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)5rev9 29 April 2009
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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/Deldec(2009)1055

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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.

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.

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



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