[Documents/Docheader.htm]Implementation of decisions of the European Court of Human Rights by Turkey
Doc. 10192
1 June 2004Report
Committee on Legal Affairs and Human Rights
Rapporteur: Mr Erik Jurgens, Netherlands, Socialist Group
Summary
In Resolution 1297 (2002), the Parliamentary Assembly welcomed the constitutional and legislative changes that had taken place in Turkey which were expected to help prevent the repetition of violations of the European Convention on Human Rights but also regretted the fact that a number of problems remained unsolved.
Eighteen months later, it has again looked at the unresolved problems and concludes that some progress has been made, in particular with regard to payment arrangements. It also welcomes the payment of the just satisfaction in the Loizidou case. However, it regrets the fact that the merits of the case have still not been resolved.
While it is pleased that retrials have been held in the Sadak, Zana, Dicle and Dogan case, it regrets the fact that the applicants are still being held in detention following fresh convictions by the State Security Court, a body that should be abolished.
The Rapporteur therefore calls on the Turkish authorities to take all the necessary measures to comply with the judgments of the Court.
I. Draft resolution [Link to the adopted text]
1. In its Resolution 1268 (2002) on implementation of decisions of the European Court of Human Rights, the Parliamentary Assembly, considering the high number of decisions against Turkey that had not been implemented (at that time), instructed its Committee on Legal Affairs and Human Rights to confer with the national delegation of Turkey and with the Government and to report to it on the progress made.
2. In pursuance of the latter decision, the Parliamentary Assembly adopted its Resolution 1297 (2002) on implementation of decisions of the European Court of Human Rights by Turkey where it welcomed the constitutional and legal changes which had taken place in Turkey, in order to contribute to preventing the repetition of violations of the European Convention on Human Rights (ECHR) but where it also regretted that a number of important problems remained unsolved.
3. The outstanding problems related to the modalities of payment of just satisfaction, immediate erasure of the consequences of unjust convictions (including restoration of the applicants’ civil and political rights), excessive interferences with freedom of expression (notably in application of the criminal code and the anti-terrorism legislation), control of the action of the security forces, the dissolution of political parties, the case of Cyprus versus Turkey and finally the Loizidou case.
4. The Assembly welcomes the significant progress that has been achieved since the adoption of the constitutional and legislative changes mentioned in the previous report, however, further comprehensive action has still to be taken; as the efficient implementation of these reforms is crucial for achieving real improvement in ensuring respect for the Convention, all efforts have to be deployed towards this end.
5. Firstly, it welcomes the settlement of the Loizidou case by the payment on 2 December 2003 of the just satisfaction owed to the applicant. It nonetheless recalls that payment of just satisfaction, although it is a great step forward in the implementation of the judgment of 1998, does in fact not yet implement the basic context of the decision (violation of Article 1 of the First Protocol to the ECHR, by illegal expropriation). This element will be examined by the Committee of Ministers at the end of 2005.
6. The situation in other priority areas can be summarised as follows:
i. as regards payment, procedures have improved but problems still persist in a number of cases;
ii. with regard to remedying unfair trials, the requests for new proceedings have been accepted and new trials have started or taken place in certain cases (Sadak, Zana, Dicle and Dogan); however, the initial prison sentence resulting from the unfair trial has not been suspended and no convincing reason has been given therefor;
iii. the Assembly welcomes the fact that a constitutional reform package is under examination in the Turkish Grand National Assembly providing for the abolition of the State Security Court, the trials of which have been deemed unfair in various judgments of the European Court of Human Rights;
iv. regarding the erasure of the consequences of the convictions imposed in violation of Article 10 of the ECHR, such measures are presently under way, although excessively late, in a restricted number of cases, including the restoration of the applicants’ civil and political rights (among the eighteen cases mentioned in 2002, eight applicants were, at the end of 2003, no longer subjected to restrictions on their rights);
v. the new law on reopening of proceedings, which took effect on 4 February 2003, excludes, however, from its scope the cases pending before the Court at its date of entry into force;
vi. furthermore, improvements have been made to freedom of expression through the abrogation of Article 8 of the Anti-terrorism Act and amendments to other laws, in particular Articles 159 and 312 of the Criminal Code; a number of laws remain, however, unchanged;
vii. as regards the dissolution of political parties, no new measures have been reported since 2002; in particular there have been no changes to Articles 68 or 69 of the Constitution or of the corresponding provisions in the Law on political parties, neither has any major development of case-law of the Constitutional Court been reported;
viii. as to the Zana judgement of 1997, the new law that was to amend the Code of Criminal Procedure has not yet been adopted.
7. Concerning the case of Cyprus versus Turkey, measures have been taken on specific points but urgent aspects, such as the issue of missing persons and the right of Greek Cypriot children to secondary schooling in the Greek language in northern Cyprus, continue to be examined.
8. In the light of the foregoing, it is plain that Turkey has taken important actions to implement the Court judgments. The fact remains, however, that some of the cases mentioned in the Assembly’s previous resolution are still not settled or only partly so.
9. Accordingly, the Assembly urges the Turkish authorities:
i. to take further steps to improve payment procedures;
ii. to revise the legislation on retrial so as to make it applicable to the judgments delivered after its entry into force, as well as to friendly settlements;
iii. to release the defendants in the cases of Sadak, Zana, Dicle and Dogan;
iv. to revise Article 6 of the Anti-terrorism Act to make it compatible with Article 10 of the ECHR (cf in particular the cases of S�rek and �zdemir and S�rek II);
v. to take all the necessary measures to allow the opening of a Greek secondary school in the northern part of Cyprus (case of Cyprus versus Turkey);
vi. to take all the necessary measures to enable, after the judgments, the immediate erasure of all consequences of violations of Article 10 of the ECHR found by the Court;
vii. to amend the Code of Criminal Procedure so as to comply notably with the Zana judgment;
viii. to enhance rapidly the current action aimed at stopping all acts of torture and ill treatment.
II. Explanatory memorandum
by Mr Jurgens, Rapporteur
1. In its Resolution 1297 (2002) the Parliamentary Assembly appealed to Turkey to rapidly take action on several cases which had been under consideration by the Committee of Ministers for years. The Committee of Ministers continued to follow the situation, as can be seen from the appendix to the present document. At the moment that this report is being presented, nearly half a year later, the statistics have of course changed. In a post-scriptum to the appendix changes are indicated.
2. The evaluation of the situation which results from the analysis of the above-mentioned appendix is as follows.
3. One notes in general that further progress has been achieved in important areas, following the constitutional and legislative changes mentioned in the last report: a number of important changes have been made to the anti-terrorist law and to the criminal code to improve freedom of expression (most notably the abrogation of Article 8 of the law and the striking out of convictions based on that article), further progress has been achieved in preventing torture and ill treatment by the security forces and in ensuring that adequate remedies exist in case of allegations of abuse. There also appears to be progress in the inter-state case, Cyprus v. Turkey, on specific issues. As regards the redress of the consequences of violations for individual applicants, some improvements have been achieved with the entry into force of new legislation providing for certain possibilities of reopening proceedings impugned by the Court. Also the payments of just satisfaction made without respecting the modalities set out in the Court’s judgments are being rectified. In addition, Turkey has complied with the judgment in the Loizidou case as far as payment of just satisfaction is concerned
4. It is however a cause for concern that the actions undertaken in the above areas fall short of full compliance and that no recent action has been reported to remedy fully the violations of the European Convention on Human Rights (ECHR) due to the dissolutions of political parties.
5. This is in particular so because of the time which has passed since the attention of the Turkish authorities was first drawn to the violations at issue through judgments by the Court, and stresses the importance of ensuring execution without delay: the problems relating to the action of the security forces have been, just as the general aspects of the Loizidou case (rights of property of displaced Greek Cypriots), before the Committee of Ministers since 1996, the questions relating to freedom of expression and dissolution of political parties have been before the Committee of Ministers since 1998.
6. In this context the Parliamentary Assembly should stress the importance for the credibility of the action of the Council of Europe that the Committee of Ministers resume consideration of the outstanding questions in the Loizidou case as soon as possible in accordance with the Committee’s ordinary Rules for the application of Article 46 of the ECHR.
7. It is also with the greatest concern that the Parliamentary Assembly finds that the Turkish authorities have refused, without justification, to set free the applicants in the Sadak, Zana, Dicle and Dogan case while awaiting the outcome of the reopened criminal proceedings. In this context the Assembly also expresses its concern for the fairness of the new trial, which led to a renewed conviction of the applicants on 21 April 2004.
