Final Resolution ResDH (2002)109 Human Rights Application No. 28010/95 ÅžimÅŸek 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 32 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as “the Convention”),

Having regard to Interim Resolution DH (99) 561, adopted on 8 October 1999 in the case of ÅžimÅŸek against Turkey, in which the Committee of Ministers decided that there had been a violation of Article 5, paragraph 3, 4 and 5 of the Convention due to the applicant's prolonged detention (7 days) in police custody in Ankara without any judicial review, due to the absence of effective judicial remedies to challenge the lawfulness of his detention and to the impossibility to claim compensation in respect of the excessive length of his detention, and also decided to make public the report of the European Commission of Human Rights;

Whereas the Committee of Ministers examined the proposals made by the Commission when transmitting its report as regards just satisfaction to be awarded to the applicant, proposals supplemented by a letter of the President of the Commission dated 30 October 1999;

Whereas at the 695th meeting of the Ministers’ Deputies, the Committee of Ministers, agreeing with the Commission’s proposals, held by a decision adopted on 14 February 2000, in accordance with former Article 32, paragraph 2, of the Convention, that the Government of the respondent State was to pay the applicant as just satisfaction, within three months, 10 000 French francs in respect of non-pecuniary damage, and that interest should be payable on any unpaid sum, calculated on the basis of each full elapsed month of delay at the statutory rate applicable on the date of this decision, it being understood that the interest would accrue from the expiry of the time-limit until full payment was placed at the disposal of the applicant;

Whereas the Committee of Ministers invited the government of the respondent state to inform it of the measures taken following its decisions of 8 October 1999 and 14 February 2000, having regard to Turkey’s obligation under former Article 32, paragraph 4, of the Convention to abide by them;

Whereas the Committee of Ministers satisfied itself that on 8 May 2000, within the time-limit set, the government of the respondent state had paid the applicant the total sum of 10 000 French francs as just satisfaction,

Whereas during the examination of the case by the Committee of Ministers, the government of the respondent state accordingly gave the Committee information about the measures taken in consequence of the Committee’s decisions so as to avoid new violations of the same kind as those found in this case; this information appears in the appendix to the present resolution;

Declares, after having taken note of the measures taken by the Government of Turkey, that it has exercised its functions under former Article 32 of the Convention in this case.

Appendix to Final Resolution ResDH (2002)109

Information provided by the Government of Turkey during the examination of the ÅžimÅŸek case 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 case of Aksoy against Turkey, reduced the maximum periods of detention in police custody before presenting detainees to a judge (see Interim Resolution DH(99)434). As regards 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 that 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 applicant, 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 applicant could not validly claim compensation for violations of Article 5, paragraphs 3 and 4 unless his 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 facts of the ÅžimÅŸek case, 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 here at issue and that Turkey has thus complied with its obligations under former Article 32, paragraph 4 in the present case.