Resolution ResDH(2004)91

concerning the judgment of the European Court of Human Rights of 9 October 2003 (final on 9 January 2004) in the case of Gönülşen against Turkey

(Adopted by the Committee of Ministers on 22 December 2004 at the 906th 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 judgment of the European Court of Human Rights in the Gönülşen case delivered on 9 October 2003 and transmitted to the Committee of Ministers once it had become final under Articles 44 and 46 of the Convention;

Recalling that the case originated in an application (No. 59649/00) against Turkey , lodged with the European Court of Human Rights on 1 6 June 2000 under Article 34 of the Co n vention by Mr Barış Gönülşen , a Turkish national, and that the Court declared admissible the complaints that first the applicant was convicted by a State Security Court which cannot be regarded as independent and impartial due to the presence of a military judge on the bench and secondly that he did not have a fair trial;

Whereas in its judgment of 9 October 2003 the Court unanimously:

- held that there had been a violation of Article 6, paragraph 1 , of the Convention on account of the lack of independence and impartiality of the Ankara State Security Court;

- held that it was not necessary to examine the other complaints under Article 6 of the Convention;

- held that the judgment in itself constituted sufficient just satisfaction as to the alleged non-pecuniary damage;

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

Having invited the government of the respondent state to inform it of the mea s ures which had been taken in consequence of the judgment of 9 October 2003, having regard to Turkey ' s obligation under Article 46, paragraph 1, of the Conve n tion to abide by it;

Whereas during the examination of the case by the Committee of Ministers, the government of the respondent state recalled that measures had already been taken to avoid new violations of the same kind as that found in this case, notably through the amendment of Article 1 43 of the Turkish Constitution which concerns the composition of the State Security Courts (Law No. 4388, adopted on 1 8 June 1 999), and the entry into force, on 22 June 1 999, of Law No. 4390, which provides that the functions of military judges and military prosecutors at the State Security Courts ended at that date (see Resolution DH(99)555 in the case of Çiraklar against Turkey ), and indicated that the Court ' s judgment had been sent out to the authorities directly concerned;

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.