Conclusions
8. From the analysis made above it appears that the constitutional, legislative and other changes made so far have gone a considerable way in preventing new violations of the Convention. However reforms have been piecemeal and a number of problematic principles of interpretation remain unchanged. Awaiting a more comprehensive review of the Turkish legal system, legislative or other action to improve the direct effect of the Convention and of the Court’s judgments appears urgent. In this context the Assembly welcomes the declarations made by the Minister of Justice in this direction.
9. More particularly the following legislative action appears urgent:
- a review of the law on the reopening of proceedings to fill the present gaps – ensure its application also to judgments rendered after its entry into force and friendly settlements, secure adequate possibilities of releasing accused persons awaiting the outcome of the new proceedings (see in particular the judgments concerning the freedom of expression);
- legislative and other changes necessary to permit the opening of a Greek secondary school in the northern part of Cyprus;
- further amendment of the anti-terrorist law to comply with requirements of Article 10 of the ECHR (see in particular the cases of S�rek and �zdemir and S�rek II).
10. In addition, there are other decisions which should still be implemented which do not require legislative action:
- comply with the judgment in the case of Institut de Pr�tres fran�ais and others and implement the friendly settlement reached;
- release the applicants in the Sadak, Zana, Dicle and Dogan case;
- ensure the immediate erasure of outstanding consequences of violations of Article10 of the ECHR for all other applicants.
APPENDIX
Extracts from annotated agendas of the Committee of Ministers
Introduction
The last report on Turkey, presented on 5 September 2002, referred to some 175 cases pending for control of execution measures of a general or individual nature. In 62 of these cases all execution measures had, prima facie, been taken, so that the Committee of Ministers was only awaiting the preparation of a draft final resolution to close its examination of the cases, thus leaving some 113 cases with outstanding problems. In addition some 87 cases contained payment problems.
The present report presents, as of 1 November 2003, 207 cases pending control of execution measures of a general or individual nature. All the execution measures had, prima facie, been taken in some 125 of these, i.e. in 63 more cases than the preceding year, so that the Committee of Ministers was only awaiting the preparation of a draft final resolution to close its examination of the cases, thus leaving some 82 cases with outstanding problems, i.e. 31 less than the preceding year.
In addition, some 51 cases presented payment problems, i.e. 36 less then the previous year.
The Court’s judgment of 1998 in the Loizidou case has, however, not been honoured despite an undertaking to do so for 7-8 October 2003. In addition, the Committee of Ministers has noted with concern that three years after the judgment confirming a friendly settlement in the case of “Institut de pr�tres fran�ais et autres” this settlement has not been honoured.
I. Outstanding cases
A. Short list
1. 25 cases concerning freedom of expression (Interim Resolution ResDH(2001)106)
CM/Inf(2003)43 (notably 22678 In�al, judgment of 9/06/98)
2. 5 cases concerning dissolution of political parties
H46-597 25141 Dicle for the Democratic Party (DEP), judgment of 10/12/02, final on 21/05/03
H46-1001 23885 Freedom and Democracy Party (�ZDEP), judgment of 8/12/99 - Grand Chamber
H54-1002 19392 United Communist party of Turkey and others, judgment of 30/01/98
H54-1003 21237 Socialist Party and others, judgment of 25/05/98, Interim Resolution DH(99)245
H46-1004 22723 Yazar, Karatas, Aksoy and le Parti du travail du peuple (HEP), judgment of 9/04/02
3. 46 cases concerning action of the Turkish security forces
CM/Inf(2003)12 Revised
4. H54-899 18954 Zana, judgment of 25/11/97
5. H46-844 29900 Sadak, Zana, Dicle and Dogan, judgment of 17/07/01, Interim Resolution ResDH(2002)59
6. H46-1117 26308 Institut de Pr�tres fran�ais and others, judgment of 14/12/00 – Friendly settlement
7. H46-1116 25781 Cyprus against Turkey, judgment of 10/05/01 – Grand Chamber CM/Inf(2003)14 Revised 3
8. H54-790 15318 Loizidou, judgments of 18/12/96 (merits) and 28/07/98 (just satisfaction) – Interim Resolutions DH(99)680, DH(2000)105 and ResDH(2001)80
9. Control of payment:
- of just satisfaction (time limit expired since less than 6 months): 11 cases
- of default interests: 2 cases
- of just satisfaction(time limit expired since more than 6 months): 11 cases
- concerning shortfalls in payment and other specific problems: 27 cases
10. Cases waiting for the presentation of a draft final resolution:
125 cases pending
B. Detailed list
1. 25 cases concerning freedom of expression
(Interim Resolution ResDH(2001)106) CM/Inf(2003)43
These cases all relate to unjustified interferences with the applicants’ freedom of expression, in particular on account of their conviction by State Security Courts following the publication of articles and books or the preparation of messages addressed to a public audience. In the �zg�r G�ndem case, the Court also concluded that the search operation conducted in the applicant newspaper’s premises had not been necessary in a democratic society and that the respondent Government had failed to comply with their positive obligation to protect the applicant newspaper in the exercise of its freedom of expression. Furthermore, the case �zt�rk Ayse specifically concerns the seizure of a publication (violations of Article 10)[1].
Individual measures: since June 1998 it has been repeatedly stressed in the Committee of Ministers that the applicants’ convictions found to be contrary to Article 10 must be erased from their criminal records and that their civil and political rights, to the extent that they have been restricted as a result of the convictions, must be restored.
On 23 July 2001, the Committee of Ministers adopted Interim Resolution Res DH (2001)106 (see CM/Inf(2003) 43), which, among other things, “urges the Turkish authorities, without further delay, to take ad hoc measures allowing the consequences of the applicants’ convictions contrary to the Convention in the above mentioned cases to be rapidly and fully erased”.
On 4 February 2003 a new law (No 4793) entered into force allowing for the re-opening of domestic proceedings in all cases which have already been decided by the European Court of Human Rights and in all new cases which would henceforth be brought before the European Court. The provisions however exclude re-opening for all cases which were pending before the European Court at the date of entry into force of the law and had not yet been decided, as well as for cases resulting in friendly settlements.
On 10 February 2003, Law No 4809 on suspension of proceedings and sentences concerning crimes committed through the press entered into force. Under certain conditions, this law provides that convictions related to freedom of expression might be erased, including their consequences. Furthermore, on 19 July 2003, Law No 4928 abrogated Article 8 of the Anti-terrorism Act No 3713.
Updated information on the current situation of the applicants and on the concrete follow-up given to Interim Resolution ResDH(2001)106 have been regularly requested (see the information available in this respect in the table appended to document CM/Inf(2003)43).
As regards the annulment of the convictions: According to the information available at the time of preparing these Notes, in at least 7 cases (Mr Arslan; Mr Gerger, Mr In�al, Mr K���k; Mr �zt�rk; Ms �zt�rk Ayse; Mr Polat) the criminal records of the applicants have been erased following procedures under Law No 4809. Similar procedures are pending in respect of at least four other cases (Mr Ibrahim Aksoy; Mr Ceylan; Mr Ahmet Zeki Ok�uoglu; Mr H. Karatas). In the case of Mr Aslantas, the authorities indicated that the applicant’s criminal records had been erased on 25 March 2003, but by letter of 16 April 2003 the applicant contested this information and indicated his intention to request a retrial under Law No 4793. Five other applicants (Mr Arslan; Mr Ceylan; Ms E.K.; Mr Karatas; Mr S�rek) have also filed requests for retrial, following the entry into force of Law No 4793. In the case of Mr Arslan, this request was dismissed on 10 March 2003 on grounds that a new decision would not bring any benefit to the applicant. This decision was confirmed in appeal on 26 March 2003.
As regards the restoration of the applicants’ civil and political rights: According to the information available at the time of preparing these Notes, at least 8 applicants are no longer subject to restrictions of their rights (Mr M.S. Ok�uoglu, Mr U. Erdogdu, Mr S. Ince, Ms P. Sener, Mr K.T. S�rek, Mr Y. �zdemir, Ms �zt�rk Ayse, Mr K���k). Information is expected about the situation of the other applicants, in particular as regards the outcome of the procedures initiated by some of them to this effect and the consequences, if any, of the above-mentioned laws in this respect.
