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Resolution ResDH(2006)79 [1]

Execution of the judgments of the European Court of Human Rights delivered between 8/07/1999 and 27/09/2005 in 32 cases against Turkey concerning freedom of expression following convictions under former Article 8 of the Law against Terrorism No. 3713

(see Appendix for details of the cases)

The Committee of Ministers, under the terms of Article 46 § 2, of the Convention for the P rotection of Human Rights and Fundamental Freedoms, which sets forth the Committee’s duty to supervise 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 judgments in the cases detailed in the Appendix, delivered between 8 July 1999 and 27 September 2005 and transmitted by the Court to the Committee once they had become final, between 8 July 1999 and 27 December 2005, under Articles 44 and 46 of the Convention;

Recalling that the violations of the Convention found by the Court in these cases all concern notably disproportionate interferences with the applicants’ freedom of expression on account of their conviction, between 1991 and 1999, under former Article 8 of the Law against Terrorism No. 3713 (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 § 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 § 2 of the Convention;

Having satisfied itself that the respondent state had paid the a p plicants the just satisfaction provided for in the judgments, including default interest, where applicable (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 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 new, similar violations;

Having examined the measures taken by the respondent state to that effect, the details of which appear in Appendix;

Recalling that in its Interim Resolution (2004)38 of 2/06/2004 the Committee of Ministers decided that its examination of those cases involving applicants convicted on the basis of former Article 8 of the Anti-terrorism Law would be closed upon confirmation that the necessary individual measures had been taken;

Noting, however, with concern the time required to provide redress to the individual applicants and emphasising the need to accelerate for the future the procedures allowing such redress;

DECLARES that it has exe r cised its functions under Article 46 § 2, of the Convention in these cases and DECIDES to close their examination.

Appendix to Resolution ResDH(2006)79

Information about the measures to comply with the judgments

delivered between 8/07/1999 and 27/12/2005

in 32 cases against Turkey concerning freedom of expression

following convictions under former Article 8 of the Law against Terrorism No. 3713

Introductory cases summary

These cases all relate to unjustified interferences with the applicants' freedom of expression, on account of their conviction by State Security Courts, between 1991 and 1999, 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).

Most cases (with the exception of cases Nos. 23462/94, 23500/94, 25067/94, 28493/95, 28635/95, 36215/97 and 37096/97 – in bold in the table below) 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 who convicted them (violations of Article 6§1).

The case No. 53916 furthermore concerns the excessive length of the criminal proceedings before the State security court (violation of Article 6§1).

The cases Nos. 23536/94 and 28496/95 also concern the applicants’ convictions to heavier sentences than those prescribed by law (violations of Article 7).

a) Details of just satisfaction

Application No.

Case

Judgment of

Final on

Total Just satisfaction [2]

Deadline for payment

P aid on

23462/94

ARSLAN Günay

08/07/99

45 000 FRF

08/10/99

(a)

23536/94

BASKAYA Fikret and OKÇUOĞLU Mehemet Selim

08/07/99

206 800 FRF

08/10/99

12/10/99

25067/94

ERDOÄžDU Ãœmit et INCE Selami

08/07/99

92 004 FRF

08/10/99

17/11/99 (b)

24919/94

GERGER Haluk (No. 1)

08/07/99

60 000 FRF

08/10/99

(a)

23168/94

KARATAŞ Hüseyin

08/07/99

49 553.55 FRF

08/10/99

(a)

24246/94

OKÇUOĞLU Ahmet Zeki

08/07/99

60 000 FRF

08/10/99

(a)

23500/94

P OLAT Edip

08/07/99

1 415 USD

49 553.55 FRF

07/10/99

(a)

24762/94

SÃœREK Kamil Tekin (No. 4)

08/07/99

48 000 FRF

08/10/99

24/09/99

Application No.

Case

Judgment of

Final on

Total just satisfaction [3]

Deadline for payment

P aid on

26680/95

ÅžENER P elin

18/07/00

40 000 FRF

18/10/00

10/10/00

28635/95

AKSOY Ibrahim

10/10/00

10/01/01

57 639 DEM

10/04/01

20/02/01

28496/95

E.K. [Eren KESKIN]

07/02/02

07/05/02

13 700 EUR

07/08/02

05/07/02

29590/96

YAÄžMURDERELI EÅŸber

04/06/02

04/09/02

11 500 EUR

04/12/02

19/11/02

27692/95

KARAKOÇ Bahri Zülfü

15/10/02

15/01/03

27 935.94 EUR

15/04/03

01/05/03

(c)

28493/95

KÜÇÜK Yalçin (No. 1)

05/12/02

05/03/03

5 500 EUR

05/06/03

01/05/03

26982/95

ZANA Mehdi (No. 2)

