Resolution CM/ ResDH (2011)311 [1]

Execution of the judgment s of the European Court of Human Rights

Jabari and D. and others against Turkey

( See appendix for details of cases)

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 judgments transmitted by the Court to the Committee once they had become final;

Recalling that the violation s of the Convention found by the Court in these cases mainly concern the fact that there was a real risk of the applicants being subjected to treatment contrary to Article 3 if they were to be returned to Iran (violations of Article 3 ) and lack of an effective remedy in this regard (case of Jabari , violation of Article 13) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the mea s ures taken to comply with its obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgments;

Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that the respondent state paid the a p plicant s the just satisfaction provided in the judgments (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgments, the adoption by the respondent state, where appropriate, of

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

- general measures preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix) that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in these cases and

DECIDES to close the examination of these cases.

Appendix to Resolution CM/ ResDH (2011)311

Information on the measures taken to comply with the judgments in the cases of Jabari and D. and others against Turkey

Introductory case summary

These cases concern potential violations of Article 3 due to the fact that the applicants ’ asylum requests were refused by the authorities solely on the grounds that applicants have failed to comply with procedural requirements under the Asylum Regulation. Their requests were rejected without a consideration made as to whether there was a real risk of the applicants being subjected to treatment contrary to Article 3 if they were to be returned to Iran (violation of Article 3).

The Jabari case also concerns the absence of an effective remedy because the competent administrative court failed to scrutinize rigorously the claim that there existed substantial grounds for fearing that there was a risk of ill-treatment in the country of destination. The administrative court also failed to consider the possibility of suspending the implementation of the expulsion measure (violation of Article 13).

a) Details of just satisfaction

Case and application

Judgment of

Final on

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

Jabari 40035/98

11/7/2000

11/10/2000

No just satisfaction awarded

D. and others 24245/03

22/06/06

23/10/06

--

--

EUR 4143

EUR 4143

Paid on 23/01//2007

b) Individual measures

In the Jabari case, the applicant was granted a residence permit in Turkey following the judgment of the European Court . She obtained a Canadian visa and left Turkey on 25 September 2001 with the aim of settling in Canada .

In the D. and others case, the applicants were granted “refugee status” in Turkey . Afterwards, they obtained from the Canadian authorities a renewable residence permit, and left Turkey on 12/11/2008 with the permission of the Ministry of the Interior.

Consequently, no other individual measure was considered necessary by the Committee of Ministers.

II. General measures

The judgments of the European Court were translated and published in the Judiciary Legislation Bulletin of the Ministry of Justice.

The deadline for requesting political asylum was increased from five to ten days following the amendments introduced in Regulations on political asylum seekers in 1999. The ten day deadline starts from the day when a political asylum seeker enters into Turkey through legal or illegal ways. The Turkish authorities provided a number of examples of the Council of State decisions in this respect. It appears from these examples that aliens are not automatically expelled following the expiry of the 10 day deadline. It also appears from the examples provided that courts interpret Turkish law in compliance with Turkey ’ s international commitments. Furthermore, the competent authorities are under an obligation to carry out an assessment as to whether a person is under the threat of ill ‑ treatment or torture if expelled to his or her country of origin.

Other issues concerning the right to an effective remedy in this matter are being examined in the context of other judgments of the European Court pending before the Committee of Ministers.

III. Conclusions of the respondent state

The government considers that the measures adopted have fully remedied the consequences for the applicants of the violation of the Convention found by the European Court in these cases, that these measures will prevent similar violations and that Turkey have thus complied with their obligations under Article 46, paragraph 1, of the Convention.

[1] Adopted by the Committee of Ministers by tacit procedure in accordance with the decision taken at the 1128 th meeting (December 2011) under item F.