Resolution CM/ ResDH (2011)304 [1]

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

5 cases against Turkey concerning freedom of expression (convictions under former Article 8 of Anti-terrorism Law)

(See Appendix for details of the 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 violations of the Convention found by the Court in these cases concern in particular unjustified interference with the applicants ’ freedom of expression on account of their conviction under former Article 8 of Anti-terrorism Law (No. 3713) , and the breach of the ir right to a fair trial due to the failure to communicate to them the prosecutor ’ s opinion before the Court of Cassation (violations of Article 10 and Article 6, paragraph 1) (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 plicants 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;

Recalling that in its Interim Resolution ResDH (2004)38 of 2 June 2004 , the Committee of Ministers decided that its examination of those cases of freedom of expression concerning convictions under former Article 8 of Anti-terrorism Law would be closed upon confirmation that the necessary individual measures had been taken , and that, accordingly, in its Final Resolution ResDH (2006)79 it decided to close the examination of 32 similar cases ;

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 (20 11 ) 304

Information about the measures to comply with the judgments in 5 cases against Turkey concerning freedom of expression ( convictions under former Article 8 of Anti-terrorism Law)

Introductory case summary

These cases concern unjustified interferences with the applicants ’ freedom of expression, in that they were convicted by state security courts under former Article 8 of Anti-Terrorism Law, following the publication of articles, or sending a petition to the Minister of Justice (only in Tapkan and others case) or a message addressed to a public audience (only in Abdullah Aydın case) (violations of Article 10).

The cases also concern the breach of the applicants ’ right to a fair trial due to the failure to communicate to the applicants the written opinion submitted by the Principal Public Prosecutor to the Court of Cassation on the merits (violations of Article 6§1).

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Case and Application

Judgment of

Final on

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

Erdal TaÅŸ (77650/01)

19/12/2006

19/03/2007

--

2 000 EUR

1 000 EUR

3 000 EUR

Paid on 19/06/2007

Deniz (71355/01)

27/06/2006

27/09/2006

No just satisfaction awarded

Baskaya (68234/01)

03/10/2006

03/01/2007

735 EUR

7 000 EUR

1 000 EUR

8 735 EUR

Paid on 29/03/2007

Tapkan and others (66400/01)

20/09/2007

20/12/2007

--

1 000 EUR

1 000 EUR

2 000 EUR

Paid on 17/03/2008

Abdullah Aydın (2) (63739/00)

10/11/2005

10/02/2006

--

5 000 EUR

4 000 EUR

9 000 EUR

Paid on 09/05/2006

b) Individual measures

The measures to erase the consequences of the violations for the applicants had already been taken (See Final Resolution ResDH (2006)79 ).

II. General measures

1) Violations of Article 10 relating to convictions under former Article 8 of Law No. 3713

The provision at the origin of the applicants ’ convictions in all these cases was abrogated on 19 July 2003 by Law No. 4928, in the framework of an extensive programme of reforms aimed at bringing Turkish law in to conformity with the Convention ’ s requirements concerning freedom of expression (see Final Resolution ResDH (2006)79 , and CM/ Inf /DH(2008)26 for a more comprehensive overview of the general measures adopted or still under way as regards all relevant provisions on freedom of expression).

2) Violations of Article 6 relating to the non-communication of the Public Prosecutor ’ s opinion:

A new provision was added by Law No. 4778 of January 2003 to Article 316 of the Code of Criminal Procedure requiring notification of written opinions of the Principal Public Prosecutor to parties by the competent chamber of the Court of Cassation. This provision was subsequently included in Article 297 of the new Code of Criminal Procedure which was adopted on 17 December 2004 and entered into force on 1 June 2005.

III. Conclusions of the respondent state

The g overnment considers that the measures adopted have fully remedied the consequences for the applicants of the violations of the Convention found by the European Court in these cases, 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 by tacit procedure in accordance with the decision taken at the 1128 th meeting (December 2011) under item F.