An additional part or version of this document is available.

CM/Inf/DH(2009)5rev14E  / 28 September 2009 

Ministers’ Deputies
Information documents

CM/Inf/DH(2009)5 2 February 2009
———————————————

H46-1 Cases of unfair proceedings requiring reopening of domestic proceedings –
28490/95 Hulki Güneş, judgment of 19/06/03, final on 19/09/03
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

Reference documents
CM/Del/Dec(2009)1045/H46-1, CM/Del/OJ/DH(2008)1043 Section 4.3, Interim Resolutions ResDH(2005)113, CM/ResDH(2007)26 and CM/ResDH(2007)150

———————————————

The purpose of this document is to set out the context and retrace the history of the examination of these cases by the Deputies at the Committee of Ministers’ meetings.

Table of Contents

A. Introduction

B. Examination of the cases by the Ministers’ Deputies

C. Appendices

Appendix 1: Letter of the Chairman of the Committee of Ministers dated 28 February 2005
Appendix 2: Response from the Deputy Prime Ministers and Minister of Foreign Affairs of Turkey dated 1 June 2005
Appendix 3: Interim Resolution ResDH(2005)113
Appendix 4: Letter of the Chairman of the Committee of Ministers dated 12 April 2006
Appendix 5: Response from the Deputy Prime Minister and Minister of Foreign Affairs of Turkey dated 8 May 2006
Appendix 6: Interim Resolution CM/ResDH(2007)26
Appendix 7: Interim Resolution CM/ResDH(2007)150

A. INTRODUCTION

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.

Appendix 1: Letter of the Chairman of the Committee of Ministers dated 28 February 2005

Appendix 2: Response from the Deputy Prime Ministers and Minister of Foreign Affairs of Turkey dated 1 June 2005

Appendix 3: Interim Resolution ResDH(2005)113

Section 4.3
(item H46-1290)

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Interim Resolution ResDH(2005)113
concerning the judgment of the European Court of Human Rights
of 19 June 2003
in the case of Hulki Güneş against Turkey


(Adopted by the Committee of Ministers on 30 November 2005
at the 948th meeting of the Ministers’ Deputies)

The Committee of Ministers, having regard to the judgment of the European Court of Human Rights (“the Court”) of 19 June 2003 in the Hulki Güneş v. Turkey case (application no. 28490/95) transmitted on 19 September 2003 to the Committee for supervision of execution in accordance with Article 46 § 2 of the European Convention on Human Rights (“the Convention”);

Recalling that, in that judgment, the Court found violations of the applicants’ right, under the Convention, to a fair trial before the Diyarbakır State Security Court, on account of:

- the lack of independence and impartiality of the tribunal due to the presence of a military judge on the bench of the State Security Court (violation of Article 6 § 1);

- the impossibility for the applicant to examine or to have examined the witnesses who testified against him (violation of Article 6 §§ 1 and 3(d));

Noting that, as a result the unfair proceedings, the applicant was sentenced to death, a sentence which was subsequently commuted to life imprisonment;

Recalling that the Court also found that the applicant had been subjected to inhuman and degrading treatment while in police custody (violation of Article 3);

Stressing the obligation of every state, under Article 46, paragraph 1, of the Convention, to abide by the judgments of the Court, including through the adoption of individual measures putting an end to the violations found and removing as far as possible their effects for the applicant;

Considering that, in addition to the payment of the just satisfaction awarded by the Court, the adoption of individual measures is necessary in view of the specific circumstances of the present case, notably the extent of the violations found, the serious doubts they cast on the outcome of the criminal proceedings at issue and the gravity of the sentence imposed on the applicant;

Regretting that, more than two years after the finding of the violations in this case, no measures have been taken by the Turkish authorities, beyond the payment of just satisfaction, to grant the applicant adequate redress for the violations found;

Considering that the reopening of the impugned domestic proceedings remains the best means of ensuring restitutio in integrum in this case;

Regretting that the Turkish Code of Criminal Procedure does not enable the criminal proceedings to be reopened in the present case, inasmuch as the Code only provides for the reopening of proceedings in respect of European Court judgments which became final before 4 February 2003 or judgments rendered in applications lodged with the Court after 4 February 2003;

