117 6th meeting – 10 July 2013

Appendix 1 8

( Item H46-1 )

Resolution CM/ ResDH (2013) 149

Four cases against Turkey

Execution of the judgments of the European Court of Human Rights

Case

Application No.

Judgment of

Final on

ERTÃœRK HASAN

15259/02

12/04/2005

12/07/2005

KANBUR No. 2

9984/03

14/10/2008

14/01/2009

ÇENGELLI AND ERYILMAZ

287/03

10/06/2008

10/09/2008

KAYA MEHMET

36150/02

06/12/2005

06/03/2006

(Adopted by the Committee of Ministers on 10 July 2013 at the 1176th meeting of the Ministers ’ Deputies)

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 the above cases and to the violation s established;

Recalling the respondent State ’ s obligation under Article 46, paragraph 1, of the Convention to abide by all final judgments in cases to which it has been a party and that this obligation entails, over and above the payment of any sums awarded by the Court, the adoption by the authorities of the respondent State, where required:

- of individual measures to put an end to violations established and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures preventing similar violations;

Having invited the government of the respondent State to inform the Committee of the measures taken to comply with the above-mentioned obligation;

Having examined the action report provided by the government indicating the measures adopted in order to give effect to the judgments including the information provided regarding the payment of the just satisfaction awarded by the Court (see document DH-DD(2013)696 );

Having satisfied itself that all the measures required by Article 46, paragraph 1, have been adopted,

DECLARES that it has exercised its functions under Article 46, paragraph 2, of the Convention in these cases and

DECIDES to close the examination thereof.

Execution of th e European Court of Human R ights judg ments

in Erturk group of cases (15259/02, and others)

Revised Action Report

A. FACTS

1. Ertürk group of cases ( Ertürk v. Turkey); Çengelli and Eryılmaz v. Turkey (287/03); Kaya v. Turkey (36150/02); and Kanbur (No. 2) v. Turkey (9984/03) concern excessive length of criminal proceedings before Martial Law Courts and ordinary courts. The Court has found a violation of Article 6 § 1 of the Convention.

2. In the case of Ertürk v. Turkey (15259/02 ) , proceedings began in November 1983 and at the time the Court issued its judgment, they had been pending more than 21 years of which 18 fell under the Court ’ s jurisdiction.

3. In the case of Kaya v. Turkey (36150/02), proceedings began in September 1980 and were still pending before the Ankara Assize Court at the time the Court gave its judgment, for some 25 years of which 18 fell under the Court ’ s jurisdiction.

4. In the case of Çengelli and Eryılmaz v. Turkey (287/03), the proceedings began on 3 March 1981 and 15 March 1981. They were still pending before the Ankara Assize Court at the time the Court issued its judgment, some 27 years of which 21 fell under the Court ’ s jurisdiction. The applicants were released pending trial respectively in 1988 and 1991.

5. The case of Kanbur No. 2 v. Turkey (9984/03) is the applicant ’ s second application before the Court. His first application was concluded by a judgment of 30 October 2001 in which the Court had found that there had been a violation of Article 6 § 1 ( A pplication No. 28291/95, lodged on 21 July 1995). By then, the proceedings had lasted for over 19 years. In the present application, the Court again found that there had been a violation of Article 6 § 1 on account of the excessive length of the proceedings which have continued for more than six years and ten months, for two levels of jurisdiction, since the Court ’ s earlier judgment. The proceedings were still pending before the Court of Cassation at the time the Court issued its judgment.

B. JUDGMENTS

6. The Court held that there had been a violation of Article 6 § 1 in all of the above mentioned cases on account of excessive length of proceedings. It awarded Hasan Ertürk , Ferit Çengelli and Süleyman Eryılmaz EUR 14,000, EUR 10,800 and EUR 19,200 respectively for non-pecuniary damage. The Court also awarded Mehmet Kaya and Yaşar Kanbur EUR 14,000 and EUR 3,000 in respect of non-pecuniary damage and EUR 2,000 and EUR 1 ,000 for costs and expenses, respectively.

C. INDIVIDUAL MEASURES

Just Satisfaction

7. The amounts awarded by the Court have been paid to the applicants in all of the above- mentioned cases and relevant documents indicating payment have been submitted to the Department for the Execution of the Court Judgments.

Criminal Proceedings against the Applicants

8. The criminal proceedings against Hasan Ertürk ended by a judgment of the Court of Cassation delivered on 17 May 2011, which upheld the final judgment rendered by the 6th Chamber of the Ankara Assize Court on 29 June 2010.

9. The criminal proceedings against Ferit Çengelli ended on 8 June 2001 by a judgment of the 4th Ankara Assize Court, due to the lapse of the statutory time limit.

10. The criminal proceedings against Süleyman Eryilmaz ended by a judgment of the 4th Ankara Assize Court delivered on 29 June 2011, due to the lapse of the statutory time limit. The judgment became final on 27 July 2011.

11. The criminal proceedings against Mehmet Kaya ended on 17 March 2010 by the Court of Cassation ’ s judgment that upheld the final judgment rendered by the Ankara Assize Court on 26 March 2009.

12. The criminal proceedings in YaÅŸar Kanbur case ended 16 May 2012 by the judgment of the Ankara Assize Court due to the lapse of the statutory time limit. The judgment became final 16 April 2013.

D. GENERAL MEASURES

13. These cases present similarities to other cases of excessive length of criminal proceedings before Martial Law Courts, such as that of Åžahiner and others against Turkey, which was closed by Resolution ResDH (2002)86 following the adoption of general measures by the Turkish authorities, in particular the abolition of these courts.

Translation and publication of the j udgments

14. The judgments have been translated into Turkish and published on the official web site of the Human Rights Department of the Ministry of Justice.

15. The judgments are available at:

http://www.inhak.adalet.gov.tr/ara/karar/erturk.pdf.

http://www.inhak.adalet.gov.tr/ara/karar/cengelliveeryilmaz.pdf

http://www.inhak.adalet.gov.tr/ara/karar/mehmetkaya2005.pdf

http://www.inhak.adalet.gov.tr/ara/karar/kanbur(no2).pdf

16. In addition, the translated version of the judgments has been circulated to the relevant courts and authorities such as the Constitutional Court, the Court of Cassation, Ministry of Internal Affairs, Ministry of Finance, the Prime Ministry.

17. Consequently , the general measures as regards the Ertürk group of cases have duly been adopted by the government and the examination of this group must also be closed by the Committee of Ministers.

Individual a pplication r ight before the Constitutional Court

18. Individual application right has been introduced into the Turkish legal system by the 2010 constitutional amendments. The Constitutional Court has been receiving individual applications since 23 September 2012. Article 148 of the Constitution stipulates that anyone who considers that their constitutional rights set forth in the European Convention on H uman Rights have been infringed by a public authority has a right to apply to the Constitutional Court after exhausting domestic remedies.

19. The Constitutional Court shall decide whether the fundamental rights of the applicant have been violated, and if so, may decide how to remedy the violation and its consequences.

20. In case the violation has been caused by a court decision, the Constitutional Court shall either remit the file to the competent court for retrial in order to restore the fundamental rights of the applicant or award compensation to the applicant or ask the applicant to file a complaint before the competent first-instance court to seek compensation for the damages suffered.

E. EXECUTION OF THE JUDGMENTS