SECRETARIAT OF THE COMMITTEE OF MINISTERS
SECRETARIAT DU COMITE DES MINISTRES
Contact: Abel Campos
Tel: 03 88 41 26 48
Date: 24 September/septembre 2012
1150 DH meeting (24-26 September 2012)
Communication from the authorities (24/09/12)
Communication from Turkey concerning the case of Hulki Güneş against Turkey (Application No. 28490/95).
Information made available under Rule 8.2.a of the Rules of the Committee of Ministers for the supervision of the execution of judgments and of the terms of friendly settlements.
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1150 réunion DH (24-26 septembre 2012)
Référence du point :
Communication des autorités
Communication de la Turquie relative à l’affaire Hulki Güneş contre Turquie (requête n° 28490/95)
Informations mises à disposition en vertu de la Règle 8.2.a des Règles du Comité des Ministres pour la surveillance de l’exécution des arrêts et des termes des règlements amiables.
1150th Meeting (DH) 24-26 September 2012
Communication from the Government of the Republic of Turkey Regarding the Execution of Güneş v. Turkey Judgment (28490/95)
1. At the 1144th meeting, the Committee of Ministers took note with satisfaction of the information provided by the Turkish Government on the law amendment that will enable the execution of Güneş judgment, and invited the Government to inform the Committee on the developments during this process.
2. In this regard, the Turkish Government is pleased to inform the Committee about the developments on the legislative process aiming at execution of the judgment in question.
3. The execution of the judgment dated 13 June 2003 concerning the applicant depends entirely on the re-opening of the judicial proceedings in which the applicant was convicted.
4. Re-opening of judicial proceedings is an existing legal remedy in the Turkish legal system; however, the applicant’s proceedings have not been able to be reopened due to an exceptional time restriction existing in Article 311 of the Code of Criminal Procedure.
5. The process until 2012 on this matter was already described in the previous communication of the Turkish Government. Therefore, the detailed description of this process is not repeated in this communication.
6. As stated in the previous communication, the Government tried to bring up a proposal, aiming at removing the time restriction in Article 311 of the Code of Criminal Procedure (“CCP”), to the agenda of the Turkish Grand National Assembly (“TGNA”, “Parliament”) various times but it has not been possible to reach a political consensus on such a proposal. Resolving the issue through a law amendment, which removes the time restriction, had been an option on the Government's agenda until the previous DH meeting. The Government submitted the draft law amendment text (2009 version) to the Committee of Ministers at the earlier meeting. The Government stated in its previous communication that alternative law amendment texts for the execution were also under consideration, although 2009 amendment version was still an option. As further reported to the Committee the Registry of the European Court of Human Rights was communicated before the previous DH meeting in order to finalize the assessments on an alternative and more practical text.
7. Having communicated with the Registry of the ECtHR, the Government requested from the Court to provide information about the number of the pending applications that might have been lodged with the Court before 4 February 2003 on account that the right to a fair trial was alleged to have been breached in a way to require the re-opening of the proceedings after a possible violation judgment. The Court informed the Government that there seemed to be no such pending application.
8. Furthermore, following the 1144th DH meeting, the Government requested from the Department for the Execution of the ECtHR judgments the list of the ECtHR judgments those required the reopening of proceedings as individual measure but could not be executed due to the time restriction. This list was provided by the said Department in the annex of its letter dated 15 June 2012 to the Government.
9. In the list, there exist 221 judgments under the Hulki Güneş, Gencel and Kolu groups of cases. All these judgments could not be executed due to the existing time restriction in Article 311 of the CCP.
10. As a result of these developments, instead of the draft 2009 version of text, the Government decided to formulate a new alternative text. The new text aims at execution of the ECtHR judgments that are pending to be executed before the Committee of Ministers without removing the time restriction in the CCP and without introducing any time restriction.
11. It was stated in the previous communication that the Government would endeavour to add 2009 version of the text to the set of amendments in the Third Judicial Reform Package during its negotiations at General Assembly of the Parliament; otherwise to bring this proposal up to the Parliament by the Fourth Judicial Reform Package that is specifically dedicated to strengthening the human rights standards.
12. On 5 July 2012, the Third Reform Package was adopted by the General Assembly of the TGNA. The Government has taken steps to bring up this newly formulated text (See Appendix) to the agenda of the TGNA but at the last moment, the text in question was decided not to be brought up to the agenda of the General Assembly on the grounds that it could not be previously discussed in detail at the relevant law commissions, and there is a probability for this version not to take support in the Assembly with the influence of the negative political atmosphere, caused by 2009 version of the text.
13. The Government envisages bringing up the newly formulated text to the agenda of the Parliament within the scope of the Forth Package of Laws. The Government believes that bringing up the text in question to the General Assembly after it is discussed in public and at the relevant Parliamentary Commissions thoroughly would make the adoption of this text more possible.
14. The Turkish Government will continue to keep the Committee informed in the future of the steps to be taken in this regard.
Article 311/1(f) of the Code of Criminal Procedure is also applied to the final judgments of the European Court of Human Rights, execution process of which were monitored before the Committee of Ministers of the Council of Europe as of 15.06.2012. In this case, the request for re-opening of the judicial proceedings could be made within three (3) months as from the date of entry into force of this law. This provision is not however applied to the ones whose retrial request was already dismissed as to its substance by a court judgment and the ones as a result of whose application the execution of the violation judgment rendered by the ECtHR was taken out of the monitoring process with the final decision of the Committee of Ministers.”