Convention.
The European Union is especially concerned that the lack of implementation of the judgments continues to result in deprivation of liberty without due process of law. The European Union recalls its clear position that efforts to prevent and reduce terrorism must be executed in full conformity with the rule of law, respect for human rights and international legally binding obligations. The European Union therefore encourages Turkey to take all appropriate measures to speed up the legislative changes which it understands are necessary to remedy the violations found by the Court.”
The candidate countries Croatia and the “Former Yugoslav Republic of Macedonia”, the countries of the Stabilisation and Association Process and potential candidates Albania, Bosnia and Herzegovina, Montenegro and Serbia, along with the European Free Trade Association countries and members of the European Economic Area Iceland and Lichtenstein, as well as Andorra align themselves with this declaration.
35. The Representative of Turkey stated that he took note of the statement made by the European Union, but took exception to the reference made to “deprivation of liberty without due process of law”. He indicated that the right to reopening of domestic proceedings would not automatically lead to a retrial, let alone a reversal of the original judgment. This was also the situation in several European Union member states with regard to the reopening of domestic proceedings following a violation found by the European Court. Therefore, the reference made to “deprivation of liberty without due process of law” prejudges the all stages of domestic proceedings.
The Representative of Turkey added that, following the nation-wide local election last Sunday, the Turkish Parliament went into session and expressed the hope that he would be able to inform the Committee of positive developments in this political issue during this work session of the Parliament.
36. The Representative of Switzerland supported the declaration made on behalf of the European Union. He stated that it was imperative to have fair proceedings in these cases. He welcomed the fact that the Turkish Parliament would deal with this issue forthwith, taking into account the judgments by the European Court, and hoped for positive results in the near future.
37. The Secretariat (Head of the Department for Execution of the Judgments of the European Court of Human Rights) took note with interest of the information provided by the Representative of Turkey concerning the fact that the Parliament was in session following the very recent local elections. The Secretariat hoped that this would constitute the first step of developments making it possible rapidly to achieve concrete results for the implementation of these three judgments, in particular through tabling the required amendment to the Code of Criminal Procedure.
38. At the 1054th meeting (16 April 2009), the Representative of France recalling the encouraging intervention made by the Permanent Representative of Turkey during the previous meeting of the Ministers’ Deputies regarding the necessary amendments to the Code of Criminal Procedure, expressed his concern that there has been no concrete developments in this field. While indicating that he understood the sensitivity of the issues, the Representative stressed two fundamental principles at stake here, namely the right to a fair trial and the obligation to execute the judgments of the Court. He stated that five years after the Court’s judgment in the Hulki Güneş case, whatever the difficulties are, it is high time that Turkey set a precise timetable for the adoption of the necessary measures for the execution of the cases in question. It is an issue of the credibility of the mechanism of the Convention.
39. At the 1055th meeting (22-23 April 2009), The Secretariat (Director General of Human Rights and Legal Affairs) recalled that the Committee was still awaiting concrete information on the measures envisaged by the Turkish authorities, including the time-frame, for executing these three judgments.
40. The Representative of Turkey recalled that he had promised the Committee that he would inform it as soon as possible of any development. It could be deduced from his silence that as yet there was none, but he would inform the Committee when he had something to announce.
41. At the 1059th meeting (2-4 and 5 (morning) June 2009), the Secretariat (Director General of Human Rights and Legal Affairs) recalled that the Committee was still waiting for a clear position from the Turkish authorities regarding the way they intend to implement these judgments. In this respect, he recalled that information was awaited on the concrete measures envisaged as well as a time-table for their adoption.
He deplored that so far no information has been provided on these issues.
He stated that the objections from Turkey, although understandable from a political point of view, could not justify the failure to implement these judgments.
42. The Representative of the United Kingdom reiterated her position according to which cases concerning terrorism raise problems but in any event these judgments must be implemented. She recalled that the Turkish authorities had indicated that no measure could be adopted before the local elections and hoped that since then the Turkish authorities would be able to provide information on the measures expected.