Noting with disappointment that the Turkish authorities have so far not responded to the Committee’s repeated calls to correct this lacuna in Turkish law;

Recalling, with regard to the other aspects of the execution of the judgment in this case, that the Turkish authorities have already taken comprehensive general measures in order to prevent new similar violations of the right to a fair trial and are presently implementing a comprehensive set of measures aimed at preventing ill-treatment by members of the security forces (Interim Resolution ResDH(2005)43);

Recalling in particular the recently amended Article 90 of the Constitution enabling direct effect to be given in Turkish law to the requirements of the Convention and case-law of the Court;

CALLS ON the Turkish authorities, without further delay, to abide by their obligation, under Article 46, paragraph 1, of the Convention, to redress the violations found in respect of the applicant through the reopening of the impugned criminal proceedings or other appropriate ad hoc measures;

DECIDES to continue to supervise the execution of the Court’s judgment in this case at each of its “Human Rights” meetings until full compliance is secured.

Appendix 4: Letter of the Chairman of the Committee of Ministers dated 12 April 2006

Appendix 5: Response from the Deputy Prime Minister and Minister of Foreign Affairs of Turkey dated 8 May 2006

Appendix 6:

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Interim Resolution CM/ResDH(2007)261

Execution of the judgment of the European Court of Human Rights
Hulki Güneş against Turkey

(Application No. 28490/95, judgment of 19 June 2003, final on 19 September 2003,

Interim Resolution ResDH(2005)113)

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 transmitted by the Court to the Committee once it had become final;

Recalling that, in that judgment, the Court found violations of the applicant’s right to a fair trial before the Diyarbakır State Security Court, on account of:

    - the lack of independence and impartiality of the tribunal due to the presence of a military judge on the bench of the State Security Court (violation of Article 6, paragraph 1);
    - the impossibility for the applicant to examine or to have examined the witnesses who testified against him (violation of Article 6, paragraphs 1 and 3(d));

Noting that the Court found that the applicant had been subjected to inhuman and degrading treatment while in police custody (violation of Article 3);

Noting further that, as a result of the unfair proceedings the applicant was sentenced to death, a sentence which was subsequently commuted to life imprisonment;

Recalling that, since the first examination of the case by the Committee of Ministers, the Court’s judgment has been consistently held to require the adoption of individual measures in view of the extent of the violations of the right to a fair trial casting serious doubts on the safety of applicant’s conviction;

Recalling that, since no such individual measures were taken, the Committee adopted on 30 November 2005 Interim Resolution ResDH(2005)113 calling on the Turkish authorities to abide by their obligation, under Article 46, paragraph 1, of the Convention, to redress the violations found in respect of the applicant and concluding that the reopening of the impugned criminal proceedings remained the best means to ensure restitutio in integrum in this case;

Recalling further that the acting Chairmen of the Committee addressed two letters on 21 February 2005 and 12 April 2006 to their Turkish counterpart conveying the Committee’s concern at Turkey’s continuing failure to comply with the judgment and urging for appropriate measures in respect of the applicant;

Deeply deploring that, notwithstanding the Committee’s Interim Resolution and the two letters from the Chair, no measures have yet been taken by the Turkish authorities, beyond the payment of just satisfaction, to grant the applicant, who is still serving his life sentence, adequate redress for the violations found;

Noting with concern that, despite the adoption of the new Article 90 of the Turkish Constitution, the Code of Criminal Procedure still excludes the reopening of the criminal proceedings in this case as in numerous other cases pending before the Committee for supervision of execution, as it only provides reopening of proceedings in respect of Court judgments which became final before 4 February 2003 or those rendered in applications lodged with the Court after 4 February 2003;

Recalling in particular that the request for the reopening of proceedings lodged by the applicant had been rejected by domestic courts solely on the ground of this temporal limitation and without any assessment of the need for a new trial to remedy the specific violations found by the Court in the particular circumstances of the case;

Considering that a continuation of the present situation would amount to a manifest breach of Turkey’s obligations under Article 46, paragraph 1, of the Convention;

    CALLS UPON the Turkish authorities, without further delay, to abide by their obligation under Article 46 paragraph 1 of the Convention to redress the violations found in respect of the applicant;

    STRONGLY URGES the Turkish authorities to remove the legal lacuna preventing the reopening of domestic proceedings in the applicant’s case.