06/04/04

06/07/04

10 000 EUR

06/10/04

11/11/04

26971/95

ZARAKOLU AyÅŸener and BELGE ULUSLARARASI YAYINCILIK

13/07/04

13/10/04

7 500 EUR

13/01/05

19/01/05 (b)

57250/00

ÃœLGER Iprahim

29/07/04

29/10/04

5 500 €

29/01/05

27/12/04

43995/98

OKUTAN Kemal

29/07/04

29/10/04

8 500 €

29/01/05

28/01/05

42713/98

YAZAR Feridun and others

23/09/04

23/12/04

24 000 €

23/03/05

22/03/05

38586/97

VARLI Veysi and others

19/10/04

19/01/05

29 000 €

19/04/05

49283/99

DOÄžANER Recep

21/10/04

21/01/05

7 500 €

21/04/05

21/03/05

40077/98

MARAÅžLI Recep

09/11/04

09/02/05

6 370 €

09/05/05

03/05/05

40985/98

ELDEN Cemil

09/12/04

09/03/05

13 200 €

09/06/05

08/06/05

36215/97

DAÄžTEKIN Hasan

13/01/05

13/04/05

5 500 €

13/07/05

01/07/05

37096/97

KARADEMIRCI Ismail and ohters

25/01/05

25/04/05

8 374.96 EUR

25/07/05

20/07/05

50747/99

ERDOST Muzaffer

08/02/05

08/05/05

8 500 €

08/08/05

27/07/05

49059/99

AYHAN Medeni (No. 2)

10/11/04

06/06/05

6 000 €

06/09/05

50744/99

TÖRE Teslim

19/05/05

19/08/05

8 910 €

19/11/05

09/11/05

46669/99

P ERINÇEK Doğu

21/06/05

21/09/05

16 790 €

21/12/05

14/12/05

46069/99

AĞIN Ömer

29/03/05

12/10/05

20 500 €

12/01/06

23/12/05

50997/99

HAN Tahir

13/09/05

13/12/05

6 000 €

13/03/06

07/03/06

53916/00

GÜNEŞ Aslı

27/09/05

27/12/05

7 799 €

27/03/06

21/03/06

(a) Cases where the payment was made, at the latest, by the deadline set by the judgment for the payment of just satisfaction.

(b) Cases where the applicants did not claim the payment of default interest, in view of the minimal sum involved.

(c) Case where default interests were paid.

b) Individual measures

As regards the requirement to erase the consequences of the violations for the applicants, the government stresses that:

- Following the abrogation of Article 8 of the Anti-Terrorism Law No. 3713 on 19/07/2003 by the Law No. 4928, any information on criminal records was erased ex officio by the General Directorate of Judicial Records and Statistics of Ministry of Justice (in conformity with Article 8 of the Law on Criminal Records, as amended by Law No. 4778 of 2/01/2003);

- As a result of the abrogation of Article 8 of Anti-terrorism Law and of the erasure of the applicants’ convictions from their criminal records, the restrictions on applicants’ civil and political rights are also automatically lifted;

- Furthermore, e rasure of convictions , including all their consequences, is possible, under certain conditions, in cases related to freedom of expression in general , following the entry into force on 10/02/2003 of Law No. 4809 on suspension of proceedings and sentences concerning crimes committed through the press.

Violations of Article 10 relating to convictions under former Article 8 of the Law against Terrorism

The provision at the origin of the applicants’ convictions in all these cases was abrogated on 19/07/2003 by the Law No. 4928, in the framework of an extensive programme of reforms aimed at bringing Turkish law in conformity with the Convention’s requirements concerning freedom of expression (see Interim Resolution ResDH(2004)38, 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 avoid new violations of this kind, notably through the amendment of Article 143 of the Turkish Constitution which concerns the composition of the National 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 and violations of Article 7 relating to the imposition of sanctions not provided by the law

These violations do not appear to have a systemic character and have therefore not called for the adoption of specific measures, other than the publication of the judgments and their dissemination to the competent courts, which has been done.

The government considers that the measures taken have fully remedied the consequences for the applicants of the violations of the Convention found by the European Court in these cases and will prevent new similar violations in future and that Turkey has therefore complied with its obligations under Article 46, paragraph 1, of the Convention.

[1] Adopted by the Committee of Ministers on 20 December 2006 at the 982nd meeting of the Ministers’ Deputies

[2] See the judgments for details about the amounts awarded and the modalities of payment prescribed.

[3] See the judgments for details about the amounts awarded and the modalities of payment prescribed.

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32 CASES AGAINST TURKEY CONCERNING FREEDOM OF EXPRESSION

32 CASES AGAINST TURKEY CONCERNING FREEDOM OF EXPRESSION