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.

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



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