CoE: Implementation of judgments of the ECtHR

On 20 December 2010 the Parliamentary Assembly of the Council of Europe adopted Doc. 12455 on the "Implementation of judgments of the European Court of Human Rights". The report of the Committee on Legal Affairs and Human Rights had been prepared by the Rapporteur: Mr Christos POURGOURIDES, Cyprus, Group of the European People's Party. Only the section on Turkey is quoted.

General remarks

Turkey has around 1,232 cases pending before the Committee of Ministers, representing 15% of the Committee’s case load. These cases comprise many issues, the most long-standing ones being:

• The failure to re-open proceedings;
• Repeated imprisonment for conscientious objection;
• Freedom of expression;
• Excessive length of detention on remand;
• Actions of security forces;
• Issues concerning Cyprus.

The Rapporteur has still not been able to visit Turkey. Despite the Legal Committee’s decision of 29 January 2009 authorising him to carry out a visit to this country, he had not received an invitation from the Turkish parliamentary delegation, despite repeated requests since September 2009.

Failure to re-open proceedings

The Hulki Günes v. Turkey group of cases concerns unfairness of criminal proceedings where the applicants were convicted on the basis of statements taken under duress and in the absence of a lawyer, in violation of Articles 3 and 6 §§ 1 and 3.c. The re-opening of proceedings was requested by the Court but legislation that was passed amending the provisions in the Code of Criminal Procedure only provided for re-opening of judgments delivered before 4 February 2003 and in those applications lodged to the Court after that date; thus the cases pending at the time do not fall under the amendment.

Significant pressure has been brought to bear on the Turkish authorities over the last seven years, especially by the Committee of Ministers: two letters from the Chairperson of the Committee of Ministers, three interim resolutions, and a decision in September 2008 to examine the case at every regular meeting of the Committee until the Turkish authorities provided information on the measures they envisaged to resolve the issue. This eventually resulted in information on a draft law allowing the re-opening of proceedings in the present cases, which was submitted to Parliament for adoption, but no further information on its progress has been received. I urge the Chairperson of the Turkish parliamentary delegation, together with the (Turkish) President of the Assembly, to ensure that this piece of legislation receives priority.

Repeated imprisonment for conscientious objection to military service

Repeated imprisonment for conscientious objection, which is in violation of Article 3, stems from the possibility – provided for in legislation – of repeated prosecution for the rest of the applicant’s life. There are a few cases on the issue before the Court, but this does not detract from the fact that it is a grave violation of the Convention. In the case of Ülke v. Turkey, the applicant was convicted repeatedly over a number of years for refusing to wear his uniform on conscientious grounds, serving a total of 701 days in prison. He is currently in hiding for fear of further prosecution; he has no official address and has been forced to break off all contact with the administrative authorities. As the Court stated, such a life amounts “almost to civil death”.

The individual measures and general measures in this case are intrinsically linked. Despite interim resolutions having been adopted in October 2007 and March 2009, no information has been forthcoming in response to the judgment of the Court regarding the individual measures. In March 2010, the Turkish authorities indicated to the Committee of Ministers that they would provide concrete information on legislative amendments.

Freedom of expression

The Inçal v. Turkey group of cases concerns unjustified interferences with Article 10 of the Convention in relation to the applicants’ convictions for publishing articles and books. This has been an issue since 1998 and, twelve years on, it remains so. In terms of individual measures, the Turkish authorities indicated they would take measures to erase the convictions of several applicants who were convicted under Article 8 of the Anti-terrorism Law No. 3713 following its abrogation.

There have been general measures taken to solve the problem, such as: a number of constitutional amendments on freedom of expression, a package of laws to revoke and amend offending provisions of the Anti-Terrorism Law, and training and awareness-raising initiatives for judges and prosecutors in order to encourage the application of Convention standards, with examples of such practice from domestic courts.

These legislative amendments, however, do not eradicate the root of the problem and are merely a different expression of the same Convention-violating substance. In addition, the examples of court practice provided by the Turkish authorities do not represent conclusive evidence that the Convention standards are being upheld, especially with respect to the 2004 Constitutional amendment of Article 90 of the Constitution, which specifies the direct application of the Convention in domestic law. It is vital that the Convention and the Court’s case law are reflected in the Turkish domestic legislation and its application. On this aspect, it is understood the Committee of Ministers has been awaiting information since September 2008.

