Interim Resolution CM/ ResDH (2021)110

Execution of the judgments of the European Court of Human Rights

Öner and Türk group (Application No. 51962/12), Nedim Şener group (Application No. 38270/11), Altuğ Taner Akçam group (Application No. 27520/07) and Artun and Güvener group (Application No. 75510/01) v. Turkey

(Adopted by the Committee of Ministers on 9 June 2021 at the 1406 th meeting of the Ministers ’ Deputies)

Application

Case

Judgment of

Final on

51962/12

ÖNER AND TÜRK GROUP (List of cases CM/Notes/1406/H46-35-app )

30/06/2015

38270/11

NEDÄ°M ÅžENER

08/07/2014

08/10/2014

53413/11

ÅžIK

08/07/2014

08/10/2014

16538/17

ÅžAHÄ°N ALPAY

20/03/2018

20/06/2018

13237/17

MEHMET HASAN ALTAN

20/03/2018

15064/12

RAGIP ZARAKOLU

15/09/2020

15/12/2020

27520/07

ALTUĞ TANER AKÇAM

25/01/2012

29680/05

DÄ°LÄ°PAK

15/09/2015

02/05/2016

6586/05

GÃœZEL No. 3

24/07/2007

24/10/2007

871/08

ÖZER No. 2

26/04/2010

66327/09

BALBAL

10/10/2017

10/10/2017

37048/97

DEMIRTAÅž NURETTIN

09/10/2003

Friendly settlement

37721/97

ERKANLI

13/02/2003

Friendly settlement

75510/01

ARTUN AND GÃœVENER

26/06/2007

26/09/2007

30905/09

ALİ ÇETİN

20/06/2017

20/06/2017

70607/12

ATAÇ

17/12/2019

324/10

DEMÄ°R

07/01/2020

07/01/2020

44982/07

ONAL No. 2

02/07/2019

02/10/2019

11314/10

SEÄžMEN

17/03/2020

17/03/2020

57878/10

SEVİNÇ

24/03/2020

24/03/2020

30569/09

UZAN

20/03/2018

10/09/2018

27167/12

ZÃœMRÃœT

17/03/2020

17/03/2020

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 the unjustified and disproportionate interferences with the applicants ’ freedom of expression on account of criminal proceedings initiated against them under various articles of the Criminal Code or Anti-Terrorism Law for having expressed opinions that did not incite hatred or violence, and the consequent chilling effect on society as a whole; the pre-trial detention of journalists, in the absence of relevant and sufficient reasons; prosecutions under Article 301 of the Criminal Code, which the Court found not to meet the “quality of law” requirement it view of its unacceptably broad terms; and criminal convictions for insulting public institutions, including the President (violations of Article 10 and also of Article 5 in some cases);

Recalling that the problem of the disproportionate application of the criminal law in Turkey against persons who express critical or unpopular opinions has been pending before the Committee in relation to various judgments for over 20 years;

Noting with grave concern that, despite the large number of judgments delivered by the European Court finding similar violations, the Committee ’ s repeated expressions of concern and the worrying indications about the present situation revealed by the available information, the authorities have not provided information in full as requested by the Committee;

Noting with concern in particular that no statistical information was provided to the Committee on the number of prosecutions and convictions for the offences at issue in these cases, including more specifically as regards journalists, and stressing again that such statistical information is crucial to allow the Committee to assess the real situation;

Recalling also that, notwithstanding the good practice of the higher courts, in particular the Constitutional Court, the prosecutors and lower courts continue to apply the criminal law without ensuring the respect for freedom of expression; noting in this context, with deep regret, that the authorities failed to issue a high level political message to support the practice of the higher courts, thereby falling to address the issue of the need for a complete change of culture throughout the criminal justice system, towards an attitude of tolerating the free expression of a diversity of views;

Noting moreover, with deep concern, that despite the Committee ’ s repeated calls and the Court ’ s clear case-law indicating that Article 301 of the Criminal Code (publicly denigrating the Turkish Nation, the organs and institutions of the State) is too broadly drafted for its application to be foreseeable, the Turkish authorities have not amended this provision and have not indicated any other legislative changes they envisage to align the domestic legislation which has led to violations of the right to freedom of expression, with the Convention ’ s standards;

Noting also with concern the lack of indication of the measures envisaged to remedy the violations resulting from the application of Articles 125 and 299 of the Criminal Code concerning the offences of insulting public officials, including the President of the Republic;

Noting, finally, with interest, the recent adoption of the new Human Rights Action Plan envisaging the strengthening of the freedom of expression in Turkey; welcoming furthermore, the swift decision of the Supreme Court of Cassation to release the applicant in the case of Ahmet Hüsrev Altan on the day following the delivery of the judgment by the European Court on 13 April 2021 (not final) which found that the pre-trial detention of this journalist since 2016 was unlawful;

URGED the authorities to provide detailed statistical information covering the last five years showing the total number of prosecutions and convictions for the offences in these groups of cases and also, given the particular importance accorded to freedom of the press by the Court in its case-law, information on the number of journalists prosecuted, convicted and held in pre-trial and post-conviction detention, with details of the allegations involves;

STRONGLY URGED the authorities to amend Article 301 of the Criminal Code in light of the Court ’ s clear case-law and to consider further legislative changes of the Criminal Code and the Anti-Terrorism law to clarify that the exercise of right of freedom of expression does not constitute an offence ;

URGED them to send a high-level political message, to support the good practice of the higher courts, underlining that freedom of expression is valued in Turkish society and that the criminal law is not intended to be used as a tool to restrict it;

ENCOURAGED them again to continue with training and appraisals for judges and prosecutors on the application of criminal law in compliance with the right to freedom of expression;

INVITED the authorities to consider amending Article 125 and abrogating 299 of the Criminal Code in accordance with the Court ’ s case-law and the emerging European consensus towards decriminalisation of defamation of a Head of State;

STRONGLY ENCOURAGED them 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 and to strengthen freedom of expression and assembly in general; EXPRESSED in this respect the readiness of the Council of Europe to provide assistance to this end;

INVITED the authorities to provide information on the reopening of the proceedings or on the outcome of the reopened proceedings in the cases Selahattin Demirtaş (No. 3), Bayar, Kınık , Ali Gürbüz , Mart and Others, Mehdi Tanrıkulu , Cin , Kok , Güllü , Nejdet Atalay , Aktan , Bakır , Özer (No. 3), Süer , Nurettin Demirtaş (37048/97), Uzan , Seğmen , Demir and Ataç ; on the grounds for the refusal for reopening and on other possible measures in the case of Arslan and Others (as concerns the applicant Olcay Bayraktar ) and on the pending criminal proceedings in the cases Sahin Alpay and Ragip Zarakolu ,

DECIDED to resume consideration of these groups of cases at the latest during its March 2022 (DH) meeting.