Resolution CM/ ResDH(2007)1 [1]

Execution of the judgment of the European Court of Human Rights Öcalan against Turkey

(Application No. 46221/99, Grand Chamber judgment of 12 May 2005, final on 12 May 2005)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the P rotection 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 referred to as “the Convention” and “the Court”);

Having regard to the final Grand Chamber judgment in this case, transmitted by the Court to the Committee on 12 May 2005;

Recalling that the violations of the Convention found by the Court in this case concern several shortcomings in the criminal proceedings against the applicant, a Turkish national charged with terrorist offences and sentenced to death by the Ankara State Security Court in June 1999 (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the mea s ures taken in order to comply with Turkey ’s obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgment;

Having examined the information and observations submitted by the Government and by the applicant under the Committee’s Rules for the supervision of the execution of judgments and of the terms of friendly settlements (see details in the Appendix);

Having satisfied itself that the respondent state paid the a p plicant the just satisfaction provided in the judgment;

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgment, 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 this case the question of individual measures was addressed already in the European Court’s judgment which underlined that “in cases where an individual had been convicted by a court which did not meet the Convention requirements of independence and impartiality a retrial or a reopening of the case, if requested, represents in principle an appropriate way of redressing the violation. However, the specific remedial measures, if any, required of a respondent State in order to discharge its obligations under Article 46 had to depend on the particular circumstances of the individual case and be determined in the light of the terms of the Court’s judgment in that case, and with due regard to the […] case-law of the Court” (see §210 of the Grand Chamber judgment in this case);

Recalling further the constant practice of the Committee of Ministers and of contracting states in the execution of judgments by the Court, as restated e.g. in the Committee’s Recommendation Rec(2000)2 on the re-examination or reopening of certain cases at domestic level following judgments of the European Court of Human Rights and in the explanatory memorandum thereto and in many resolutions adopted in the course of the Committee’s execution supervision;

Considering in particular that an initial judicial examination of the need for a re-trial in order to remedy the violations established may be necessary in order to take into account the particular circumstances of each case, and that such an initial examination does not have to meet all the requirements of Article 6 of the Convention;

Considering furthermore:

- that the applicant requested the reopening of the domestic proceedings impugned by the Court;

- that the competent Turkish court examined the merits of the request, and thus refused, in the light of Article 90 of the Constitution and Turkey ’s obligations under Article 46 of the Convention, to apply the temporal limitations contained in Article 311/2 of the Turkish Code of Criminal P rocedure to this case;

- that the competent court concluded, when assessing whether or not a full re-trial was required to remedy the violations established by the Court, that this was not the case as neither the new submissions made on behalf of  the applicant by his lawyers nor a full re-examination of the case file cast any serious doubts on the reliability of the impugned conviction;

Considering also that the applicant’s death sentence has been commuted to life imprisonment;

Having examined the observations submitted by the applicant and the government with regard to the above- mentioned proceedings;

Concluding that the re-examination procedure above is in conformity with Turkey ’s obligations under Article 46 as far as individual measures are concerned;

Taking note, in this context, of the information provided by the applicant’s lawyers that they have lodged an application with the European Court concerning the above-mentioned domestic proceedings for a re-examination of the applicant’s case, but recalling that the Committee of Ministers’ decision under Article 46, paragraph 2, in no way prejudges the Court’s examination of the new complaints;

Considering as regards the general measures which the respondent state has been called to adopt without delay to prevent new, similar violations of the Conventions, that such measures were adopted as described in part II of the Appendix to this resolution;

DECLARES that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in this case and DECIDES to close its examination.

Appendix to Resolution CM/ ResDH(2007)1

Information and observations about the measures to comply with the judgment in the case of Öcalan against Turkey

Case summary

The case concerns several shortcomings in the criminal proceedings against the applicant, a Turkish national charged with terrorist offences and sentenced to death by the Ankara State Security Court in June 1999. The judgment was in every respect upheld by the Court of Cassation in November 1999. Following the legislative reform abolishing the death penalty in peacetime, the State Security Court in October 2002 commuted the applicant’s death sentence to life imprisonment.

With regard to the applicant’s pre-trial detention , the European Court found that he was not brought promptly before a judge following his arrest in February 1999, as he had spent a minimum of seven days in police custody beforehand (violation of Article 5§3) and that there was no effective remedy by which he could have had the lawfulness of his continued detention in police custody decided promptly by a court (violation of Article 5§4). In this context the European Court observed that under the circumstances of the case (the applicant being kept in total isolation, possessing no legal knowledge and accused of serious charges), Article 128 § 4 of the Turkish Code of Criminal P rocedure as amended in November 1992 (which entitled suspects to apply for habeas corpus to the district judge), could not be regarded as an effective remedy since the applicant had not been able to make use of it (violation of Article 6§1).

Concerning the trial, the European Court found a lack of independence and impartiality of the State Security Court in view of the presence of a military judge (replaced in June 1999) during part of the proceedings (violation of Article 6§1).