43. The Representative of Germany regretted the absence of information and recalled the statement made on behalf of the European Union.
44. The Representatives of the Netherlands, Switzerland, France, Norway, Denmark, Belgium, Sweden and Portugal supported the statements made by the previous speakers concerning in particular the need for information on the concrete measures envisaged and the time-table for their adoption.
45. The Chair underlined the importance for the Committee that these cases be implemented and urged the Turkish authorities to take concrete measures to this end.
46. At the 1060th meeting (10 June 2009), the Representative of the Czech Republic on behalf of the European Union made the following statement: “The European Union reiterates its deep concerns about the lack of progress in the implementation of the judgments in the Turkish cases of Hulki Güneş, Göçmen and Söylemez. Of particular concern is the fact that the non-execution of the judgments which were issued several - in the case of Hulki Güneş more than five - years ago, continues to result in deprivation of liberty without due process of law.
By becoming party to the European Convention on Human Rights, Turkey undertook the obligation to abide by the Court’s final judgments in any case to which it is a party, and to take all appropriate measures in this regard. We regret that the Turkish authorities still have not provided the necessary information on the execution measures including the timetable requested at the Committee of Ministers to this end.
The European Union reiterates its position that all efforts to prevent and reduce terrorism must be executed in full conformity with the rule of law, respect for human rights and international legally binding obligations.
In March 2009, Turkey stated, that the necessary amendments to the laws, drafted by the Turkish Government and allowing the domestic proceedings in the applicants´ cases to be reopened, could not be presented to the Turkish Parliament, as it was in recess due to the upcoming local elections in Turkey. More than two months have passed since the local elections were held. The European Union therefore strongly calls on the Government of Turkey to advise when the amendments will be presented to the Turkish Parliament, and what measures the Government of Turkey will take to ensure the speedy passing of these amendments.”
The candidate countries, Croatia and ‘the former Yugoslav Republic of Macedonia’, countries of the stabilisation and association process and potential candidates Albania, Bosnia and Herzegovina and Montenegro, along with the European Free Trade Association countries and members of the European Economic Area; Iceland and Norway, align themselves with this declaration.”
47. At the same meeting, the Representative of Switzerland took the floor in his capacity as Chair of the Deputies human rights meetings to report on the debate at the 1059th meeting (see above §§ 41-45).
48. The Representative of Turkey recalled that when the item had been placed on the agenda of the Deputies’ regular meetings, he had promised to inform them of any development in execution of these judgments. He had also explained that execution would require an amendment of the Code of Criminal Procedure, which was a matter for Parliament. He was fully mindful of the undertaking he had given but at present had no news to give.
He had listened to the declaration by the European Union and to the report given by the Representative of Switzerland, and he took note. However, he recalled that when the European Union had delivered its first declaration on 1 April 2009, his authorities took exception to the reference to “deprivation of liberty without due process of law”. Their attitude had not changed: the formulation in question tended to presuppose the outcome of re-opening of the applicants’ cases, but he emphasised that such re-opening could not necessarily open the way to retrial and still less to the quashing of their convictions. He noted that in this respect the situation was no different from that in many other member states. He asked for his declaration to be reflected in the minutes.
49. The Representative of the Czech Republic considered that the words in question were an accurate reflection of the circumstances of the violations, recalling that the European Court had indicated that the unfairness of the proceedings at issue was such as to “cast serious doubt on the convictions” and that the applicants were now servicing life-sentences as a result of proceedings which had been declared unfair.
50. The Secretariat (Director General of Human Rights and Legal Affairs) stated that, as the very wording of the agenda item attested, the proceedings had been unfair. They had been unfair in particular because of military judges on trial benches and because some evidence had been obtained under duress. However, it was clear that the Representative of Turkey was right in saying that reconsideration of the cases could not automatically lead to findings of innocence: the only requirement was that the conclusion reached, whatever its nature, should result from a fair process.