General measures: the question has been raised, since 1998, of the necessity to adapt Turkish law to the requirements of the Convention in order to avoid further violations similar to those found. In particular, the attention was drawn to the need to assess the proportionality of restrictions on freedom of expression in the light of the presence of an “incitement to violence”. Furthermore, since 1999, the Turkish authorities have been invited to introduce a general criterion of truth and public interest in the Anti-Terrorism Law and to amend or abrogate Article 6 of this Law; to review minimum penalties in crimes related to freedom of expression; to adopt specific measures aimed at ensuring the protection of freedom of expression (see CM/Inf(2003)43 for details). At the 834th meeting (April 2003), in connection with the examination of the case of Ayse �zt�rk, questions were raised concerning the reform of the press law under way.
Awareness-raising and training measures: As a preliminary measure, the Ministry of Justice has published the most important judgments against Turkey in Turkish, sending them out in their regular bulletin to judges and prosecutors and making some of them accessible through the Ministry of Justice website (http://www.adalet.gov.tr/aihm/aihmk.htm). Furthermore, at the 741st meeting (February 2001), the Representative of Turkey indicated that an information note would be sent to judges and public prosecutors in order to raise their awareness of the requirements of the Convention. A copy of this note has been requested. In June 2002 a Council of Europe/European Commission Joint Initiative was launched in collaboration with the Turkish authorities, made up of three distinct projects:
i. the development and implementation of short and long-term strategies on the ECHR and the case law thereunder for judges, prosecutors and other public officials;
ii. the creation and launch of a comprehensive campaign to increase awareness and understanding of human rights among the public at large;
iii. a review of certain draft and existing legislation to ensure its conformity with European standards. The implementation of these projects is currently under way.
Legislative measures: In March 2001, the Turkish authorities presented the National Programme containing information on the reforms planned for the “short term” and the “medium term” (respectively 2002 and 2003-2004). Subsequently, on 3 October 2001, a number of constitutional amendments, concerning inter alia the provisions on freedom of expression and information, were adopted and are directly applicable. Since then, a series of packages of laws have been adopted and entered into force respectively on 19 February 2002 (Law 4744); on 9 April 2002 (Law 4748); on 9 August 2002 (Law 4771), on 11 January 2003 (Law 4778), on 4 February 2003 (Law 4793), on 19 July 2003 (Law 4928) and on 7 August 2003 (Law 4963).
These laws have in particular:
- modified Article 159 of the Criminal Code on insult and derision of public bodies by reducing maximum and minimum sanctions and by making them applicable only if the courts consider that there was an “intention” to insult or deride;
- modified Article 312 of the Criminal Code, on incitement to hatred, by limiting its scope to expression constituting an explicit threat to public order and by reducing its maximum penalties;
- modified Article 7 of the Anti-Terrorism Law No. 3713 by specifying that propaganda on behalf of terrorist organisations will incur sanctions if carried out in a manner that encourages resorting to violence or other terrorist means;
- abrogated Article 8 of the Anti-Terrorism Law No. 3713;
- erased prison penalties from the Press law No. 5680 and introduced provisions prescribing the respect of the confidentiality of journalists’ sources.
Although these amendments are aimed at generally improving the situation of freedom of expression, they do not seem to solve all the problems raised by the Court’s judgments. Additional information has accordingly been requested on a number of points and the Turkish authorities were invited to clarify the expected impact of the reforms on freedom of expression in Turkey.
By letters of 16 December 2002, 3 January 2003, 28 March 2003, 25 July 2003 and
15 September 2003, the Turkish authorities have provided examples of the case-law of the Court of Cassation and Security courts, concerning notably the interpretation of the criterion of “threat to public order” in the application of Article 312 of the Criminal Code, as revised in 2002 as well as the interpretation of the criterion of “intention” in the application of Article 159 of the Criminal Code, as revised in 2002. These examples show that the Turkish courts are interpreting Article 312 and 159 of the Criminal Code in accordance with the amendments which resemble, to some extent, to those used by the Court of Strasbourg and may thus prevent, at least as far as Article 312 is concerned, new violations of the Convention. The Turkish authorities expect that these changes and case-law developments will also affect the interpretation of other relevant articles, notably in the Anti-terrorism law. Examples of such developments are expected.2. 5 cases concerning dissolution of political parties
(CM/Inf(98)48) Addendum 4)
H46-597 25141 Dicle for the Democratic Party (DEP), judgment of 10 December 2002, final on 21/05/03 [2]
H46-1001 23885 Freedom and Democracy Party (�ZDEP), judgment of 8 December 1999 - Grand Chamber
H54-1002 19392 United Communist party of Turkey and others, judgment of 30 January 1998
H54-1003 21237 Socialist Party and others, judgment of 25 May 1998, Interim Resolution DH(99)245
H46-1004 22723 Yazar, Karatas, Aksoy and le Parti du travail du peuple (HEP), judgment of 9 April 2002
The cases concern the dissolution of the above-mentioned political parties by the Constitutional Court in 1991, 1992 and 1993, respectively. The United Communist Party and the �ZDEP party were dissolved shortly after their creation, on the mere basis of their programmes. The Socialist Party was dissolved on account of certain statements made by its chairman, Mr Perin�ek. The reasons advanced by the Constitutional Court covered the undermining of the territorial integrity and the unity of the nation by references to the Kurdish people or to Kurdish self-determination (breaches of the Constitution and of various Articles in the Law on Political Parties (LPP). Among those cited by the prosecutor mention may be made of Articles 78, 81 and 101 b) of the LPP. HEP was dissolved in similar circumstances. In the United Communist Party case an additional ground was the title “communist”, banned in Article 96 (3) of the LPP. In the �ZDEP case an additional ground was a perceived aim to abolish the secular nature of the State in violation of Article 89 of the LPP.
The cases also concern the ensuing banning for life of the leaders of the parties from holding similar offices in any other political party.
In all the cases, the Court found violations of the right to freedom of association (Article 11).
The Socialist Party case also concerns the criminal conviction of Mr Perin�ek, subsequent to the Court’s judgment, on account of the same statements as led to the party’s dissolution.
General measures: The judgments of the European Court have been published in Turkish in the Official Bulletin of the Ministry of Justice.
The change of the Constitution in 1995 changed the permanent ban on political activities for members of dissolved parties to a 5-year ban and made it applicable only to party leaders.
The necessity of a further reform of the LPP has been pointed out since May 1998. Such a reform should take away the automatic ban of a party under Article 96�3 of the Constitution on the mere ground that its title contains the word "communist" and abrogate the possibility of dissolving parties solely on the basis of non-violent political speech or programs which respect the rules of democracy. The possibility to ensure the compatibility of Turkish law with the Convention through a change of case-law was also noted (see notably CM/Inf(98)48).
Further amendments to the Constitution of relevance for the execution of the above mentioned judgments, entered into force on 17 October 2001. These amendments have notably introduced a general principle of proportionality and the possibility to resort to less severe sanctions than dissolution of the party in case of violations of the authorized limits of political action, limits which remain, however, unchanged in Article 68 of the Constitution. Subsequently, a number of amendments to the LPP have been adopted on 26 March 2002 in order to ensure that the LPP is in conformity with the Constitution.
During the examination of these different amendments in the course of the 792nd meeting (April 2002), the improvements brought about were noted, but certain hesitations were expressed in view of the absence of any change of several key provisions. Certain more detailed information on positions adopted may be found in Addendum 4. Following this exchange of views, the Deputies agreed to resume consideration of theses cases at their 810th meeting (October 2002) in order to examine any clarifications which might have been made in the meantime through the case-law of Turkish courts, in particular by the Constitutional Court. At the 810th meeting (October 2002) the Turkish Delegation informed the Committee that the Communist Party had been allowed to participate in the general elections, a fact which may be accepted as a change of practice under Article 96/3 of the Constitution. Further information on the effect of the recent constitutional and legislative amendments were however requested. Subsequently, The Turkish Representation furnished some information concerning the additional legislative measures taken in respect of the LPP (see Addendum 4 for details) which entered into force 11 January 2003. According to new amendments, the conditions for being a member of a political party have been eased: being convicted under Article 312 of Penal Code is no longer grounds for a restriction regarding being a member of a political party. Some other restrictions were lifted. The provisions of the LPP (Articles 98,100,102 and 104) were amended so as to conform to the Constitutional amendments. Finally, the political parties were granted the right to appeal against requests of the Chief Public Prosecutor before the Constitutional Court.
During the 834th meeting the Secretariat considered, instead of closing these cases as suggested by the Delegation of Turkey, that it would be more appropriate to wait for a possible evolution of the case-law of the Constitutional Court as regards the effect given to the Convention and to the judgments of the European Court as well as to the other constitutional amendments, in order to adopt, in the light of this evolution, at a subsequent meeting, either the interim resolution, or a final one. At the time of issuing the present document, the Secretariat had not yet received any further information.
