Interim Resolution CM/ResDH(2021)195

Execution of the judgments of the European Court of Human Rights

Batı and Others group v. Turkey

(Adopted by the Committee of Ministers on 16 September 2021

at the 1411 th meeting of the Ministers’ Deputies)

Application No.

Case

Judgment of

Final on

33097/96+

BATI AND OTHERS

03/06/2004

03/09/2004

58026/12

AKIN

17/11/2020

17/02/2021

41844/09

AMÄ°NE GÃœZEL

17/09/2013

17/12/2013

35872/08

BAÅžBÄ°LEN

26/07/2016

81532/12

KACAR

07/07/2020

07/07/2020

34491/97

CEYHAN DEMIR AND OTHERS

13/04/2005

27872/03

GASYAK AND OTHERS

13/10/2009

13/01/2010

35072/97+

ÅžIMÅžEK AND OTHERS

26/07/2005

26/10/2005

15014/11

HASAN KÖSE

18/12/2018

06/05/2019

50059/11

HASAN YAÅžAR AND OTHERS

11/10/2016

06/03/2017

65146/12

MIZRAK AND ATAY

18/10/2016

18/01/2017

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the final judgments transmitted by the Court to the Committee in these cases and to the violations established concerning ineffectiveness of investigations, criminal prosecutions and disciplinary proceedings in relation to killing, torture and ill-treatment and excessive use of force by the police and security forces, including in the course of arrests, during police custody and interrogation and while dispersing peaceful demonstrations (procedural violations of Articles 2 and 3 of the Convention);

Recalling that a number of important general measures have been adopted since the first judgments became final nearly two decades ago, such as, entry into force of the current Criminal Code and the Code on Criminal Procedure in 2005, lifting of prescription periods for torture, and setting up the Law Enforcement Monitoring Commission;

Noting however that a number of questions are still outstanding, particularly regarding the ambiguity on the application of administrative authorisation with respect to the offence of excessive use of force and within the context of counter terrorism operations, lack of thoroughness in investigations, lenient attitude of the domestic courts towards state agents, and lack of disciplinary investigations in most cases where criminal investigations are initiated against state agents;

Noting with concern that, despite the large number of judgments delivered by the European Court concerning ineffectiveness of investigations in Turkey and the Committee’s repeated expressions of concern to this effect, the authorities have not provided information in full as requested by the Committee ;

Noting with interest the recent adoption of the new Human Rights Action Plan and welcoming that it aims in particular to review the provisions on the suspension of pronouncement of judgment and the suspension of sentence for the purpose of improving the criminal justice system; to abolish statutory limitation periods for disciplinary investigations concerning torture; to enhance effectiveness of the Law Enforcement Monitoring Commission; and to create a database system pertaining to investigations and prosecutions into the allegations of torture and ill-treatment;

Welcoming further the continuing approach of the Constitutional Court which follows the case-law of the European Court while stressing at the same time the need for its jurisprudence to be followed by all domestic courts and prosecution offices;

Noting with interest the authorities’ continued commitment to the policy of zero tolerance for torture and ill-treatment as mentioned in the 2021 Human Rights Action Plan, and the recent supportive messages from high-level authorities in this respect;

Stressing as regards the individual measures the utmost importance for the authorities to make every effort to ensure that the investigations and criminal proceedings at stake in this group of cases which are not yet time-barred or pending are re-opened quickly or completed in line with the Convention standards; noting in that respect that criminal proceedings pending even after the Court’s judgments in numerous cases in the present group were closed by the Committee with regret on account of the prosecution being time barred;

