Information Note on the Court’s case-law No. 132

July 2010

Öcalan v. Turkey (dec.) - 5980/07

Decision 6.7.2010 [Section II]

Article 46

Article 46-2

Execution of judgment

Assize court refusal to hold new trial following re-examination of case-file pursuant to judgment of European Court: inadmissible

Article 6

Criminal proceedings

Assize court refusal to hold new trial following re-examination of case-file pursuant to judgment of European Court: inadmissible

Facts – In 1999 the applicant, the former leader of the PKK (Workers’ Party of Kurdistan), was convicted of carrying on activities with a view to bringing about the secession of part of the national territory and of having formed and led an armed organisation to that end. He was sentenced to death by the National Security Court. In 2002 his sentence was commuted to life imprisonment. On 12 May 2005, by a final judgment of the Grand Chamber ( Öcalan v. Turkey [GC], no. 46221/99, Information Note no. 75), the European Court held that there had been a violation of Article 6 of the Convention on account of the lack of fairness of the proceedings before the National Security Court and the lack of independence and impartiality of that court. The Court also found that a retrial or a reopening of the case, if requested by the applicant, represented the most appropriate way of redressing the violation. In 2006 the Assize Court dismissed a request by the applicant for a retrial. In 2007 the Committee of Ministers of the Council of Europe concluded that the respondent State had fulfilled its obligations under Article 46 of the Convention and decided to close its examination of the execution of the Court’s judgment.

Law – Article 46: Complaint regarding the execution by the national authorities of the Court’s judgment of 12 May 2005 – The Committee of Ministers, by adopting Resolution CM/ResDH(2007)1 of 14 February 2007, had terminated its supervision of the execution of the judgment after having regard to all the materials in the file including the decision of the Assize Court of July 2006 to undertake a full review of the case but to refuse the applicant a new trial on the ground that he had unequivocally been found guilty. The Committee of Ministers had concluded that the review carried out by the Assize Court had fulfilled the State’s obligations under Article 46 of the Convention with regard to the requisite individual measures. No new factual or legal elements had been submitted to the national authorities or the Committee of Ministers – apart from the documents relating to execution of the Court’s judgment by those bodies – that had not been examined and determined by the judgment in question. Nor had the execution procedure in question given rise to any new fact. It followed that the Court could not examine the present complaint without encroaching on the powers of the Committee of Ministers under Article 46.

Conclusion : inadmissible (incompatible ratione materiae ).

Article 6: Complaint regarding the domestic proceedings for the execution of the judgment – The proceedings for review of the case, which consisted in examining the applicant’s request for a retrial following a finding of a violation by the Court, were similar – or at least comparable – to proceedings for the reopening of criminal proceedings or for a retrial under the domestic law. They were brought by a person whose conviction had become final and did not involve the determination of a “criminal charge”, but rather the question whether the conditions for reopening criminal proceedings had been met. Accordingly, Article 6 did not apply to the proceedings in question.

Conclusion : inadmissible (incompatible ratione materiae ).

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

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