Individual measures: The bans on political activities imposed on the applicants following the dissolution of the Parties have all been lifted. The Committee of Ministers found that under former Article 53 (today Article 46�1) of the Convention, Turkey was under an obligation to erase the consequences of Mr Perin�ek’s criminal conviction (see Interim Resolutions DH(99)245 and 529). Mr Perin�ek was conditionally released after having served � of his 14-month prison sentence and, following the application of amnesty legislation, he once again enjoys the civil and political rights which he lost as a result of his conviction, although on the condition that he does not “commit a further crime”. He has lodged a new complaint with the Court on account of this situation (Application No. 46669/99). This complaint has been declared admissible by the Court on 26 February 2002. The Committee is awaiting the outcome of these proceedings.
3. 46 cases concerning action of the Turkish security forces
(CM/Inf(2003)12 Revised)
These cases concern violations of Articles 2, 3, 5, 6, 8 of the Convention and of Article 1 of Protocol No 1, notably in respect of unjustified destruction of homes by the gendarmerie, disappearances, infliction of torture and ill-treatment during police custody and killings committed by members of the security forces. All the cases more specifically highlighted the general problem of the lack of effective domestic remedies capable of redressing violations of the Convention (violations of Article 13).
Since the very beginning of the Committee’s examination of these cases, it has been noted that the violations found are due to a number of structural problems: general attitudes and practices of the security forces, their education and training system, the legal framework of their activities and, most importantly, serious shortcomings in establishing at the domestic level administrative, civil and criminal liability for abuses. Thus, the Committee called upon the Turkish authorities to rapidly adopt comprehensive measures remedying these shortcomings in order to comply with the Court’s judgments.
On 9 June 1999, the Committee adopted Interim Resolution DH(99)434 in which it noted with satisfaction some progress in the adoption of such measures, while at the same time calling on Turkey rapidly to adopt further comprehensive measures to prevent new similar violations.
On 10 July 2002, the Committee adopted Interim Resolution ResDH(2002)98 which anew took stock of the progress in the execution of some 40 judgments concerning the action of the Turkish security forces.
In conclusion of this Resolution the Committee:
WelcomesTurkey's recent enhanced efforts which have resulted in the adoption of various important reforms necessary to comply with the above-mentioned judgments of the European Court;
Calls upon the Turkish Government to focus its further efforts on the global reorganisation of the basic, in-service and management training of Police and Gendarmerie, building notably on the efforts deployed in the framework of the Council of Europe's Police training project, with a view to achieving, without delay, concrete and visible progress in the implementation of the major reforms which were found necessary;
Urges Turkey to accelerate without delay the reform of its system of criminal prosecution for abuses by members of the security forces, in particular by abolishing all restrictions on the prosecutors' competence to conduct criminal investigations against State officials, by reforming the prosecutor's office and by establishing sufficiently deterring minimum prison sentences for persons found guilty of grave abuses such as torture and ill-treatment;
Strongly encourages the Turkish authorities to pursue and develop, in particular in the context of the new Council of Europe/European Commission Joint Initiative, short and long-term training strategies for judges and prosecutors on the Convention and the European Court's case-law, including wider dissemination of translated judgments to the domestic courts, rapid adoption and implementation of the legislation on the Turkish Academy of Justice and inclusion in its curricula of in-depth courses on the Convention;
Calls upon the Turkish Government to continue to improve the protection of persons deprived of their liberty in the light of the recommendations of the Committee for the prevention of torture (CPT);
Invites the Turkish authorities regularly to keep the Committee of Ministers informed of the practical impact of the measures taken, notably by providing statistics demonstrating effective
investigations into alleged abuses and adequate criminal accountability of members of the security forces;
Decides to pursue the supervision of the execution of the present judgments until all necessary measures have been adopted and their effectiveness in preventing new similar violations has been established.
The Deputies are invited to resume consideration of this dossier at their 854th meeting (October 2003) with a view to assessing progress in the execution of all these judgments, in the light of the demands made in Interim Resolution ResDH(2002)98 and of the new information provided to date by the Turkish authorities.
This information will be summarized in an update of the Memorandum that was prepared for the 834th meeting (April 2003) (see CM/Inf(2003)12 Revised).
4. H54-899 18954 Zana, judgment of 25/11/97
The case concerns in particular the fact that the applicant could not appear in person at the hearing before the Court of Appeal which handed down his definitive prison sentence, and the excessive length of the relevant criminal proceedings (violations of Article 6�1).
General measures: The necessity to clarify the effect of Article 226�4 of the Code of Criminal Procedure, which was at the origin of the violation of the right to a fair trial, was raised. In 1998, the Turkish authorities prepared a bill amending this provision. The new provision of the Code (Article 194) will allow a judge not to summon an accused to a hearing only if the latter agrees not to attend. According to the information provided by the Turkish delegation at the 760th meeting (July 2001), the draft law was being examined by parliament. At the 810th meeting (October 2002), the Turkish Delegation specified that the above-mentioned amendment was envisaged as a part of a broader reform of the Code of Criminal Procedure which should be adopted following the general elections of 3 November 2002. At the 819th meeting (December 2002), the Delegation indicated that the aforementioned reform would be adopted in the near future with the forthcoming package of reforms pending before Parliament. The text of the new provision and the confirmation of its final adoption are still awaited.
5. H46-844 29900 Sadak, Zana, Dicle and Dogan, judgment of 17/07/01
Interim Resolution ResDH(2002)59
The case concerns the violation of the right to a fair trial in proceedings before the Ankara State Security Court, which sentenced the four applicants, members of the Turkish Grand National Assembly, to 15 years’ imprisonment in December 1994.
The violations found are the following:
- 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 - see �40 of the judgment);
- lack of timely information about the legal redefinition of the accusation brought against the applicants and lack of sufficient time and facilities to prepare the applicants’ defence (violation of Article 6�3 a and b taken together with Article 6�1 - see ��57-59 of the judgment);
- impossibility to examine or to have examined the witnesses who testified against the applicants (violation of Article 6�3d taken together with Article 6�1 - see ��67-68 of the judgment).
Having found these violations, the Court did not consider it necessary to decide separately the applicants’ complaints under Articles 10, 11 and 14.
Individual measures: In view of the extent of the violations of the right to a fair trial and of their consequences for the applicants, the Turkish authorities were requested, at the 764th meeting (October 2001), to consider urgently specific individual measures to erase these consequences. (cf. Committee of Ministers’ Recommendation R(2000)2 and its Interim Resolution ResDH(2001)106 on the individual measures in cases concerning freedom of expression in Turkey).
Interim Resolution ResDH(2002)59: At the 794th meeting (30 April 2002), as no progress in the execution of the judgment was reported on this point, the Committee of Ministers adopted Interim Resolution in which it
Strongly urges the Turkish authorities, without further delay, to respond to the Committee’s repeated demands that the said authorities urgently remedy the applicants’ situation and take the necessary measures in order to reopen the proceedings impugned by the Court in this case, or other ad hoc measures erasing the consequences for the applicants of the violations found;
On 3 August 2002 a new law came into force which introduced into the penal and civil codes the possibility of reopening proceedings but only in new cases (coming before the Court after 3 August 2002). This new law has been strongly criticized within the Committee of Ministers since it was inapplicable to the four applicants. A new urgent action in their favour was consequently requested. In view of the absence of such an action, the Secretariat has been asked at the 810th meeting (October 2002) to prepare a new draft interim resolution. This has however not been adopted in view of the reopening of the impugned proceedings in Turkey (see below).
Adoption of new legislation and retrial: On 4 February 2003 a new law entered into force allowing the reopening of domestic proceedings in all cases which have already been decided by the European Court and in all new cases which would henceforth be brought before the European Court. The provisions however exclude re-opening for all cases which were pending before the Court at the date of entry into force of the Law (4 February 2003).
On the basis of this new law, the applicants' request for retrial was accepted by the State Security Court of Ankara on 28 February 2003 and seven public hearings of the case have already been held by the same court (on 28 March 2003, 25 April 2003, 23 May 2003, 20 June 2003, 18 July 2003, 15 August 2003 and 15 September 2003). The Committee of Ministers welcomed the reopening of the impugned domestic proceedings.
However, the Committee has noted that successive requests to suspend the execution of the original prison sentence have been rejected by the State Security Court notwithstanding the fact that the applicants continue to suffer the consequences of the violations found, i.e. imprisonment on the basis of an unfair trial. This situation has given rise to calls for further measures to put an end to all negative effects for the applicants of the violations found. These requests have been reiterated at three consecutive meetings of the Committee of Ministers in April, June and July 2003. Moreover it has been suggested that the Prosecutor makes the proprio mutu request that the applicants are released in order to conform to the European Court’s judgment.
