Resolution CM/ ResDH (2010)212 [1]

Execution of the judgment of the European Court of Human Rights

Yılmaz and Kılıç against Turkey

(Application No. 68514/01, judgment of 17/07/2008, final on 17/10/2008)

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 judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violations of the Convention found by the Court in this case concern interference with the applicants ’ right to freedom of expression (violation of Article 10) and the lack of independence and impartiality of the state security court on account of the presence of a military judge (violation of Article 6 §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 judgment;

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 the just satisfaction provided in the judgment (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 this case and

DECIDES to close the examination of this case.

Appendix to Resolution CM/ ResDH (2010)212

Information about the measures to comply with the judgment in the case of

Yılmaz and Kılıç against Turkey

Introductory case summary

The case concerns unjustified interference with the applicants ’ freedom of expression on account of their conviction for having participated in a demonstration in 1998 to protest against the arrest of Abdullah Öcalan and for having spread propaganda for a terrorist organisation.

The applicants were sentenced to three years and nine months ’ and three years and sixteen months ’ imprisonment by the İzmir State Security Court under Article 169 of the old Criminal Code and abrogated Article 8 of the Anti-terrorism Law.

The European Court found that it has not been established that the applicants had been implicated in the demonstrations in question and had chanted slogans themselves (violation of Article 10).

The case also concerns the lack of independence and impartiality of the Ä°zmir State Security Court on account of the presence of a military judge (violation of Article 6).

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

5000 EUR

-

5000 EUR

Paid on 09/01/2009

b) Individual measures

In the context of the cases concerning freedom of expression (see also CM/ Inf (2003)43 and Interim Resolution ResDH (2004)38) the Turkish authorities have indicated that measures had been taken to ensure the erasure of convictions and of all their consequences, ex officio in cases concerning convictions under Article 8 of the Anti-terrorism Law No. 3713, following the abrogation of this provision on 19/07/2003 (by Law No. 4928), which also provided that any information on criminal records should automatically be erased (in conformity with Article 8 of the former Law on Criminal Records, as amended by Law No. 4778 of 2/01/2003), thereby also lifting any restrictions on applicants ’ civil and political rights. As to Article 12 of the new Law on Criminal Records, No. 5352, which entered into force on 1/06/2005, any information on criminal records concerning an act which no longer constitutes a crime should automatically be erased. The new Criminal Code, which came into force in June 2005, contains no provision similar to Article 169 of the former Code. Consequently, no other individual measure was considered necessary by the Committee of Ministers.

II. General measures

Violation of Article 10: Law No: 4963 adopted on 30/07/2003 and published in the Official Gazette of 7/08/2003 partially amended Article 169 of the Criminal Code by providing for the deletion of the phrase “facilitating the activities of [a gang or an armed organisation]”. The new Criminal Code which came into force in June 2005 contains no similar provision either (See Resolution CM/ ResDH (2009)17, Emir (10054/03)).

In addition, Article 8 of the Anti-terrorism Law was abrogated on 19/07/2003 by Law No. 4928, in the framework of an extensive programme of reforms aimed at bringing Turkish law into 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).

The judgment of the European Court was translated and sent out to judicial authorities.

Violations of Article 6: Measures have already been taken to prevent new violations of this kind, notably through the amendment of Article 143 of the Turkish Constitution which concerns the composition of state security courts (Law No. 4388, adopted on 18 June 1999), and the entry into force, on 22 June 1999, of Law No. 4390, which provides that the functions of the military judges and military prosecutors end at this date (see Resolution DH (99) 555 in the case of Çiraklar against Turkey ). Furthermore, on 07/05/2004, the P arliament approved a constitutional amendment abolishing state security courts.

III. Conclusions of the respondent state

The government 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 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 2 December 2010 at the 1100th meeting of the Ministers’ Deputies