Resolution CM/ ResDH (2009)98 [1]

Execution of the judgments of the European Court of Human Rights

delivered between 20/10/2005 and 31/07/2007 in

5 cases against Turkey concerning freedom of expression following convictions under former Article 8 of Anti-terrorism Law (No. 3713)

(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 due to their conviction under former Article 8 of Anti-terrorism Law (No. 3713), and/or seizure of the publications (violation of Article 10) (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 02/06/2004 the Committee of Ministers decided that its examination of those cases involving the applicants convicted on the basis of 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 (2009)98

Information about the measures to comply with the judgments delivered between 27/05/2004 and 31/10/2007 in 5 cases against Turkey concerning freedom of expression following convictions under former Article 8 of

Anti-terrorism Law (No. 3713)

Introductory case summary

These cases relate to unjustified interference with the applicants ’ freedom of expression, due to their conviction by state security courts, under former Article 8 of Anti-Terrorism Law, following the publication of articles and books or the preparation of messages addressed to a public audience (violations of Article 10).

Cases Nos. 49564/99, 55391/00 and 52709/99 also concern violations of the applicants ’ right to be tried by an independent and impartial court, on account of the presence of a military judge in the state security court, which convicted them (violations of Article 6§1).

Case No. 55391/00 furthermore concerns the excessive length of criminal proceedings before a state security court (violation of Article 6§1).

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Name and application number

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

Karakoç Refik 53919/00

-

EUR 2000

EUR 500

EUR 2500

Paid on 06/07/2006

Keskin Emire Eren 49564/99

-

EUR 7500

EUR 3000

EUR 10500

Paid on 17/05/2006

Okçuoğlu Mehmet 48098/99

No just satisfaction awarded.

Özçelik Osman and others 55391/00

EUR 572

EUR 27500

EUR 3000

EUR 31072

Paid on 18/04/2006

Ulusoy 52709/99

No just satisfaction awarded.

b) Individual measures

Measures were taken to erase the consequences of the violations for the applicants (see Final Resolution ResDH (2006)79).

II. General measures

Violations of Article 10 relating to convictions under former Article 8 of Anti-terrorism Law (No.3713)

The provision at the origin of the applicants ’ convictions in all these cases was repeated on 19/07/2003 by Law No. 4928, in the framework of an extensive programme of reforms to bring 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).

Violations of Article 6 relating to the independence and impartiality of State Security Courts

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.

Violation of Article 6 relating to the excessive length of criminal proceedings before state security courts

On 07/05/2004, the P arliament approved a constitutional amendment abolishing state security courts (see Final Resolution ResDH (2006)79).

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 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 on 30 September 2009 at the 1065 th meeting of the Ministers’ Deputies