The Turkish delegation has indicated that these concerns would be conveyed to the competent authorities. It has also recalled that the question of suspension of the original sentence lies within the competence of the State Security Court. Yet, at the new hearing on 15 September 2003, the State Security Court again rejected the request for release made by the applicants.
Follow-up by the Parliamentary Assembly: From the outset, the Parliamentary Assembly has been closely scrutinising the follow-up to the present judgment. At its 4th part session (23 September 2002) the Assembly held a debate and adopted Resolution 1297(2002) and Recommendation 1576(2002) on the implementation of the Court's judgments by Turkey. In these texts the Assembly, in particular, strongly supported demands to remedy the applicants' situation and urged the Committee of Ministers to use all means at its disposal to ensure compliance with the judgment without further delay.
In its reply to Recommendation 1576(2002), the Committee "welcomes the fact that (…) the criminal proceedings in the aforementioned case are to be reopened before the State Security Court of Ankara. The Committee nevertheless notes that the suspension of the execution of the original prison sentence of the applicants pending the new trial was not approved when the request to re-open proceedings was accepted. The Committee trusts that a new, fair trial will proceed expeditiously so as effectively to erase the consequences of the violations found by the Court."
On 30 April 2003, the Committee received a new written question (CM(2003)69) by Mr Erik Jurgens, a member of the Assembly, in which he "regret[s] notably that the execution of the original prison sentence imposed in the unfair proceedings had not been suspended" and "ask[s] if the Committee does not consider that to comply with the European Court's judgment Turkey must suspend the execution of [this] sentence (…) awaiting the new fair trial". A reply to this question was issued under the reference CM/AS(2003)Quest426 final and transmitted to the Parliamentary Assembly.
General Measures: These measures were adopted notably concerning constitutional reform which has replaced the military judge in the State Security Courts by a civil judge (see the case �iraklar v Turkey, judgment of 28 October 1998, Resolution DH(99)555). As regards the right to a fair trial, this right received constitutional protection as a result of an amendment to Article 36 of the Constitution on 17 October 2001.
6. H46-1117 26308 Institut de Pr�tres fran�ais and others, judgment of 14/12/00 – Friendly settlement, Interim Resolution ResDH(2003)173
The case concerns a Turkish judicial decision of 1993 annulling the applicant Institute’s property entitlement to a plot of land on the grounds that, by letting part of this land to a private company, the applicant Institute was no longer eligible for special treatment as a non-profit body (complaints under Article 1 of Protocol No. 1 and Article 9). The parties concluded a friendly settlement according to which the Government undertook the following obligations:
- The Treasury and the Directorate General of Foundations recognize the right to usufruct to the benefit of the priests representing the applicant Institute. This right to usufruct shall comprise the full use and enjoyment of the land and the buildings thereon and the right to rent the land for profit-making purposes in order to meet its needs;
- The two above-mentioned state authorities agree to undertake the formalities necessary to register their respective declarations in the land register with a view to renewing the life tenancy in favour of the priests who will replace the current usufructuary;
- The Directorate General of Foundations waives its claim to USD 41,670 owed by the applicant Institute in rent collected over the five years since its property title was annulled.
The necessity of urgent compliance with these obligations has been stressed in the Committee of Ministers at each of its DH meetings since October 2001 and the Turkish authorities have been invited to take the necessary measures without further delay.
In 2002, the Turkish Delegation indicated on numerous occasions that the above-mentioned problems were going to be solved, notably through a Decree by the Prime Minister and that the competent national authorities were engaged in negotiations with the applicant Institute in order to establish the division of rent between the State and the applicants.
As no tangible result has been achieved, the Chairman-in-office of the Committee of Ministers sent a letter, dated 6 November 2002, to her Turkish counterpart expressing the Committee’s concern at the non-execution of the friendly settlement and requesting a rapid solution to the problem. By letter of 29 November 2002, the Turkish Minister of Foreign Affairs conveyed the Committee's concerns to the Prime Minister asking him to instruct the competent authorities urgently to implement the friendly settlement.
During the examination of the case at the 819th meeting (December, 2002), the adoption of an Interim Resolution was suggested if no concrete and visible progress was achieved by February 2003. At the 827th meeting (11-12 February 2003) the Committee was informed that the conditions of the usufruct had finally been settled and would soon be formally approved and registered by the Council of Ministers.
In April 2003 however, the applicants' representative indicated to the Secretariat that the conditions of usufruct were still waiting for the approval by the Minister of Finance and by the Council of State and that the time-frame for their final adoption and registration by the Council of Ministers therefore was very uncertain. Subsequently, the Secretariat was informed that the approval of the settlement by the Council of State was even not guaranteed.
Following a decision adopted at the 841st meeting (June 2003), as no further progress was reported by the Turkish authorities, the Chairman of the Committee accordingly sent a new letter, dated 17 June 2003, to Mr G�l, Minister of Foreign Affairs of Turkey.
As no reply was received from the Turkish authorities at the 847th meeting (July 2003), the Deputies decided to resume the examination of the case at the 850th meeting (September 2003).
By letter of 1 August 2003 to the President of the Committee of Ministers, the Minister of Foreign Affairs of Turkey, recalling the difficulties encountered, underlined that they were currently searching for ways to grant the right to usufruct to the priests in charge of the Institute and that the execution of the friendly settlement was imminent. This letter was circulated at the 850th meeting. Under these circumstances, the Deputies invited the Secretariat to prepare a draft interim resolution urging the Turkish authorities to pursue their efforts for a speedy solution of this case, with a view to its adoption at the 854th meeting (7-8 October 2003) should the case not be settled by then.
At the 854th meeting, the Deputies adopted Interim Resolution ResDH(2003)173. In this Resolution, the Committee of Ministers notably welcomed the determination expressed by the Turkish authorities to satisfy the commitments made in the friendly settlement; noted nevertheless with concern that nearly three years after the adoption of the Court’s judgment, the commitments made had not yet been honoured; urged the Turkish authorities to intensify their efforts in order to comply without delay with the Court’s judgment in this case and decided to pursue the supervision of the execution of the judgment, if need be, at each of its forthcoming meetings, until all necessary measures have been adopted.
7. H46-1116 25781 Cyprus against Turkey, judgment of 10/05/01– Grand Chamber, CM/Inf(2003)14 Revised 3
The case relates to the situation that has existed in northern Cyprus since the conduct of military operations there by Turkey in July and August 1974 and the continuing division of the territory of Cyprus. The European Court of Human Rights held that the matters complained of by Cyprus in its application entailed Turkey’s responsibility under the European Convention on Human Rights.
The Court held that there had been the following 14 violations of the Convention:
Greek-Cypriot missing persons and their relatives
- a continuing violation of Article 2 (right to life) of the Convention concerning the failure of the authorities of the respondent State to conduct an effective investigation into the whereabouts and fate of Greek-Cypriot missing persons who disappeared in life-threatening circumstances;
- a continuing violation of Article 5 (right to liberty and security) concerning the failure of the Turkish authorities to conduct an effective investigation into the whereabouts and fate of the Greek-Cypriot missing persons in respect of whom there was an arguable claim that they were in Turkish custody at the time of their disappearance;
- a continuing violation of Article 3 (prohibition of inhuman or degrading treatment) in that the silence of the Turkish authorities in the face of the real concerns of the relatives attained a level of severity which could only be categorised as inhuman treatment.
Home and property of displaced persons
- a continuing violation of Article 8 (right to respect for private and family life, home and correspondence) concerning the refusal to allow the return of any Greek-Cypriot displaced persons to their homes in northern Cyprus;
- a continuing violation of Article 1 of Protocol No. 1 (protection of property) concerning the fact that Greek-Cypriot owners of property in northern Cyprus were being denied access to and control, use and enjoyment of their property as well as any compensation for the interference with their property rights;
- a violation of Article 13 (right to an effective remedy) concerning the failure to provide to Greek Cypriots not residing in northern Cyprus any remedies to contest interferences with their rights under Article 8 and Article 1 of Protocol No. 1.
