Resolution CM/ResDH(2007)1091

Execution of the judgment of the European Court of Human Rights
Ülke against Turkey

(Application No. 39437/98, judgment of 24 January 2006, final on 24 April 2006)

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 “the Convention” and “the Court”);

Having regard to the judgment in the case of Ülke transmitted by the Court to the Committee for supervision of its execution once it became final on 24 April 2006;

Considering that, in its judgment, the Court found that the applicant’s repeated convictions and imprisonment for having refused to perform compulsory military service on account of his beliefs as a pacifist and conscientious objector amounted to degrading treatment within the meaning of Article 3 of the Convention;

Considering further that the Court found that the existing legislative framework was insufficient, as there was no specific provision in Turkish law governing the sanctions for those who refused to perform military service on conscientious or religious grounds and that the only relevant applicable rules appeared to be the provisions of the Military Criminal Code, which made any refusal to obey the orders of a superior an offence;

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, as well as general measures not least to prevent similar violations;

Noting that, at the 997th meeting of the Committee of Ministers (June 2007), the Turkish authorities declared that a draft law had been prepared aiming to prevent new violations of Article 3 similar to that found in the present case, and that this draft would be transmitted to the Prime Minister’s Office for submission to Parliament following the opinions received from the relevant ministers;

Noting further the Turkish authorities’ declaration that this law, once adopted, would 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 and that it was also intended to cover the necessary individual measures to be taken in this case.

Noting with concern that, following the government’s declaration, the applicant was summonsed on 09/07/2007 to present himself in order to serve his outstanding sentence resulting from a previous conviction and that his request for a stay of execution of his sentence was rejected by the Eskişehir Military Court on the ground that the said declaration before the Committee of Ministers 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;

Emphasising in this regard that the Convention and the judgments of the Court have direct applicability in Turkish legal order by virtue of Article 90 of the Turkish Constitution;

Regretting that, despite Article 90 of the Turkish Constitution, the applicant is now facing a real risk of being imprisoned on the basis of a previous conviction;

Stressing the necessity to take urgent individual measures in this case;

    URGES therefore the Turkish authorities to take without further delay 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;

    INVITES in particular the Turkish authorities rapidly to provide the Committee with information concerning the adoption of the measures required by the judgment;

    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 17 October 2007 at the 1007th meeting of the Ministers’ Deputies.


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