Resolution CM/ ResDH (2010)12 [1]

Execution of the judgment of the European Court of Human Rights

Adal ı against Turkey

(Application No. 38187/97, judgment of 31 March 2005, final on 12 October 2005)

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 in this case, 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 the lack of an effective investigation into the death of the applicant ’ s husband (violations of articles 2 and 13) and a refusal by the authorities to grant the applicant permission to cross from northern Cyprus into southern Cyprus, to attend a bi-communal meeting (violation of article 11) (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, within the time-limit set, 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 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 close the examination of this case.

Appendix to Resolution CM/ ResDH (2010)12

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

Adal ı against Turkey

Introductory case summary

The case concerns the lack of an effective investigation into the death of the applicant ’ s husband, who was shot in front of his house situated in the northern part of Cyprus on 06/07/96 by unknown persons (violation of Article 2 and 13).

The European Court found the following shortcomings in the investigation:

- the negligence of the investigating authorities in that they failed to take fingerprints on the terrace and inside the applicant ’ s home, the absence of real co-ordination among themselves and the failure to preserve the scene of the crime ;

- the insufficient ballistic examination, in particular the failure to compare the cartridges found with those classified in the police archives in Turkey ;

- the failure of the investigating authorities to take statements from some key witnesses (although additional witness statements were taken in 2002, after the application in this case had been communicated to the government);

- the failure of the authorities to inquire sufficiently into the motives behind the killing of the applicant ’ s husband, and

- the lack of public scrutiny of the investigation as a result of no information being provided to the deceased ’ s family, in particular the lack of transmission of the autopsy and ballistics reports.

The case also concerns an interference with the applicant ’ s freedom of association on account of a refusal of permission to cross from the northern part to the southern part of Cyprus to attend a bi-communal meeting on 20/06/1997 (violation of Article 11).

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

20,000 euros

67,763.26 euros

87,763.26 euros

Paid on 30/12/2005

b) Individual measures

An additional inquiry into the death of Mr Adalı was carried out, following a letter of 24/03/2006 by the Prosecutor General to the police authorities ordering them to initiate a further investigation, taking into account the shortcomings identified by the European Court in its judgment. All elements pointed out by the European Court as deficient in the initial investigation which led to the violation, were considered and re-examined in the new inquiry. The collecting of new fingerprints proved to be objectively impossible, given the long period of time which elapsed since the events, the environmental changes affecting the location and the fact that external persons had subsequently been at the scene of the crime. During the initial investigation, the scope of the ballistic tests was broadened to cover the archives of the police in Turkey , but to no avail. The corresponding report could not be found subsequently. The victim ’ s mobile telephone was sought but not found. As regards the investigation of the motives behind the killing of the applicant ’ s husband, the competent authorities have examined all allegations advanced without obtaining conclusive results. The documents and results of all investigations carried out in connection with this case have been submitted to the Prosecutor General. The applicant never requested either the autopsy or the ballistic reports. It should be noted that two of the key witnesses not questioned at the time of the facts - Mr Ceylan and Mr Demirci - have been heard during the additional investigation opened in 2002 (under No CTKC/440/1996). A third important witness - Mr Mendi - was heard by the European Court (§§163-174 of the judgment).

Having carried out the additional investigative acts considered necessary by the European Court , the authorities concluded that it had not been possible to obtain new documents, information or testimonies on the basis of which criminal charges could be brought against any person. On the other hand, the Turkish authorities have underlined that as no period of limitation applies to proceedings in this case, the emergence any new element may give rise at any moment to an appropriate follow-up.

On 12/03/2009 the Turkish authorities wrote to the applicant informing her of the new inquiry carried out following the European Court ’ s judgment. The letter states that given the amount of time which has elapsed, the authorities were unable to obtain any further evidence that would permit criminal charges to be brought. The applicant did not react to this letter.

II. General measures

1) Violations of Article 2 and 13 :

The Turkish authorities have stressed that the shortcomings in the investigation found by the Court emanated from practice and not from legislation in place. The authorities provided in support of this statement a copy of the “Coroners Law” and of the ”Law on Criminal Procedures” of the “TRNC”. They indicated in particular that investigations of deaths are conducted ex officio by investigating magistrates and under their exclusive control. As regards the involvement of victims ’ families into the investigations carried out, Article 14 of the “Coroners Law” states that “every interested party m ay appear either by advocate or in person and examine, cross-examine or re-examine, as the case may be, any witness". In addition, Article 29 of the “Act on the Law Office” was amended on 13/03/2006 to the effect that the Attorney General, if he finds it necessary, may supervise or direct investigations carried out by the General Directorate of the Police Forces and may give orders in this respect. Consequently, the role of the Attorney General in police investigations has been enhanced. The judgment of the European Court has been translated into Turkish, posted on the “TRNC” courts ’ website (http://www.mahkemeler.net/cgi-bin/aihm.aspx) and disseminated to all jurisdictions via the channels of the Prosecutor General ’ s Office on 13/05/2008. In addition, an article entitled The Ilkay Adalı Case and Aspects of the Right to Life has been published in the Lefkoşa Bar Journal, No. 13 (April 2005), in order to raise awareness of the requirements of the Convention as regards effective investigations of the authorities entrusted with applying the law.

2) Violation of Article 11:

The necessary measures have been taken in the framework of the case of Djavit An against Turkey (Final Resolution CM/ ResDH (2008)59). The “Council of Ministers of the TRNC” adopted several decisions following the judgment of the European Court in that case, in order to provide a legal basis regulating the crossing from the northern part to the southern part.

Under the terms of decision No. E-762-2003 the crossing from the north to the south is carried out after presentation of an identity card or a passport and the computerised recording of the passage of persons and vehicles. Each person may carry personal effects. Moreover, the provisions requiring passage on a day-trip basis with the return before midnight were repealed by a decision of the “Council of Ministers of the TRNC” No. T ‑ 820 ‑ 2004.

III. Conclusions of the respondent state

The government considers that the measures adopted have remedied in so far as they could the consequences for the applicant 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 4 March 2010 at the 1078 th meeting of the Ministers’ Deputies .