Living conditions of Greek Cypriots in Karpas region of northern Cyprus
- a violation of Article 9 (freedom of thought, conscience and religion) in respect of Greek Cypriots living in northern Cyprus, concerning the effects of restrictions on freedom of movement which limited access to places of worship and participation in other aspects of religious life;
- a violation of Article 10 (freedom of expression) in respect of Greek Cypriots living in northern Cyprus in so far as school-books destined for use in their primary school were subject to excessive measures of censorship;
- a continuing violation of Article 1 of Protocol No. 1 in respect of Greek Cypriots living in northern Cyprus in that their right to the peaceful enjoyment of their possessions was not secured in case of their permanent departure from that territory and in that, in case of death, inheritance rights of relatives living in southern Cyprus were not recognised;
- a violation of Article 2 of Protocol No. 1 (right to education) in respect of Greek Cypriots living in northern Cyprus in so far as no appropriate secondary-school facilities were available to them;
- a violation of Article 3 in that the Greek Cypriots living in the Karpas area of northern Cyprus had been subjected to discrimination amounting to degrading treatment;
- a violation of Article 8 concerning the right of Greek Cypriots living in northern Cyprus to respect for their private and family life and to respect for their home;
- a violation of Article 13 by reason of the absence of remedies in respect of interferences by the authorities, as a matter of practice, with the rights of Greek Cypriots living in northern Cyprus under Articles 3, 8, 9 and 10 of the Convention and Articles 1 and 2 of Protocol No. 1.
Rights of Turkish Cypriots living in northern Cyprus
- a violation of Article 6 (right to a fair trial) on account of the legislative practice of authorising the trial of civilians by military courts.
The Court also decided, unanimously, that the question of the possible application of Article 41 (just satisfaction) of the Convention was not ready for decision and adjourned consideration thereof.
The Deputies examined this case for the first time at their 760th meeting (July 2001) (see the records of the 760th meeting).
During the second examination of the case at the 764th meeting (October 2001) delegations strongly supported the proposal made by the Delegation of Liechtenstein that the Committee should follow the approach already proposed by the Director General of human rights at the 760th meeting, that is, identifying specific categories of violations according to the complexity of the execution measures required:
- the question of missing persons,
- the living conditions of Greek Cypriots in northern Cyprus,
- the rights of Turkish Cypriots living in northern Cyprus,
- the question of the homes and property of displaced persons.
The Liechtenstein Delegation proposed that Delegations concentrate on some of the violations presented under the heading “Living conditions of Greek Cypriots in northern Cyprus” specifically in the Karpas region, as well as the problem of the powers of the military courts presented under heading “Rights of Turkish Cypriots living in northern Cyprus”. As indicated by the Chairman in his summing-up, the procedure adopted for the examination of this case should not prevent the Deputies from pursuing in parallel an examination of the other issues raised in the Court’s Judgment.
At the 783rd meeting (February 2002), the Delegation of Turkey stated that it was in agreement with the approach suggested at the 764th meeting.
At the 792nd meeting, it was noted that a large number of Delegations considered that the question of missing persons should be examined as a matter of priority. At the same meeting the Delegation of Turkey gave a certain amount of information which was distributed at its request to all Delegations. The Delegation of Turkey particularly indicated that the legislative practice of authorising the trial of civilians by military courts no longer took place: judges who sit on courts which try civilians are chosen from amongst civilian judges by an independent body whose members themselves are civilians.
At the 798th meeting, the discussions focused in particular on the situation of missing persons and the role played by the Committee on Missing Persons in Cyprus (CMP). Whilst the Turkish Delegation underlined the importance of the CMP, the contribution of Turkey to the work of the CMP and the necessity of reactivating it, several other delegations referred to the text of the Court’s judgment. In fact, in its judgment, the Court considers “that the respondent State’s procedural obligation at issue cannot be discharged through its contribution to the investigatory work of the CMP … (and) it notes that, although the CMP’s procedures are undoubtedly useful for the humanitarian purpose for which they were established, they are not of themselves sufficient to meet the standard of an effective investigation required by Article 2 of the Convention, especially in view of the narrow scope of that body’s investigations”.
At the 810th meeting (October 2002) the Greek Delegation asked that special attention be given to the “living conditions of Greek Cypriots in northern Cyprus” at the 819th meeting.
At the 819th meeting (December 2002), the Committee decided to postpone the examination of the case to the 827th meeting (February 2003).
At the 827th meeting, the Committee requested that a Memorandum be prepared by the Secretariat for discussion at the 834th meeting (9-10 April 2003) summarising the information available so far and indicating those areas where information is still awaited. The Memorandum was issued under the reference CM/Inf(2003)14.
At the 834th meeting (April 2003), the Deputies resumed their discussions on the questions of "missing persons" and of the living conditions of Greek Cypriots in northern Cyprus and new information was submitted and discussed on the Military Court in particular.
Subsequently, on 28 May 2003, the Director General of Human Rights addressed a letter to the Turkish authorities inviting them to forward “certain further clarifications and/or additional information” in respect of some outstanding issues under item 3 of the Memorandum (legislative practice of authorising the trial of civilians by military courts).
At the 841st meeting (June 2003), the discussions focused in particular on the living conditions of Greek Cypriots in northern Cyprus. The Turkish Representative requested that item 3 (legislative practice of authorising the trial of civilians by military courts) be examined at the 854th meeting (October 2003) in order to allow his authorities to submit the additional information requested by the Director General of Human Rights in his letter of 28 May 2003.
The Chairman, summing up the discussion, stated that “the debates should be structured in a more focused way on the basis of the categories of violations identified beforehand by the Committee of Ministers, indicating in advance the category or categories selected for the meeting. Accordingly, at the 847th meeting (July 2003), discussions would focus on the living conditions of Greek Cypriots living in the Karpas region of northern Cyprus. At the 854th meeting (October 2003), all four categories would be on the agenda but the Chairman intended to focus in particular on the question of the military courts and of missing persons. He also insisted on the importance of receiving relevant information in writing and in advance of the meeting”.
The Delegations concerned were invited by the Chairman to furnish copies of their interventions together with any other relevant additional information, in particular on the living conditions of Greek Cypriots in northern Cyprus (discussed at length at the meeting) to the Secretariat in order to allow the latter to update the Memorandum CM/Inf(2003)14.
On 27 June 2003, the Secretariat received the text of the intervention of the Representative of Turkey made at the 841st meeting together with additional information in respect of the living conditions of Greek Cypriots living in northern Cyprus.
At the 847th meeting (July 2003), the discussions focused in particular on the living conditions of Greek Cypriots in northern Cyprus.
The interventions of the Turkish and Cypriot delegations were received by the Secretariat shortly afterwards.
Furthermore, the Turkish authorities submitted additional information to the Secretariat by letters of 8 and 12 September 2003.
The revised Memorandum (CM/Inf(2003)14 Revised 3) takes into account the information received.
8. H54-790 15318 Loizidou, judgments of 18/12/1996 (merits) and 28/07/98 (just satisfaction) – Interim Resolutions DH(99)680, DH(2000)105, ResDH(2001)80 Addendum 4, DH(2003)190 and DH(2003)191
At the present stage of the examination of the case the Deputies have decided to concentrate on the question of payment of the just satisfaction awarded in the last-mentioned judgment on account of the violation of the applicant’s right to the peaceful enjoyment of certain properties located in the northern part of Cyprus (violation of Article 1 of Protocol No. 1). The Court specified that payment was to take place within 3 months, i.e. before 28 October 1998.
As Turkey did not pay the just satisfaction awarded, the Chairman of the Committee of Ministers, the Icelandic Minister of Foreign Affairs, on 22/06/1999 wrote to his Turkish counterpart expressing the Committee’s concern regarding the failure to execute the judgment.
Payment still not having taken place, the Committee adopted, on 6 October 1999, Interim Resolution DH(99)680, strongly urging Turkey to review its position and to pay the just satisfaction awarded. As payment still remained outstanding, the Chairman of the Committee, the Irish Minister of Foreign Affairs, wrote a new letter on 4 April 2000 to his Turkish counterpart reiterating the Committee’s expectation that Turkey ensure payment in the near future.
The reply of the Turkish Ministers of Foreign Affairs indicated that Turkey did not consider itself to have either the competence or the jurisdiction to execute the Court’s judgment.
On 12 July 2000, the Deputies, in response, adopted a new Interim Resolution DH(2000)105, declaring that the refusal of Turkey to execute the judgment of the Court demonstrates a manifest disregard for its international obligations, both as a High Contracting Party to the Convention and as a member State of the Council of Europe and insisted strongly, in view of the gravity of the matter, that Turkey comply fully and without any further delay with the European Court of Human Rights’ judgment of 28 July 1998.
At the 749th meeting (April 2001) the Turkish Delegation presented a payment proposal subjected, however, to conditions deemed unacceptable by the other delegations.