51. The Representative of Turkey agreed to differ: he recalled that the applicants had been tried in the 1990s for violent terrorist offences before state security courts, the composition of which included military judges. Military judges had subsequently been found by the European Court not to satisfy the necessary criterion of independence because they were under the orders of the military command. As a consequence of this finding, state security courts had been banned, and terrorist suspects were now tried before ordinary courts. However, he wished to insist on the fact that the re-examination required by the judgments in these cases would involve a reconsideration of the merits of the files, not necessarily leading to reopening or retrial, and that this being the case, the expression “deprived of liberty without due process of law” tended to prejudge the outcome.
52. At the 1063rd meeting (8-9 July 2009), the Representative of Turkey made the following statement:
“I had informed the Committee on earlier occasions that the execution of the judgments of the European Court requires amendment of Turkish Criminal Procedure Law by the Parliament.
The Parliament has now gone to summer recess and will be back in session on 1 October. Therefore, any legislative action can only be initiated after that date.
My authorities are presently considering to include this particular amendment to the Criminal Procedure Law in a legislative package of judicial reforms that is being elaborated. This course of action may increase the chances of the amendment being legislated into law by the Parliament.
To clarify why this is the case, it may be helpful to identify the basic issues involved in the execution of these judgments.
- The legislative amendment would benefit a limited number of persons mostly tried and convicted in State Security Courts in Turkey.
- The State Security Courts were disbanded in 2004, in response to the judgments of the ECtHR. In order words, the general measure that the Court identified to bring to end such violation is already executed.
- The persons involved in the three judgments are all the members of organised crime groups, sentenced for their criminal activities. Indeed, all persons tried in the State Security Courts, before they were disbanded, were members of organised crime organisations. Organised crime groups may be either terrorist organisations or mafia-type criminal groups. Hulki Güneş and Sabahattin Göçmen, for example, were convicted for their violent terrorist acts.
At their trials they have not denied their crimes. Their defense was to justify and even glorify the violent acts they had perpetrated. As a result, the re-opening of legal proceedings, if made feasible by legislative amendment, would, in all likelihood, result in reaffirming their sentences.
I make these points not to provide arguments in support of the delay in execution of the judgments.
My purpose is to draw attention to the fact that the issue that may seem legal- technical to us in this Hall, has in fact political repercussions which need to be handled with care.”
53. The Secretariat (Director General of Human Rights and Legal Affairs) took note with interest of the declaration made by the Representative of Turkey and agreed that many measures had been taken to avoid future violations of the same kind, including the abolition of state security courts and the consequent abolition of the role of military judges on the bench of courts judging civilians. However, the point at issue here was the need to reopen proceedings, judged by the European Court to be unfair, in which these applicants had been convicted of crimes. He wished to underline most strongly that the aim of such reopening was not to secure the freedom of the applicants nor to find them not guilty – but merely to ensure that their guilt was established in proceedings satisfying the requirements of Article 6 of the Convention.
He noted that due to the Summer recess of the Turkish Parliament, there would be nothing new to report at the Deputies’ next meeting on 9 September, but hoped that the legislative package mentioned by the Representative of Turkey and which would include the requisite amendments to the Code of Penal Procedure, would shortly be submitted and receive a favourable response from the Grand National Assembly.
54. At the 1064th meeting (9 September 2009), the Secretariat (Director General of Human Rights and Legal Affairs) took the floor to remind the Deputies of the information provided by the Turkish delegation at the preceding meeting and to express the hope that with the resumption of the work of the Grand National Assembly, the necessary measures would be swiftly adopted.
The Deputies decided to resume consideration of the measures to be taken to execute the Courts’ judgments at their 1066th meeting (23 September 2009).
1 Those items marked with an asterisk * were added after approval of the preliminary draft Agenda (Preliminary list of items for consideration at the 1059th meeting) in accordance with the Rules adopted by the Committee of Ministers for the application of Article 46 of the European Convention on Human Rights.