CM/Inf/DH(2009)5rev2 16 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
CM/Del/Dec(2009)1046/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
B. Examination of the cases by the Ministers’ Deputies
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
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.
1 For reasons of economy the texts appended to the first edition of this document are not reproduced here, but may be obtained from the Secretariat.