Ministers’ Deputies
Notes on the Agenda

CM/Notes/1046/H46-1 16 January 20091
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1046 Meeting, 21 January 2009
4 Human rights


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

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Action

To request information from the respondent State on the measures taken to remove promptly the legal lacuna preventing the reopening of domestic proceedings in the applicants' cases.

In all these cases the applicants were convicted by Turkish courts in circumstances which the European Court, in the judgments mentioned above, found to be unfair. The specific nature of the unfairness found by the Court, together with other violations found, are set out in the Annotated Agenda for the 1043rd meeting (2-4 December 2008) (DH). The examination made by the Committee of Ministers within the context of the case of Hulki Güneş is summarised below:

Individual measures:

1) Reopening of proceedings: In view of the seriousness of the violations of the applicants’ right to a fair trial, specific individual measures to erase them as well as their consequences for the applicants are urgent. In this respect the cases present similarities to that of Sadak, Zana, Dicle and Doğan (Final Resolution ResDH(2004)86) in which proceedings were reopened following the entry into force of Law No. 4793 of 23/01/2003 amending the provisions on the reopening of proceedings in the Code of Criminal Procedure. However, those provisions do not enable reopening of the criminal proceedings in the cases at issue here, as the Code only provides reopening of proceedings in respect of European Court judgments which became final before 04/02/2003 or judgments rendered in applications lodged with the Court after 04/02/2003

2) Action by the Committee of Ministers: The Committee has been pressing for measures to be taken to make it possible to reopen the case of Hulki Günes since as long ago as 2003.

- First letter by the Chairman of the Committee of Ministers: In the absence of any movement on the part of the respondent state, the Chairman of the Committee wrote to the Minister of Foreign Affairs of Turkey on 21/02/2005, indicating that the Court's judgment required the Turkish authorities to grant the applicant adequate redress through either reopening of the proceedings or ad hoc measures to erase the consequences of the violations for the applicant.
In his reply of 01/06/2005 the Turkish Minister of Foreign Affairs stated that there was an intense ongoing public debate on this issue in Turkey and that he felt confident that an appropriate solution would be found in due time, taking into consideration the public debate as well as Turkey's obligations. However, he did not provide any timetable concerning the measures to be taken.

- First Interim resolution: Given the absence of progress in the implementation of the judgment, at the 948th meeting (November 2005), the Committee adopted Interim Resolution ResDH (2005)113 calling on the Turkish authorities, without further delay, to redress the violations found in respect of the applicant through the reopening of the impugned criminal proceedings or other appropriate ad hoc measures. The Committee further noted with disappointment that the Turkish authorities had so far not responded to the Committee's repeated calls to correct the lacuna in Turkish law which prevents reopening in the applicant's case.

- Second letter of the Chairman of the Committee: Given that the Turkish authorities had still taken no measure to redress the applicant's situation more than two and a half years after the judgment became final, the Chairman of the Committee addressed a second letter to his Turkish counterpart on 12/04/2006 to convey the Committee's concern at Turkey's continuing failure to comply with the judgment and to urge for appropriate remedial measures in favour of the applicant.
On 08/05/2006, the Turkish Minister of Foreign Affairs replied that the authorities were trying to find an appropriate solution to the problem of inapplicability of the legislation on reopening of proceedings in the applicant's case.

- Decision adopted at the 987th meeting (February 2007):

      “The Deputies,
      1. deplored the fact that that the Turkish authorities have taken no individual measure following the judgment, despite the Committee's repeated calls to abide by its 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” (Interim Resolution ResDH(2005)113);
      2. noted that the applicant continues to suffer from the grave consequences of certain serious violations of the right to a fair trial found by the Court, which appear to cast serious doubts on the outcome of the domestic proceedings at issue (cf. Recommendation Rec(2000)2);
      3. decided to resume consideration of this case at their 992nd meeting (3-4 April 2007) (DH), in the light of further information to be provided on the individual measures taken or envisaged and to consider, if appropriate, a new draft Interim Resolution to be prepared by the Secretariat”.

- Second interim resolution: The Committee adopted a second interim resolution at its 992nd meeting (April 2007), once more calling upon the Turkish authorities without further delay to redress the violations found in respect of the applicant and strongly urged them to remove the legal lacuna preventing the reopening of proceedings in the applicant's case.

- Decision adopted at the 1007th meeting (October 2007):

    “The Deputies [..] deplored the fact that no progress had been reported by the Turkish authorities regarding a possible legislative reform designed to allow the reopening of proceedings [..]” and “[..] instructed the Secretariat to prepare a draft interim resolution if no information is received on the measures taken”.

- Third interim resolution: The Committee adopted a third interim resolution at its 1013th meeting (December 2007) in which it “firmly recalled the obligation of the Turkish authorities […] to redress the violations found in respect of the applicant” and “strongly urged the Turkish authorities to remove promptly the legal lacuna preventing the reopening of domestic proceedings in the applicant’s case”.

3) The applicant’s letter on his state of health: In a letter to the Committee the applicant stated that he was serving his prison sentence despite the fact that he is suffering from a serious illness called ankylosing spondylitis. There were medical reports indicating that his illness was not compatible with prison life (the applicant did not submit any medical reports). The applicant’s letter was sent to the Turkish authorities for their comments on 3/01/2008. At the 1028th meeting (June 2008) the Turkish authorities informed the Committee that medical reports indicated that the applicant’s state of health did not prevent the execution of his sentence.

4) Subsequent decisions by the Committee: At the 1035th meeting (September 2008), the Committee “noted that, if the present situation persisted, it would amount to a manifest breach of Turkey’s obligation under Article 46, paragraph 1, of the Convention” and decided to examine this case, along with the cases of Göçmen and Söylemez, “at each regular meeting of the Committee of Ministers should the Turkish authorities fail to provide any tangible information on the measures they envisage taking at the 1043rd meeting (2-4 December 2008) (DH)”.

No such information having been provided by the Turkish authorities at the 1043rd meeting, the Deputies decided to examine the Hulki Günes case, along with the cases of Göçmen and Söylemez, at each regular meeting of the Committee, as from the first meeting in January 2009 until the Turkish authorities provide tangible information on the measures they envisage taking.

Financing assured: N/A

DRAFT DECISION

1046th meeting – 21 January 2009

Item 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)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

Decision

The Deputies decided to resume consideration of the measures taken towards the execution of the Courts’ judgments at their 1047th meeting (4 February 2009).

Note 1 This document has been classified restricted at the date of issue; it will be declassified in accordance with Resolution Res(2001)6 on access to Council of Europe documents.


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