Appendix 7:

COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Interim Resolution CM/ResDH(2007)150
on the execution of the judgment of the European Court of Human Rights
Hulki Güneş against Turkey

(Adopted by the Committee of Ministers
on 5 December 2007, 
at the 1013th meeting of the Ministers' Deputies)

(Application No. 28490/95, judgment of 19 June 2003, final on 19 September 2003,
Interim Resolutions ResDH(2005)113 and CM/ResDH(2007)26)

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 transmitted by the Court to the Committee once it had become final;

Recalling that, in that judgment, the Court found violations of the applicant’s right to a fair trial before the Diyarbakır State Security Court, on account of:

    - the lack of independence and impartiality of the tribunal due to the presence of a military judge on the bench of the State Security Court (violation of Article 6, paragraph 1);
    - the impossibility for the applicant to examine or to have examined the witnesses who testified against him (violation of Article 6, paragraphs 1 and 3(d));

Noting that the Court found that the applicant had been subjected to inhuman and degrading treatment while in police custody (violation of Article 3);

Recalling that, as a result of the unfair proceedings the applicant was sentenced to death, a sentence which was subsequently commuted to life imprisonment;

Reiterating that, since the first examination of the case by the Committee of Ministers dating back to November 2003, it considered that the Court’s judgment required the adoption of individual measures in view of the extent of the violations of the right to a fair trial casting serious doubts on the safety of the applicant’s conviction;

Noting however that, despite the adoption of Article 90 of the Turkish Constitution, the Code of Criminal Procedure still excludes the reopening of the criminal proceedings in this case as in numerous other cases pending before the Committee for supervision of execution, as it only provides reopening of proceedings in respect of Court judgments which became final before 4 February 2003 or those rendered in applications lodged with the Court after 4 February 2003;

Recalling that the request for the reopening of proceedings lodged by the applicant had been rejected by domestic courts solely on the ground of this temporal limitation and without any assessment of the need for a new trial to remedy the specific violations found by the Court in the particular circumstances of the case;

Stressing that the Committee has adopted two interim resolutions so far (on 30 November 2005 Interim Resolution ResDH(2005)113 and on 4 April 2007 Interim Resolution CM/ResDH(2007)26) calling upon the Turkish authorities to abide by their obligation, under Article 46, paragraph 1, of the Convention, to redress the violations found in respect of the applicant and urging them to remove the legal lacuna preventing the reopening of domestic proceedings in the applicant’s case;

Recalling further that the acting Chairmen of the Committee addressed two letters on 21 February 2005 and 12 April 2006 to their Turkish counterpart conveying the Committee’s concern at Turkey’s continuing failure to comply with the judgment and urging for appropriate measures in respect of the applicant;

Deeply deploring that, notwithstanding the Committee’s two Interim Resolutions and the two letters from the Chair, no measures have yet been taken by the Turkish authorities, beyond the payment of just satisfaction, to grant the applicant, who is still serving his life sentence, adequate redress for the violations found;

Noting with grave concern that two similar cases, namely the cases of Göçmen and Söylemez, pending before the Committee also call for reopening of domestic proceedings because the applicants were deprived of their right to a fair trial and are still serving their prison sentences;

Stressing that failure to adopt the necessary measures in the present case prevents the possibility of reopening of proceedings in those cases;

Reiterating that a continuation of the present situation would amount to a manifest breach of Turkey’s obligations under Article 46, paragraph 1, of the Convention;

    FIRMLY RECALLS the obligation of the Turkish authorities under Article 46, paragraph 1, of the Convention to redress the violations found in respect of the applicant;

    STRONGLY URGES the Turkish authorities to remove promptly the legal lacuna preventing the reopening of domestic proceedings in the applicant’s case;

    DECIDES to examine the implementation of the present judgment at each human rights meeting until the necessary urgent measures are adopted.

1 Adopted by the Committee of Ministers on 4 April 2007 at the 992nd meeting of the Ministers’ Deputies



 Top

 

  Related Documents
 
   Meetings
 
   Other documents