INVITED the authorities, as regards the administrative authorisation requirement; (1) to consider making further amendments to Law No. 4483, to ensure that there is no ambiguity that administrative authorisation is not required for offences that fall within the scope of Articles 2 and 3 of the Convention; (2) to provide information on the application of the amendment to Section 11 of Law No. 5442; (3) to provide comprehensive information on the number of the “administrative authorisation” requests for offences allegedly committed by law enforcement officers in the course of duty and that would fall within the scope of Articles 2 and 3 of the Convention, along with statistics and sample judgments on the operation in practice of judicial review of refusal of administrative authorisation ; (4) to provide information on the measures taken or envisaged to ensure that, where applied, the administrative authorisation procedure is conducted and concluded in a manner compatible with the independence and impartiality requirements;

URGED the authorities to take specific measures to ensure that public prosecutors conduct effective investigations into the allegations of all forms of torture and ill-treatment and that decisions of non-prosecution are reviewed diligently by the magistrate courts; URGED further the authorities to provide comprehensive and statistical information, in particular on the types of decisions/sentences, including convictions, acquittals, decisions on suspension of the sentence and of the pronouncement of the judgment in cases involving State agents, as well as information on to what the extent sentences have been executed in practice;

ENCOURAGED the authorities to ensure that target time-limits set to complete investigations and proceedings are complied with and priority is given in particular to older cases to avoid prescription; URGED them to consider extending or abolishing the statute of limitation for all serious crimes, such as abuse of power, causing intentional bodily harm, and excessive use of force; INVITED them to submit detailed information on the average length of criminal investigations and criminal proceedings including before criminal courts of first instance, regional courts of appeal, and the Court of Cassation as of September 2019, for offences of torture and aggravated torture (Articles 94 and 95 of the Criminal Code), abuse of power, causing intentional bodily harm, and excessive use of force (Articles 86, 87, and 256);

ENCOURAGED the authorities to adopt concrete legislative and other measures within the shortest time possible to ensure that provisions on suspension of the sentence and pronouncement of the judgment are used with respect to the requirements under Articles 2 and 3 of the Convention, in particular in cases concerning deliberate use of lethal or potentially lethal force by State agents, to ensure that the criminal law protection is both effective and deterrent in practice;

URGED the authorities to take further and result-oriented measures in pursuing allegations against State agents, in particular by ensuring that provisions on the offence of torture is duly applied and classification of criminal offences by judicial authorities do not allow more lenient penalties;

INVITED them in addition to consider abolishing or extending the statutory limitation for disciplinary sanctions for serious offences other than the offence of torture;

URGED the authorities to provide statistical information on the number of disciplinary investigations initiated into the allegations of torture and other forms of ill-treatment including the excessive use of force along with the outcome of these proceedings; INVITED them to take all necessary practical measures in order for the public prosecutors to comply with their obligation to inform the relevant administrative authorities concerning the investigations they have initiated against security forces into the allegations falling under the scope of the present group;

INVITED them to provide concrete information on the measures envisaged to enhance effectiveness of the Law Enforcement Monitoring Commission along with statistical information on the outcome of the disciplinary proceedings initiated into the allegations of torture and other forms of ill-treatment including the excessive use of force;

WELCOMED recent messages from high-level authorities in support of the “zero tolerance for torture” policy given in the context of the 2021 Human Rights Action Plan and ENCOURAGED the authorities to ensure that firm and clear messages of “zero tolerance” continue to be delivered regularly at the highest political level to prevent the occurrence of torture and ill treatment by state agents in the future.

STRONGLY ENCOURAGED the authorities to adopt concrete measures in the framework of the implementation of the new Human Rights Action Plan to address the Court’s findings in the present group of cases; EXPRESSED in this respect the readiness of the Council of Europe to provide assistance;

ENCOURAGED the authorities to consider introducing a practice of re-examining cases concerning alleged violations of Articles 2 or 3 at earlier stages of the Convention proceedings; and INVITED them to provide concrete information on the state of affairs in the cases in this group pending before the Committee and on the measures taken since the Committee’s last examination;

INVITED the authorities to submit an updated and consolidated action plan on all the outstanding questions and DECIDED to resume consideration of this group of cases at its DH meeting in September 2022.