Resolution CM/ ResDH (2010) 115 [1]

Execution of the judgment of the European Court of Human Rights

Selçuk against Turkey

(Application No. 21768/02, judgment of 10/01/2006, final on 10/04/2006)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamenta l 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 violation of the Convention found by the Court in this case concerns the excessive length of detention of a minor (violation of Article 5, paragraph 3) (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 findings of violations by the Court require, over and above the payment of just satisfaction awarded by the Court in its 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

- of 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 clos e the examination of this case.

Appendix to Resolution CM/ ResDH (2010)115

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

Selçuk against Turkey

Introductory case summary

This case concerns the excessive length of the applicant ’ s detention on remand. The applicant (aged sixteen years at the material time), who had been charged with theft, was remanded in December 2001 and released during proceedings in May 2002.

The European Court found that the domestic courts had refused to release the applicant for over four months although the applicant ’ s lawyer, relying on Article 5 of the Convention and invoking Article 37 (b) of the United Nations Convention on the Rights of the Child, had requested his release on the ground that he was a minor. The Court further concluded that court decisions invoking only stereotyped terms, such as “having regard to the nature of the offence, the state of evidence and the duration of detention” did not adequately specify the grounds for continuing the applicant ’ s detention on remand (violation of Article 5§3).

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

750 EUR

1 500 EUR

2 250 EUR

Paid on 06/10/2006

b) Individual measures

As indicated in the European Court ’ s judgment, the applicant was released pending trial in 2002. The Court awarded him just satisfaction in respect of non-pecuniary damage. Consequently, no other individual measure was considered necessary by the Committee of Ministers.

II. General measures

Law No. 5395 on the protection of minors came into force on 15/07/2005. Under the terms of its first provision, its purpose is to determine the guiding principles and the procedures relating to measures to safeguard the rights and health of minors who have committed an offence, and to the establishment of juvenile courts.

Various provisions of this law show in particular how the juvenile courts, assisted by experts specialising in psychology, are to operate for the effective protection of minors ’ rights. For instance, Article 4 of the law, after providing for the effective participation of minors and their families in the juvenile court decision-making processes (Article 4 d)) and close collaboration between minors, their family, public institutions and non ‑ governmental organisations (Article 4 f)), provides that proceedings against minors must be prompt, effective, and fair and must seek to foster the rights of the minors against whom proceedings are brought before the juvenile courts.

Specifically, measures restricting freedom including prison sentences must be applied as a last resort to minors (Article 4 i )). Instead of measures restricting freedom, the law provides measures not involving detention, such as confinement to certain designated places or prohibition of contact with certain persons (Article 20(1)). The reaching of a decision to hold a minor in detention on remand is moreover subject to strict conditions that must be observed by the judges who in turn receive special training in child rights and psychology (Article 28(1) and Article 32). Thus a remand decision can only be taken if it is proved that no result can be achieved through alternative measures or if the minors do not comply with these measures. Nor may a measure of detention be applied where minors are less than 15 years of age unless the offence with which they are charged is punishable by a prison sentence of over 5 years (Article 21). It is pointed out that where a decision to order detention is taken in respect of a minor, he or she must be held in units for minors, separately from adults (Article 4 k)).

As regards the inadequacy of the grounds justifying the continuation of detention on remand for minors (violation of Article 5§3) found by the Court in this case, the Turkish authorities consider that the general organisation of the law on protection of minors, particularly the predominance of protective measures over custodial measures such as detention on remand, together with juvenile court judges ’ special training in the psychology of minors and the fact that these courts are assisted by experts including psychologists, will prompt judges to give a detailed statement of grounds for the need to place and to keep minors in detention on remand.

Lastly, the judgment of the European Court has been published and circulated to the authorities concerned. The Turkish translation of the judgment is available on the websites of the Ministry of Justice and the Court of Cassation.

III. Conclusions of the respondent state

The government considers that no individual measure is required in this case, apart from the payment of the just satisfaction, that the general measures adopted 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 15 September 2010 at the 1092nd meeting of the Ministers’ Deputies