Furthermore, the European Court held that the trial had been unfair (violation of Article 6§1 together with Article 6§3(b) and (c)) due to:

- the inadequate time and facilities for preparation of the defence;

- the restrictions on legal assistance, the applicant having been denied access to a lawyer while in police custody;

- the fact that he could not consult his lawyers out of the hearing third parties;

- the fact that he was restricted to two one-hour visits with his lawyers per week;

- the fact that he did not have access to the case file of 17,000 pages until two weeks before trial.

Finally, the European Court held that to sentence to death a person who had not had a fair trial amounted to inhuman treatment (Article 3).

I. P ayment of just satisfaction and individual measures

a) Details of just satisfaction

Costs and expenses

Total

P aid on

120 000 €

120 000 €

19/08/2005

P lus 138 € default interest

b) Individual measures – the question of retrial

- The applicant’s request for a retrial

A formal request for a retrial was lodged on 2 February 2006.

On 5 May 2006, the Ankara 11th Assize Court rejected the request, relying on Article 311/2 of the Turkish Code of Criminal P rocedure (CC P ), which excludes the possibility of retrial on the basis of European Court judgments rendered during the period when the present judgment was rendered.

The applicant filed an objection to this decision on 29 May 2006 and the case was referred to the Istanbul 14th Assize Court (in accordance with Article 268 CC P ). Final judgment was rendered on 21 July 2006. The 14th Assize Court did not find the reliance at first instance on Article 311/2 CC P a sufficient ground for rejecting the request. Stressing the binding nature of the European Court ’s judgment and Turkey ’s international obligations under the European Convention on Human Rights, as enshrined in Article 46 of the Convention and acknowledged in the new Article 90 of the Turkish Constitution, the court decided to examine the merits of the applicant’s request. The court considered the arguments put forward by the applicant’s lawyers in their submissions to it and the contents of the case file as a whole and reached the conclusion that it was not necessary to carry out any additional investigations or further hearings. Having considered the nature of the crime and the evidence in the case file (including the applicant’s confessions) and having concluded that the violations established by the European Court could not change the applicant’s conviction and that his submissions before it were unsubstantiated, the 14th Assize Court dismissed the request as devoid of merit.

- The applicant’s position regarding the execution of the European Court’s judgment in the light of the rejection of his request for a retrial

In their submissions dated 30 September 2005, 22 February 2006, 10 April 2006, 2 October 2006 and 29 January 2007, the applicant’s lawyers in particular asked for:

a) the judgment of the European Court to be executed;

b) the provision excluding a request for a retrial for applicants falling into a certain time period - Article 311/2 of Act no. 5271- to be removed;

c) the legal provisions of Article 151 of Act No. 5271 and Article 59 of Act No. 5275 which restrict defence rights to be removed;

d) the non-acceptance as individual measure of the decision taken on their request for a retrial as in particular it::

- did not respect the requirements of the Court’s judgment in the case;

- was beyond the authority and jurisdiction of the court in question;

- was not adopted after proceedings respecting the applicant’s defence rights so that once again the applicant was unable to present the arguments which he had been denied, in violation of the Convention, to present at the original impugned trial;

- had not been independent;

e) an end to any special prison conditions for their client.

The government’s position on the above issues is ref lected below under Section III.

II. General measures

1) Failure to bring the applicant promptly before a judge after his arrest (Article 5§3): legislative reform commenced in 2001, see case of Sakık and others against Turkey (Final Resolution DH (2002)110). Article 91 of the Turkish Code of Criminal P rocedure, in force since 01/06/2005, today provides for a right of detainees to see a judge within 24 hours in regular cases and 3 days in exceptional cases, the decision to extend to be taken by the prosecutor and open to an appeal to the court.

5) Imposition of the death penalty following an unfair trial , amounting to inhuman treatment (Article 3), Law No. 4771 of 09 August 2002 abolished the death penalty in peacetime.

At the 940th meeting, the Turkish authorities informed the Committee of Ministers that the judgment of the European Court had been translated and published on the web site of the Ministry of Justice and that it will also be published in the Bulletin of the Ministry of Justice.

III. The government’s position

The government considered that the above measures have provided adequate individual redress to the applicant and stressed more particularly in its observations of 4 February 2007:

- that the domestic court had refused to apply the temporal limitations in Article 311/2 and had examined the need of a re-trial on the basis of a full re-examination of the case file in the light of the applicant’s new submissions before it;

- that the domestic court had acted within its competence;

- that the proceedings had respected the rights of the defence;

- that the domestic court had acted in full independence.

Moreover, the government considered that the applicant’s complaints regarding his present prison conditions were unrelated to the execution of the present judgment.

The government also considered that the general measures adopted would prevent new similar violations of the Convention. The government in particular underlined the importance of the direct effect given to the Convention and the Court’s case law under the new Article 90 of the Turkish Constitution. The government expressed its conviction that this direct effect would ensure that the new legislation will continuously be applied in conformity with the Convention’s requirements.

[1] Adopted by the Committee of Ministers on 14 February 2007 at the 987th meeting of the Ministers’ Deputies