Resolution ResDH (2002)110 concerning the judgment of the European Court of Human Rights of date 26 November 1997 in the case of Sakık 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 Sakık and others case delivered on 26 November 1997 and transmitted the same day to the Committee of Ministers;

Recalling that the case originated in six applications (Nos. 23878/94 to 23883/94) against Turkey, lodged with the European Commission of Human Rights on 11 March 1994 under Article 25 of the Convention by Mr Sırrı Sakık , Mr Ahmet Türk , Mr Mahmut Alınak , Mrs Leyla Zana , Mr Mehmet Hatip Dicle and Mr Orhan Doğan , Turkish nationals, and that the Commission declared admissible the applicants' complaints relating to the unlawfulness of their arrest to their prolonged detention (from 12 to 14 days) in police custody in Ankara without any judicial review, to the absence of judicial remedy to challenge the lawfulness of their detention and to the impossibility to claim compensation in respect of the excessive length of their detention;

Recalling that the case was brought before the Court by the Commission on 10 July 1996;

Whereas in its judgment of 26 November 1997 the Court unanimously:

- held that the derogation made by Turkey under Article 15 of the Convention was not applicable in the case;

- held, that there has been no breach of Article 5, paragraph 1, of the Convention as regards the lawfulness of the applicants' detention;

- held that there has been a breach of Article 5, paragraph 3, of the Convention on account of the authorities' failure to present the applicants promptly and automatically before a judge;

- held that there has been a breach of Article 5, paragraph 4, of the Convention on account of the impossibility for the applicants to bring judicial proceedings with a view to challenging the lawfulness of their arrest;

- held that there has been a breach of Article 5, paragraph 5, of the Convention as regards the applicants' right to claim compensation in respect of the excessive length of their detention;

- held :

a) that the respondent state was to pay, within three months, the following sums:

i . for non-pecuniary damage, 25,000 French francs each to Mr Sakık , Mr Türk , Mr Alınak and Mrs Zana and 30,000 French francs each to Mr Dicle and Mr Doğan , which sums are to be converted into Turkish liras at the rate applicable on the date of settlement;

ii. for costs and expenses, 120,000 French francs to the applicants;

(b) that simple interest at an annual rate of 3.87% should be payable on these amounts 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 26 November 1996, 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 29 December 1997, within the time-limit set, the government of the respondent state paid the applicants the sums provided for in the judgment of 26 November 1997;

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 resolution;

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)110

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

Length of detention before presenting a person before a judge (Article 5, paragraph 3):

The new Law No. 4229, which was adopted on 6 March 1997 following the judgment of the European Court of Human Rights 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). As regards the cases similar to the present one, i.e. those falling under the jurisdiction of State security courts outside the emergency rule, the maximum period of police custody was reduced from 15 to 7 days.

The new provisions were however considered to be insufficient to prevent new violations of Article 5, paragraph 3 similar to those found in the present case 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.

Detainee's right to challenge the lawfulness of detention before a judge (Article 5, paragraph 4):

The violation of Article 5, paragraph 4 found by the Court was due to the impossibility for the applicants, who had been charged with offences falling under the jurisdiction of State security courts, to bring judicial proceedings to challenge the lawfulness of their detention under Article 128, paragraph 4 of the Code of Criminal Procedure ( habeas corpus proceedings). The above-mentioned Law No. 4229 of 6 March 1997 granted the right to bring such proceedings to all persons irrespective of the offence they were charged with.

Right to claim compensation for illegal detention (Article 5, paragraph 5):

The violation of this right was largely due to the fact that, under Act No. 466, the applicants could not validly claim compensation for violations of Article 5, paragraphs 3 and 4 unless their detention also violated the corresponding provisions of Turkish law, and this was not the case.

As the constitutional and legislative provisions governing police custody were subsequently put in conformity with Article 5 requirements (see the reforms mentioned above), any violation of Article 5, paragraphs 3 and 4 would henceforth also amount to a violation of Turkish law itself and could thus be adequately compensated under Section 1 of the Act No. 466 (see paragraph 24 of the Court's judgment).

The Government furthermore submitted to the Committee a number of domestic court judgments delivered after the Sakık and others judgment, which have clearly evidenced that effective compensation is today granted for unlawful detention, even in cases falling under jurisdiction of State security courts or of military courts.

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, paragraph 1 of the Convention.

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