Resolution ResDH (2002)107 concerning the judgment of the European Court of Human Rights of 23 September 1998 in the case of Demir and others against Turkey

(Adopted by the Committee of Ministers on 21 October 2002 at the 810th meeting of the Ministers’ Deputies)

The Committee of Ministers, under the terms of former Article 54 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as “the Convention”),

Having regard to the judgment of the European Court of Human Rights in the Demir and others case delivered on 23 September 1998 and transmitted the same day to the Committee of Ministers;

Recalling that the case originated in three applications (No. 21380/93, 21381/93 and 21383/93) against Turkey, lodged with the European Commission of Human Rights on 12 February 1993 under Article 25 of the Convention by Mr Hüseyin Demir , Mr Faik Kaplan and Mr Şükrü Süsin , Turkish nationals, and that the Commission declared admissible the applicants' complaints relating to their prolonged detention (from 16 to 23 days) in police custody in Idil (South-Eastern region subjected to the state of emergency) without any judicial review;

Recalling that the case was brought before the Court by the Commission on 11 July 1997;

Whereas in its judgment of 23 September 1998 the Court unanimously:

- dismissed the Government‘s preliminary objections;

- held, that there had been a violation of Article 5, paragraph 3, of the Convention;

- held, that the government of the respondent state was to pay, within three months, in respect of non-pecuniary damage, the following sums, to be converted into Turkish liras at the rate applicable on the date of settlement

a) 20 000 French francs to Mr Kaplan;

b) 25 000 French francs each to Mr Demir and Mr Süsin ;

c) and that simple interest at an annual rate of 3,36% would be payable on those sums from the expiry of the above-mentioned three months until settlement;

- dismissed the remainder of the claim for just satisfaction;

Having regard to the Rules adopted by the Committee of Ministers concerning the application of Article 46, paragraph 2, of the Convention which are applicable by decision of the Committee of Ministers to cases referred under former Article 54 of the Convention;

Having invited the government of the respondent state to inform it of the measures which had been taken in consequence of the judgment of 23 September 1998, having regard to Turkey’s obligation under Article 46, paragraph 1 (former Article 53) of the Convention to abide by it;

Having satisfied itself that on 23 December 1998, within the time-limit set, the government of the respondent state paid the applicants the sums provided for in the judgment of 23 September 1998;

Considering that, during the examination of the case by the Committee of Ministers, the government of the respondent state gave the Committee information about the general measures taken to prevent new violations of the same kind as those found in the present judgment; this information appears in the appendix to this resolut ion;

Declares, after having taken note of the information supplied by the Government of Turkey, that it has exercised its functions under Article 46, paragraph 2 (former Article 54) of the Convention in this case.

Appendix to Resolution ResDH (2002)107

Information provided by the Government of Turkey during the examination of the Demir and others case by the Committee of Ministers

The new Law No. 4229, which was adopted on 6 March 1997 following the Court's judgment of 18 December 1996 in the Aksoy against Turkey case, reduced the maximum periods of detention in police custody before presenting detainees to a judge (see Interim Resolution DH(99)434).

The maximum period in the case of offences falling under the jurisdiction of the State Security Courts and committed by several persons in concert was reduced from 15 to 7 days under normal circumstances and from 30 to 10 days in a state of emergency. In the case of offences falling under the jurisdiction of the State Security Courts and committed by individuals, the maximum period in a state of emergency was reduced from 96 to 48 hours. Finally, the maximum periods of police custody were also reduced in the case of ordinary offences committed by several persons in concert: from 8 to 7 days both under normal circumstances and in a state of emergency. In all cases, the extension of police custody beyond four days requires a court order, following application by the prosecution.

The new provisions were however considered to be insufficient to prevent new violations of Article 5§3 since this Article had consistently been held to require that the authorities must automatically present the detainee before a judge within a period of 4 days, except in the case of a derogation under Article 15. A new reform had thus to be prepared.

On 17 October 2001, Article 19 of the Turkish Constitution was amended so as to limit to 4 days the maximum length of police custody before presenting the detainee before a judge except in case of a derogation in a state of emergency. In accordance with Articles 11 and 138 of the Constitution, the newly adopted provisions of Article 19 immediately overruled the former provisions of the Code of Criminal Procedure and thus became directly applicable by the authorities. This direct applicability of Article 19 of the Constitution was immediately confirmed by domestic courts (see, for example, decision of 24 October 2001 of the 2nd Diyarbakir State Security Court). The provisions of the Code of Criminal Procedure relating to police custody were subsequently put in conformity with the new constitutional provision.

Since all above-mentioned reforms were adopted with a view to complying with the Convention's requirements as set out in the Court's case-law, the Government trusts that the Turkish courts will diligently apply the newly adopted provisions in the light of the Court's judgments, which have binding force on all Turkish authorities in accordance with Turkey's undertaking under Article 46§1 of the Convention.

The Government concludes that the measures adopted will prevent new violations of the Convention similar to that found in the present judgment and that Turkey has thus complied with its obligations under Article 46, paragraph 1 (former Article 54) in this case.