Resolution ResDH(2005)19

concerning the judgment of the European Court of Human Rights of 8 November 2001 (Friendly settlement) in the case of Tuncay and Özlem Kaya against Turkey

(Adopted by the Committee of Ministers on 23 February 2005 at the 914th meeting of the Ministers ' Deputies)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms as amended by Protocol No. 11 (hereinafter referred to as “the Convention”),

Having regard to the final judgment of the European Court of Human Rights in the case of Tuncay and

Özlem Kaya delivered on 8 November 2001 and transmitted the same day to the Committee of Ministers under Article 46 of the Convention;

Recalling that the case originated in an application (No. 31733/96) against Turkey , lodged with the European Commission of Human Rights on 13 April 1996 under former Article 25 of the Co n vention by Mr Tuncay Kaya and Ms Özlem Kaya , two Turkish nationals, and that the Court, seised of the case under Article 5, paragraphs 2, of P rotocol No. 11, declared admissible the first applicant ' s complaint relating to the excessive length of his detention in police custody, to the absence of a judicial remedy to challenge the lawfulness of his detention and to the violation of his right to a fair trial (lack of independence and impartiality of the State Security Court and lack of assistance by a lawyer during detention);

Whereas in its judgment of 8 November 2001 the Court, after having taken formal note of a friendly settlement reached by the government of the respondent state and the applicant, and having been satisfied that the settlement was based on respect for human rights as defined in the Convention or its Protocols, decided unanimously to strike the case out of its list and took note of the parties ' undertaking not to request a re-hearing of the case before the Grand Chamber;

Whereas under the above-mentioned friendly settlement it was agreed that the Government of Turkey would pay the first applicant, the global sum of 37 000 French francs within three months as from the delivery of the judgment including the default interest due;

Recalling that Rule 43, paragraph 3, of the Rules of the Court (former Article 44, paragraph 2) provides that the striking out of a case which has been declared admissible shall be effected by means of a judgment which the President shall forward to the Committee of Ministers once it has become final in order to allow it to supervise, in accordance with Article 46, paragraph 2, of the Convention, the execution of any undertakings which may have been attached to the discontinuance, friendly settlement or solution of the matter;

Having regard to the Rules adopted by the Committee of Ministers concerning the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that on 15 mars 2002, after the expiry of the time-limit agreed to under the terms of the friendly settlement, the Government of the respondent state had paid the first applicant the sum provided for in the friendly settlement ;

Recalling that, as regards the applicant ' s complaint declared admissible in this case, measures had already been taken to prevent possible violations of the Convention arising from this kind of complaint, in particular through the amendments of the legislation governing police custody (see Resolution DH (2002) 110 in the case of Sakık and others) and 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 that date (see Resolution DH (99) 555 in the case of Çiraklar against Turkey);

Declares, after having examined the information supplied by the Government of Turkey, that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in this case.