Information Note on the Court’s case-law No. 165

July 2013

Hulki Güneş v. Turkey ( dec. ) - 17210/09

Decision 2.7.2013 [Section II]

Article 35

Article 35-3

Ratione materiae

Derogation from statutory restriction, in cases pending before Committee of Ministers, on reopening of criminal trial following a finding of a violation by the Court: inadmissible

Facts – In March 1994 the State Security Court sentenced the applicant to death, which was commuted to life imprisonment. In May 1995 he applied to the European Commission of Human Rights. The application was transmitted to the European Court, which declared it admissible in October 2001. In June 2003 the Court found that there had been a violation of Articles 3 and 6 §§ 1 and 3 (d) of the Convention*.

In the meantime, a law enacted in January 2003 provided for the reopening of criminal proceedings following a judgment by the Court finding a violation in only two circumstances: where the Court had delivered a final judgment prior to the entry into force of the law, or where it had delivered a final judgment in respect of an application lodged after the law had entered into force. In October 2003, on the basis of the Court’s judgment, and relying on the Turkish Constitution, the applicant applied to the State Security Court to have his trial reopened. It dismissed his request, holding that the applicant’s case was not covered by the aforementioned law, since he had lodged his application before the Strasbourg institutions in May 1995 and the Court had issued its judgment after the law’s entry into force. The various appeals lodged by the applicant to have his trial reopened were unsuccessful.

Law – Article 35 § 3: With regard to the execution of the judgment and the measures which might have been taken to afford restitutio in integrum , the Committee of Ministers, in its Resolution CM/ ResDH (2007)150, considered, in particular, that “the Court’s judgment required the adoption of individual measures in view of the extent of the violations of the right to a fair trial casting serious doubts on the safety of the applicant’s conviction”. It had accordingly urged the Government “to remove promptly the legal lacuna preventing the reopening of domestic proceedings in the applicant’s case”. In that respect, subject to monitoring by the Committee of Ministers, the respondent State remained free to choose the means by which it would discharge its legal obligation under Article 46 of the Convention, provided that such means were compatible with the conclusions set out in the Court’s judgment. The Court could not assume any role in this dialogue or in respect of the execution of its judgment. The Convention did not give it jurisdiction to direct a State to open a new trial or to quash a conviction. It followed that it could not find a State to be in breach of the Convention on account of its failure to take either of these courses of action when executing one of its judgments.

The Court’s case-law provided examples of supervision of execution in the context of examining the merits of cases. In particular, through the concept of “a new issue”, the Court could hold that it had jurisdiction to examine a case which concerned, in part, the execution of its earlier judgment. However, that consideration did not apply in this case.

The Court stressed the importance of ensuring that procedures at national level were in place which allowed a case to be revisited in the light of a finding by it that Article 6 of the Convention had been violated. Such procedures could be regarded as an important aspect of the execution of its judgments and demonstrated a State’s commitment to the Convention and the Court’s case-law. In that connection, the Court attached considerable weight to the fact that the law enacted on 11 April 2013 provided for a derogation from the one-year restriction imposed by the Code of Criminal Procedure on the reopening of criminal trials, in respect of those cases pending before the Committee of Ministers of the Council of Europe on 15 June 2012 with regard to monitoring of their execution. The individuals affected by that derogation, including the applicant, could request the reopening of their trials within three months of the law’s entry into force on 30 April 2013.

Conclusion : inadmissible (unanimously).

* See the judgment Hulki Güneş v. Turkey , 28490/95 , 19 June 2003, Information Note 54.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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