In the continued absence of payment, the Committee adopted on 26 June 2001 a new Interim Resolution ResDH(2001)80 in which it recalled its previous Interim Resolutions and stated that:
“Very deeply deploring the fact that, to date, Turkey has still not complied with its obligations under this judgment;
Stressing that every memberState of the Council of Europe must accept the principles of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms;
Stressing that acceptance of the Convention, including the compulsory jurisdiction of the Court and the binding nature of its judgments, has become a requirement for membership of the organisation;
Stressing that the Convention is a system for the collective enforcement of the rights protected therein,
Declares the Committee’s resolve to ensure, with all means available to the organization, Turkey’s compliance with its obligations under this judgment,
Calls upon the authorities of the member States to take such action as they deem appropriate to this end.”
When the Deputies examined the matter at their 783rd meeting (February 2002), the Turkish Delegation reiterated the proposal made at the 749th meeting. Recalling that the conditions attaching to this proposal were unacceptable, several delegations presented proposals in order to make possible progress on the payment question.
At the 792nd meeting (April 2002), different proposals regarding payment of the sums awarded were discussed. The proposals examined were mainly based on the idea of a payment to the Council of Europe, which should forward the sums, including default interest, to the applicant. The Delegations of Greece and Cyprus objected to such a payment method as it would not correspond to the Court’s judgment, which ordered payment to the applicant. Several delegations asked Turkey to provide further clarifications as to the exact content of its own payment proposal.
The Chairman also presented to the Deputies a letter from the applicant in which she expressed her frustration and anguish about Turkey’s unwillingness to comply with the judgment and asked to be authorised to address the Committee in person at a forthcoming meeting. A short discussion followed indicating that the Deputies were not inclined to grant the request. A negative reply has subsequently been sent by the Chair to the applicant.
For procedural reasons, the case could not be examined at the 796th meeting (May 2002) and the examination was postponed to the 798th DH meeting (June 2002). The Chairman indicated that he would in the meantime continue his consultations with interested delegations. At the 798th (June 2002) and 803rd (July 2002), 810th (October 2002), 819th (December 2002) and 827th meeting (February 2003) meetings no information regarding the payment was available. At the last-mentioned 827th meeting, considerable concern was expressed regarding this situation and it was decided to resume consideration of the case at the 832nd meeting (19 March 2003), also bearing in mind the fact that the Committee of Ministers intended adopting its reply to Parliamentary Assembly Recommendation 1576 (2002) on the execution of Court judgments by Turkey in time for the Assembly’s next part-Session (31 March - 4 April 2003).
At the 832nd meeting (19 March 2003), a declaration made by the European Union concerning this case received broad support from delegations. At the same meeting, the Turkish Delegation made a statement. These statements are reproduced in Addendum 4.
Following a comprehensive debate, the Deputies agreed to reply to Recommendation 1576 that the Turkish authorities had indicated at recent Committee of Ministers’ meetings their determination to comply with the Court’s judgment of 28 July 1998 and that it expected to receive shortly information on concrete steps to this effect. At the 834th meeting (9-10 April 2003) Delegations insisted on the importance of the Turkish authorities providing for the 841st meeting (3-4 June 2003) a clear, concrete and positive proposal, in line with the judgment, concerning the payment of the just satisfaction.
Recalling member states’ collective responsibility, the Chairman interpreted the outcome of the debate of the 834th meeting as a unanimous call by delegations that Turkey should make a clear, concrete and positive proposal, in line with the judgment, concerning payment of the just satisfaction for the 841st meeting in June. This proposal should be submitted in time to be considered by delegations and by the Secretariat before the meeting. The Turkish delegation had taken careful note of what had been said and undertaken to report it to its authorities.
The Secretariat was furthermore invited to begin work, if appropriate depending on the content of the information to be supplied by the Turkish Delegation and in time for the 841st meeting, on drafting a possible fourth interim resolution which would renew the Committee’s insistence on payment and indicate the measures contemplated in case of non-payment.
The Chairman also noted the proposal made by certain delegations to accept, if necessary, a method of payment along the lines of that proposed earlier by Turkey. These delegations invited the Turkish authorities to restate this proposal, but without the elements which had been found unacceptable by the Committee.
He reminded Turkey that in all objectivity this case had remained on the Committee of Ministers’ agenda much too long and insisted on the importance and urgency of taking effective action.
At the 841st meeting the Representative of Turkey confirmed his authorities commitment to close the Loizidou case but asked for more time for his authorities to give effect to their proposals concerning the payment of the just satisfaction in this case. In response to a question from a delegation, he said that the extra time required would not go beyond October 2003 at the latest. Summing up the debate the Chairman noted that several delegations had stated that they interpreted this answer as meaning that at the 854th meeting (7-8 October 2003) the Deputies would be called upon to examine a draft resolution closing the examination of the payment question.
Noting that the Representative of Turkey had not been in a position to give a clear confirmation of this interpretation at the present meeting, it was decided to resume consideration of the case at the 844th meeting (19 June 2003).
At the 844th meeting the representative of Turkey stated that his authorities had “initiated the measures necessary to enable the Committee to take note of payment of the just satisfaction award and approve a draft final resolution at the DH meeting on 7 and 8 October.”
The payment was made on 2 December 2003.
9. Supervision of the payment of the capital sum of the just satisfaction as well as where due, of default interest, in cases where the deadline for the payment expired less than 6 months ago
13 cases against Turkey
Just satisfaction to be paid
H46-607 27214 C.S.Y., judgment of 04/03/03, final on 04/06/03
H46-596 24351 Aktas, judgment of 24/04/03
H46-597 25141 Dicle for the Democratic Party (DEP), judgment of 10/12/02, final on 21/05/03
H46-598 40153+ �etin and others, judgment of 13/02/03, final on 13/05/03
H46-599 26546 Acar Ahmet, judgment of 30/01/03, final on 30/04/03
Independence and impartiality of the State security courts
H46-600 39324 Demirel, judgment of 28/01/03, final on 28/04/03
H46-601 43818 N.K., judgment of 30/01/03, final on 30/04/03, rectified on 18/02/03
Friendly settlements concerning actions of the security forces and containing undertakings of the Turkish Government
H46-602 28292 Ates, judgment of 22/04/03 - Friendly settlement
H46-603 31845 Dilek Kemal, judgment of 17/06/03 - Friendly settlement
H46-604 46649 G�ler and others, judgment of 22/04/03 - Friendly settlement
H46-606 28504 Merin�, judgment of 17/06/03 - Friendly settlement
Default interest to be paid
H46-609 25656 Orhan Salih, judgment of 18/06/02, final on 06/11/02
H46-610 23536 Baskaya and Ok�uoglu, judgment of 08/07/99
Section 3.b – DH 854
Supervision of the payment of the capital sum of the just satisfaction in cases where the deadline for payment expired more than 6 months ago
Some of the cases appearing under this section concern late payment for reasons beyond the control of the governments concerned.
11 cases against Turkey
H46-832 22876 Semse �nen, judgment of 26/01/02, final on 14/05/02
H54-790 15318 Loizidou, judgments of 18/12/96 (merits) and 28/07/98 (just satisfaction)
Interim Resolutions DH(99)680, DH(2000)105 and ResDH(2001)80
H46-791 25723 Erdogdu, judgment of 15/06/00
H46-792 28635 Aksoy Ibrahim, judgment of 10/10/00, final on 10/01/01
H46-793 27308 Demiray, judgment of 21/11/00, final on 04/04/01
H46-794 34688 Akin, judgment of 12/04/01
Cases concerning delays by the administration in paying additional compensation for expropriation and the applicable rate of default interest
H46-795 19279 G��men and others, judgment of 30/01/01, final on 30/04/01
H46-796 19285 Karabulut Cemile and others, judgment of 30/01/01, final on 30/04/01
H46-797 19303 Sen Celal and Keziban, judgment of 10/04/01, final on 10/07/01
H46-798 27694 A.S., judgment of 28/03/02 – Friendly settlement 28/06/2002
H46-799 37087 Bekmezci and others, judgment of 27/06/02 - Friendly settlement, rectified on 19/09/02 and 03/04/03
Section 3.b – DH 854
Examination of special payment problems (for example the disappearance of the applicant, disputes regarding the exact amount paid as a result of exchange rate problems or administrative fees)
27 cases against Turkey
H46-804 30947 Alpay, judgment of 27/02/01 – Friendly settlement
H46-805 26093 B.T. and others, judgment of 14/11/00 – Friendly settlement
H46-806 28340 B�y�kdag, judgment of 21/12/00, final on 21/03/01
H46-807 25182 Canko�ak, judgment of 20/02/01, final on 20/05/01
H46-808 25724 Cihan, judgment of 30/01/01 – Friendly settlement
H46-809 31963 �zel and others, judgment of 27/02/01, final on 27/05/01
H46-810 27697 Yasar and others, judgment of 14/11/00, final on 14/02/01
H46-811 19310 Yilmaz Hamit, judgment of 10/04/01, final on 10/07/01
H46-812 19308 Yilmaz Zekeriya, judgment of 10/04/01, final on 10/07/01
In these cases the applicants and/or the Secretariat have identified various problems relating to the payment of just satisfaction. These problems concern mostly more or less substantial shortfalls in payment, due among other things to currency conversion and/or delays in payment (default interest).
