Resolution ResDH(2004)92

concerning the judgment of the European Court of Human Rights of 5 June 2003 (final on 5 September 2003) in the case of Işık 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 Işık case delivered on 5 June 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. 50 1 02/99) against Turkey , lodged with the European Court of Human Rights on 6 July 1 999 under Article 34 of the Co n vention by Ms Zeynep Işık , a Turkish national, and that the Court declared admissible the complaint 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 the non-disclosure of the opinion of the prosecutor had breached her right to defence;

Whereas in its judgment of 5 June 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 Erzurum State Security Court;

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

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

- held that the government of the respondent state was to pay the applicant, within three months from the date at which the judgment became final, 2 000 euros in respect of costs and expenses less 630 euros received in legal aid, to be converted into Turkish liras at the rate applicable on the date of settlement and that simple interest at a rate equal to the marginal lending rate of the European Central Bank plus three percentage points would be payable from the expiry of the above-mentioned three months until settlement;

- dismissed the remainder of the applicant ' s claim for just satisfa c tion;

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 5 June 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, particularly 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 this 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;

Having satisfied itself that on 9 December 2003, after the expiry of the time-limit set, the government of the respondent state had paid the a p plicant the sum provided for in the judgment of 5 June 2003, and having taken note of the fact that the applicant has waived her right to default interest in view of the minimal sum involved,

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.