Resolution ResDH(2004)93

concerning the judgments of the European Court of Human Rights of 7 November 2002 (final on 7 February 2003), 5 June 2003 (final on 5 September 2003), 24 June 2003 (final on 24 September 2003) and 1 0 July 2003 (final on 10 October 2003)

in four cases against Turkey (see Appendix) concerning the lack of independence and impartiality of the State Security Courts on account of the presence of a military judge on the bench

(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. 1 1 (hereinafter referred to as “the Convention”),

Having regard to the judgments of the European Court of Human Rights in the four cases details of which appear in the appendix to this resolution, delivered on 7 November 2002, 5 June, 24 June and 1 0 July 2003 and transmitted to the Committee of Ministers once they had become final under Articles 44 and 46 of the Convention;

Recalling that the cases originated in applications against Turkey , lodged with the European Commission of Human Rights between 23 March and 2 1 August 1 998 under former Article 25 of the Co n vention by five Turkish nationals, and that the Court, seised of the cases under Article 5, paragraph 2, of Protocol No. 1 1 , declared admissible the complaints that first, the applicants were 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 they did not have a fair trial (in all cases except that of Yüksel);

Whereas in its judgments of 7 November 2002, 5 June, 24 June and 1 0 July 2003 concerning these cases the Court unanimously:

- held, that there had been a violation of Article 6, paragraph, 1 of the Convention;

- held that it was not necessary to examine the other complaints under Article 6 of the Convention (in all cases except that of Yüksel);

- held, that that the judgment in itself constituted sufficient just satisfaction for the non-pecuniary damage alleged by the applicants;

- held that the government of the respondent state was to pay the applicants, within three months from the date at which the judgments became final, the amounts of costs and expenses (set out in the appendix to this resolution) 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 shall be payable from the expiry of the above-mentioned three months until settlement;

- dismissed, the remainder of the applicants ' 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 judgments of 7 November 2002, 5 June, 24 June and 1 0 July 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 cases 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 the one found in these cases, 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 the military judges and military prosecutors at the State Security Courts end at this date (see Resolution DH(99)555 in the case of Çiraklar against Turkey ), and indicated that the Court ' s judgments had been sent out to the authorities directly concerned;

Having satisfied itself that on the dates indicated in the appendix, within the time-limit set, the government of the respondent state had paid the a p plicants the sums provided for in the Court ' s judgments,

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 these cases.

Appendix to Resolution ResDH(2004)93

Details of the just satisfaction awarded to the applicants

Cases

Application No.

Date of judgment

Total sum

Payment on

Orhan KAYA

44272/98

05/06/2003 – final on 05/09/2003

1 500 euros

05/ 1 2/2003

Yaşar ÖZEL

42739/98

07/ 1 1 /2002 – final on 07/02/2003

2 370 euros

30/04/2003

Mustafa YÃœKSEL

42430/98

24/06/2003 – final on 24/09/2003

870 euros

1 8/ 1 2/2003

Ali Rıza YURTDAŞ and Mehmet INCI

40999/98

1 0/07/2003 – final on 10/10/2003

1 370 euros

05/ 1 2/2003