Resolution CM/ ResDH (2012)223 [1] ErkuÅŸ against Turkey

Execution of the judgment of the European Court of Human Rights

(Application No. 30326/03, judgment of 29/09/2009, final on 29/12/2009)

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 judgment transmitted by the Court to the Committee in the above case and to the violation established (see document DH-DD(2012)896E );

Recalling that the respondent State ’ s obligation under Article 46, paragraph 1, of the Convention to abide to 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 awa rded 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 its above-mentioned obligation;

Having examined the action report provided by the government indicating the measures adopted in order to give effect to the judgment including the information provided regarding the payment of the just satisfaction awarded by the Court (see document DH-DD(2012)896E );

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

DECLARES that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination thereof.

Execution of Judgments of the European Court of Human Rights

ErkuÅŸ v Turkey (30326/03)

Action Report submitted by the Turkey on 18 August 2011

The applicant, who was a conscript at the time of the events, was deprived of his liberty unlawfuly for a period of 17 days before being brought before a judge after his arrest on suspicion of being an army deserter (Violation of Art.5§1).

B . Individual measures:

The just satisfaction award has been paid.

Since the applicant is no longer detained, no other individual measure has been required.

C. General measures:

This case has been translated into Turkish and published on the official intranet (TSK-NET) of the Ministry of Defence. On 07.01.2010, in an official letter, the said ministry informed all the military tribunals and prosecutors of the publication of the present case on TSK-NET.

This case has been disseminated to the relevant authorities, namely, the Constitutional Court , the Court of Cassation, the Prosecutor of the Court of Cassation, the Ministry of Interior, the Ministry of Finance, the Ministry of Justice, the Military Court of Cassation and the Administrative Military High Court.

The detention of the applicant for a total of 17 days before bringing him before a judge was not based on any of the legislative provisions in force at the time in question. According to the provisions, at the material time, the period of custody could not exceed 48 hours. Therefore, the violation found in the present case reveals, in fact, that it was an isolated incident resulting from an erroneous administrative act.

In addition, section 80 § 3 of the Law on the Constitution of Military Courts and Criminal Procedure was amended by Law no. 5530 of 29 June 2006, which provided that the time in custody shall not exceed twenty-four hours, excluding the time necessary to transfer the detainee to the nearest military court, and that the time necessary for transfer could not be more than twelve hours. Through this amendment the legislation in question has now come into conformity with the European Convention on Human Rights and with the case-law of the Court.

The government considers that taking into account the new legislation and dissemination of the case-law, the measures adopted will prevent similar violations and Turkey has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

[1] Adopted by the Committee of Ministers on 6 December 2012 at the 11 57 th Meeting of the Ministers’ Deputies .