Resolution CM/ ResDH (2012) 225 [1] Tavlı against Turkey

Execution of the judgment of the European Court of Human Rights

(Application No. 11449/02, judgment of 09/11/2006, final on 09/02/2007)

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)89 4 E );

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 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 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)89 4 E );

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

Kazım Tavlı v Turkey (11449/02)

Action Report submitted by the Turkey on 10 October 2011

A. Case Description

The case concerns the violation of right to respect for private and family life due to the impossibility for the applicant to prevail himself, before the national courts in 1997, of DNA tests proving that he was not the father of his former wife ’ s child. His paternity had been established by legal presumption in 1982, when DNA tests were not available. Nevertheless, the national courts rejected the applicant ’ s request, maintaining that scientific progress could not be considered as “force majeure” justifying a retrial (violation of Art. 8).

B. Individual measures:

1. Just satisfaction:

The just satisfaction award has been paid.

2. Other individual measures:

Taking into account the Court ’ s judgment of 9 November 2006, the Aksaray Family Court considered the progress in genetic and chemical analysis as a reason for retrial and on 2 October 2007 rendered a new judgement in favour of the applicant. In this judgement , the Aksaray Family Court made refence to Art. 445 of Code on Civil Procedure which envisage the retrial of a case upon a ECHR judgement and decided to accept the request for retrial according to this provision. In its justification, Aksaray Court, in line with ECHR ’ s judgment, considered the progress in genetic and chemical analysis as a reason for retrial and quas hed her previous decision dated 01/6/1982 and ruled for the denial of the paternity as requested by the applicant, relying on the DNA analysis report prepared by Ankara Forensic Medicine Institution on 19/08/1998.

On 23 July 2009 the Court of Cassation upheld the judgment, thus the applicant was able to get a judgement ruling denial of paternity. Accordingly, consequences of the violation has been remedied . No other individual measure is necessary.

C. General measures:

1. Publication:

This case has been translated into Turkish and published on the official web site of the Ministry of Justice. It is accessible in Turkish, for free, on http://www.inhak-bb.adalet.gov.tr/.

2. Dissemination:

This case has been disseminated to the relevant authorities, namely, the Human Rights Inquiry Committee of the Turkish Grand National Assembly, the Human Rights Presidency of the Prime Ministry of Republic of Turkey, the Constitutional Court, the Court of Cassation, the Chief Public Prosecutor of the Court of Cassation, the Ministry of Interior, the Ministry of Finance, the Ministry of Justice and the Directorate General of Security.

Since the case is of isolated nature, no other general measure has been required.

The government considers that the measures adopted have fully remedied the consequences for the applicant of the violation of the Convention found by the European Court in this case, that these measures will prevent similar violations and that 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 .