Final Resolution ResDH(2004)86

concerning the judgment of the European Court of Human Rights of 1 7 July 200 1 in the case of Sadak, Zana, Dicle and DoÄŸan against Turkey

(Adopted by the Committee of Ministers on 9 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 final judgment of the European Court of Human Rights in the Sadak and others case delivered on 1 7 July 200 1 and transmitted the same day to the Committee of Ministers under Article 46 of the Convention;

Recalling that the case originated in several applications (Nos. 29900/96, 2990 1 /96, 29902/96 and 29903/96) against Turkey , lodged with the European Commission of Human Rights on 1 7 January 1 996 under former Article 25 of the Co n vention by Mr Selim Sadak, Ms Leyla Za na, Mr Hatip Dicle and Mr Orhan DoÄŸan , four Turkish nationals, and that the Commission declared admissible the complaints relating to the lack of fairness of the criminal proceedings conducted against them, to the lack of independence and impartiality of the State Security Court which convicted them, in 1 994, to 1 5 years ' imprisonment for belonging to an armed organisation, as well as to the discriminatory violation of their right s of freedom of expression and freedom of association;

Whereas in its judgment of 1 7 July 200 1 the Court unanimously:

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

- held that there had been a violation of Article 6, paragraphs 3 (a), (b) and (d), of the Convention, taken together with paragraph 1 , on account of the fact that the applicants were not notified in good time that the charges against them had been altered and that they were unable to examine or have examined the witnesses against them;

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

- held that it was not necessary to examine the complaints under Articles 1 0, 1 1 and 1 4 of the Convention;

- h eld that the g overnment of the respondent state was to pay, within three months, 25 000 United States dollars to each of the four applicants in respect of all hea ds of damage taken together; 1 0 000 United States dollars to all the applicants together in respect of costs and expenses, and that simple interest at an annual rate of 6% would be payable on those sums 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 g overnment of the respondent state to inform it of the mea s ures which had been taken in consequence of the judgment of 1 7 July 200 1 , 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 gave the Committee information about the measures taken in order to erase the consequences for the applicants of the violations found by the Court and to prevent new violations of the same kind as those found in the present judgment; this information appears in the appendix to this resolution;

Having satisfied itself that, on 1 6 October 200 1 , within the time-limit set, the Government of the respondent state paid the a p plicants the sums provided for in the judgment of 1 7 July 200 1 ;

Recalling, as far as individual measures are concerned, Interim Resolution ResDH(2002)59 of 30 April 2002 in which the Committee requested the reopening of the criminal proceedings against the applicants or the adoption of other ad hoc measures to erase the consequences of their unfair conviction, as well as Interim Resolution ResDH(2004)3 1 of 6 April 2004 by which the Committee, stressing the importance of the presumption of innocence, requested that the applicants be released pending the outcome of their new trial in the absence of any compelling reasons justifying their continued detention;

Having noted with satisfaction that, on 1 4 July 2004, the Court of Cassation quashed the judgment of 21 April 2004 of the Ankara State Security Court confirming the applicants ' previous conviction, that, since June 2004, the applicants are no longer in detention following the suspension of the execution of their sentence, that restrictions on their travel abroad were removed on 1 6 September 2004, that the applicants are no longer deemed to be convicted and that a new trial is currently pending before the Ankara 11th Criminal Court;

Considering that, since the violation found by the European Court concerned the fairness of the incriminated proceedings and not their outcome, it is not necessary to await the outcome of the new trial;

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.

Appendix to Final Resolution ResDH(2004) ...

Information provided by the Government of Turkey during the examination of the Sadak, Zana, Dicle and DoÄŸan case

by the Committee of Ministers

With regard to individual measures

On 4 February 2003 a new law entered into force allowing the reopening of domestic proceedings in all cases which had already been decided by the European Court of Human Rights and in all new cases which would be brought before the European Court as from that day.

On the basis of this new law, the applicants ' request for retrial was accepted by the State Security Court of Ankara on 28 February 2003. The court upheld the applicants ' initial conviction on 2 1 April 2004. The applicants appealed to the Court of Cassation, which suspended the exec ution of the sentence on 9 June 2004 and ordered their release. Subsequently, the Court of Cassation quashed the aforementioned judgment of the State Security Court and remitted the case to trial before an ordinary court, as the State Security Courts had been abolished in the meantime. In so doing, the Court of Cassation stressed several shortcomings which had affected the re-trial proceedings, such as the fact that some witnesses for the defence had not been heard and the fact that the shortcomings identified by the European Court in its judgment of 1 7 July 200 1 had not been properly redressed. The Government of Turkey stresses that the judgment of the Court of Cassation has marked a new development of Turkish law inasmuch as it was also based on the new Article 90 of the Turkish Constitution, according to which international human rights treaties prevail over conflicting domestic law.

The new criminal proceedings are currently pending before the 1 1 th Criminal Court of Ankara.

In view of the fact that the criminal proceedings against the applicants have been reopened and that the applicants have been released and the restrictions on their travel abroad were removed on 1 6 September 2004, the Government of Turkey considers that all the measures needed in order to remedy the consequences of the violations of the Convention in this case have been adopted, as required by Article 46, paragraph 1 , of the Convention.

With regard to general measures

Concerning the violation of Article 6 resulting from the lack of independence and impartiality of the tribunal due to the presence of a military judge on the bench of the State Security Court, the Government of Turkey recalls that the Turkish Constitution was already changed in 1 999, following several judgments by the European Court, in order to replace the military judge in State Security Courts by a civil judge (see for example the case Çıraklar against Turkey , judgment of 28 October 1 998, Resolution DH(99)555). Furthermore, following the constitutional reform of May 2004, the State Security Courts have since been abolished.

As far as the other violations of Article 6 found by the European Court in this case are concerned, the Government of Turkey recalls the important contribution to the prevention of new similar violations of the right to a fair trial which is being made as a result of the increase in the direct effect being given to the European Convention on Human Rights and the Strasbourg case-law in Turkish law (see in this respect Resolution ResDH(200 1 )70 in the case of Aka against Turkey , judgment of 23 September 1 998) and through the extensive training efforts undertaken through the Council of Europe/European Commission Joint Initiatives and similar efforts. The Government of Turkey also underlines that the adoption of the new Article 90 of the Turkish Constitution and its implementation, as evidenced notably by the Court of Cassation judgment of 1 7 July 2004 in this case, will further consolidate such direct effect.

In view of the above developments, the Government considers that Turkey has also respected its obligations under Article 46, paragraph 1 , of the Convention as far as general measures are concerned.