The Turkish authorities have undertaken to examine these problems with a view to settling the outstanding amounts due in accordance with the Court’s judgments. Information is awaited on the progress made to that effect.
Action of the Turkish security forces
H54-813 22729 Kaya Mehmet, judgment of 19/02/98, Interim Resolutions DH(99)434 and ResDH(2002)98
H54-814 21893 Akdivar, �i�ek, Aktas, Karabulut, judgment of 16/09/96, Interim Resolutions DH(99)434 and ResDH(2002)98
H54-815 24276 Kurt, judgment of 25/05/98, Interim Resolutions DH(99)434 and
ResDH(2002)98
H54-816 23818 Ergi, judgment of 28/07/98, Interim Resolutions DH(99)434 and ResDH(2002)98
H46-817 23763 Tanrikulu, judgment of 08/07/99, Interim Resolution ResDH(2002)98
H46-818 22535 Kaya Mahmut, judgment of 28/03/00, Interim Resolution ResDH(2002)98
H46-819 23531 Timurtas, judgment of 13/06/00, Interim Resolution ResDH(2002)98
H46-820 21986 Salman, judgment of 27/06/00 – Grand Chamber, Interim Resolution ResDH(2002)98
H32-821 23179 Yilmaz, Ovat, Sahin and D�ndar, Interim Resolutions DH(99)434 and
ResDH(2002)98
H46-822 24396 Tas Besir, judgment of 14/11/00, Interim Resolution ResDH(2002)98
H46-823 23819 Bilgin Ihsan, judgment of 16/11/00, Interim Resolution ResDH(2002)98
H46-824 22676 G�l Mehmet, judgment of 14/12/00, Interim Resolution ResDH(2002)98
H46-825 22493 Berktay, judgment of 01/03/01, final on 01/06/01, Interim Resolution ResDH(2002)98
H46-826 24490 Sarli, judgment of 22/05/01, Interim Resolution ResDH(2002)98
H46-827 23954 Akdeniz and others, judgment of 31/05/01, Interim Resolution
ResDH(2002)98
Cases concerning freedom of expression
H46-829 23144 �zg�r G�ndem, judgment of 16/03/00
H46-830 26680 Sener, judgment of 18/07/00
H46-831 26976 S�rek Kamil Tekin V, judgment of 16/07/02 - Friendly settlement
Post-Scriptum
As compared to the situation on 1 November 2003, the situation today 28 April 2004 has not changed dramatically:
77 cases have been closed and 69 are presently ready for closure – only, however, on the basis of old reforms. So far no cases have been closed since November 2003 on the basis of recent reforms - major candidates for such decisions are probably cases involving violations of freedom of expression as a result of the application of Article 8 of the anti-terrorist law, as this Article has now been abolished.
The list of outstanding problems remains largely unchanged.
The general problem of the inapplicability after February 2003 of the new legislation on the reopening of proceedings has not been solved. No reopening is presently possible to remedy violations of the Convention established by the European Court of Human Rights.
There are now 27 cases concerning freedom of expression instead of 25.
There are now 6 cases concerning dissolution of political parties instead of 5.
There are now 52 cases concerning actions of the Turkish security forces instead of 46.
The Zana judgment has still not been executed.
The Sadak, Zana, Dicle and Dogan case remains unexecuted despite a new interim resolution calling for the applicants' release (Interim Resolution (2004)31 of 6 April 2004) and the Chairman's statement of 22 April 2004 (following the confirmation of the conviction).
The case of Institut de Pr�tres fran�ais and others still remains unexecuted despite some progress - it would appear that problems remain in ensuring that the usufruct can be awarded not only to one of the priests currently in charge of the Institute but also to his successors;
The judgment in the case of Cyprus against Turkey remains unexecuted - particular attention is presently given to the problem of missing persons and schooling.
The Loizidou judgment has been executed as far as payment is concerned but the questions of individual and general measures are still outstanding. Two similar judgments were brought before the Committee of Ministers for execution control in December 2003.
Besides a number of clone cases relating to situations already solved, certain new problems have been brought before the Committee of Ministers:
Problems relating to the fairness of criminal proceedings before the State Security Courts (G�nes Hulki judgment, final on 19 September 2003)
Problems relating to the method for fixing expropriation compensation (Yiltas Yildiz Turistik Tesisleri AS judgment, final on 24 September 2003)
Problems relating to freedom of peaceful assembly in northern part of Cyprus (Djavit An judgment, final on 9 July 2003)
Problems relating to the protection against forced gynaecological examinations during detention (Y.F judgment, final on 22 October 2003)
Problems relating to the absence of efficient means to enforce visiting rights in respect of a child (Gudrun Hansen Sophia judgment, final on 23 December 2003).
Outstanding payment controls remain largely unchanged:
No information on payment has at this moment been received in the following number of cases where the:
- time-limit expired less than 6 months ago: there are now 18 cases instead of 11
- default interest is due: there are now 4 cases instead of 2
- time-limit expired more than 6 months ago: there are now 31 cases instead of 27
Reporting committee: Committee on Legal Affairs and Human Rights
Reference to committee: Resolution 1268 (2002)
Draft resolution adopted unanimously by the Committee on 29 April 2004
Members of the Committee: Mr Lintner (Chairperson), Mr Marty, Mr Jaskiernia, Mr Jurgens (Vice-Chairpersons), Mrs Ahlqvist, Mr Ak�am, Mr Alevras, Mr Alibeyli, Mr Arabadjiev, Mrs Arifi, Mr Ates, Mrs Azevedo, Mr Barquero V�zquez, Mr Bartumeu Cassany, Mrs Bemelmans-Videc, Mr Berisha, Mr Bindig, Mr Bruce, Mrs Christmas-M�ller (alternate: Mrs Garsdal), Mr Cilevics, Mr Coifan, Mr Contestabile, Mr Davis, Mr Engeset, Mrs Err, Mr Fedorov, Mr Fico, Mr Frunda, Mr Gedei, Mr Goris, Mr Grebennikov, Mr Guardans, Mr G�nd�z, Mrs Hajiyeva, Mrs Hakl, Mr Holovaty, Mr Ivanov, Mr Jakic, Mr Jurica, Mr Kaufmann (alternate: Mr Maissen), Mr Kelber, Mr Kelemen, Mr Kovalev (alternate: Mr Sharandin), Mr Kroll, Mr Kroupa, Mr Kucheida, Mrs Leutheusser-Schnarrenberger, Mr Manzella, Mr Martins, Mr Masi, Mr Masson, Mr McNamara, Mr Monfils, Mr Nachbar, Mr Nikolic, Mr Olteanu, Mrs Ormonde (alternate: Mr Mooney), Mrs Pasternak, Mr Pehrson, Mr Pellicini, Mr Pentchev, Mrs P�tursd�ttir, Mr Piscitello, Mr Poroshenko, Mrs Postoica, Mr Pourgourides, Mr Pullicino Orlando, Mr Raguz, Mr Ransdorf, Mr Rochebloine, Mr Rustamyan, Mr Sol� Tura, Mr Spindelegger, Mr Stankevic, Mr Symonenko, Mr Takkula, Mrs Tevdoradze, Mr Varvitsiotis, Mr Wilkinson, Mrs Wohlwend, Mr Zhirinovsky, Mr Žižic
N.B. The names of those members who were present at the meeting are printed in italics.
Secretaries to the Committee: Ms Coin, Mr Schirmer, Mrs Clamer, Mr Milner
[1] Furthermore, in the cases of Baskaya & Ok�uoglu and E.K., the sentence imposed was not provided by law (violation of Article 7). Some of these cases also concern the independence and impartiality of State Security Courts (violation of Article 6�1) and measures have already been adopted in order to solve this problem, thus preventing new similar violations (see Resolution DH(99)255 adopted in the case of Ciraklar).
[2] This case also appears in sub-section 3.a.