Excessive length of detention on remand

The leading group of cases identifying excessive length of detention of remand as a major problem is Halise Demirel v. Turkey, with the Court rendering a quasi-pilot judgment in Cahit Demirel v. Turkey, which exposed the “widespread and systemic problems arising out of the Turkish criminal justice system and the state of the Turkish legislation”. There is an absence of relevant and sufficient reasons given by domestic courts in decisions to extend detention, violating Article 5 § 3 of the Convention, as courts tend to use stereotypical wording that does take into account the circumstances of the individual. In addition, an effective remedy to challenge the lawfulness of detention on remand does not exist and compensation cannot be obtained, resulting in a violation of Articles 5 § 4 and 5 § 5, respectively.

Positive steps have been taken by the Turkish authorities through legislative amendments, for instance the Code of Criminal Procedure (Law No. 5271) which came into force on 1 June 2005. This provides safeguards ensuring that reasons for detention are given, that continued detention on remand is reviewed every thirty days, that maximum detention on remand does not exceed two years for assize courts’ crimes and that there must be a right to compensation. The authorities also provided information on how this has been implemented in domestic courts.

The legislative steps taken can be seen as progress, but the information provided on how they are implemented is inconclusive and further evidence is necessary to ensure that relevant and sufficient reasons are being used to justify detention. Indeed, information concerning a December 2009 Court of Cassation decision on the criminal liability of judges who do not provide such reasons has been received and is being scrutinised by the Committee of Ministers. In any event, legislative amendment to execute a judgment should not present a risk of future violations. Additionally, it must be noted that no information is forthcoming from the Turkish authorities on the introduction of an effective remedy to challenge the lawfulness of detention on remand, which must now be considered a matter of urgency for the Chairperson of the Turkish parliamentary delegation.

Actions of security forces

The anti-terror actions of the security forces in the 1990s brought about an influx of cases to the Court, which found violations in relation to several articles, including Articles 2, 3, 5, 8 and 13 and Article 1 of Protocol No. 1. The 2008 Committee of Ministers’ interim resolution reiterated previously identified structural problems that caused these violations, in particular ineffectiveness of procedural safeguards in custody, attitudes and training of security forces, establishing criminal liability at domestic level and shortcomings in ensuring adequate reparations to victims.

In the light of the Committee of Ministers' interim resolution in 2005, the Turkish authorities have made progress in resolving the structural problems: a legislative framework is now in place to provide procedural safeguards in police custody; human rights is in the curriculum for initial training of the security forces, legislative amendments have been made to give direct effect to the Convention in Turkish domestic law governing use of force by security personnel and a range of effective remedies have been introduced to complement the “Law on Compensation” of 27 July 2004, which provides the possibility for pecuniary compensation for damages in relation to terrorist activities and operations carried out between July 1987 and December 2006.

That said, a significant problem remains outstanding in the series of shortcomings still apparent in investigating abuses by security forces. The Bati v. Turkey group of cases highlights the fact that, despite the passing of many years, impunity continues to reign in the absence of an effective investigation. The lack of independence of the investigating authorities, the impossibility for the applicants to access records or interview witnesses and accused officers, and the failure to suspend officials from duty despite proceedings against them, are just a number of the deficiencies that violate "procedural" Articles 2 and 3. In terms of individual measures, information on whether the investigations will be re-opened is awaited. In respect of general measures, Articles 94 and 95 of the new Criminal Code provide for longer sentences for the above-mentioned abuses, and the Ministry of Justice has taken steps to ensure safe prisoner transfers, but there has been no action taken to address the root of the problem and substantial improvement is needed.

It must also be noted that there exists a concern regarding the actions of the security forces in dispersing peaceful demonstrations. Oya Ataman v. Turkey dealt with the use of excessive force in violation of Article 11 of the Convention, the freedom of assembly, and the connected group of cases showed violations of Article 3 and 13. There have been a few amendments made to the legal framework surrounding police use of force in this area – the most notable being the gradual and proportionate use of firearms. However, the Committee of Ministers has been awaiting information on how these amendments will be applied in practice since April 2008.

Specific issues of concern

The interstate case Cyprus v. Turkey relates to the situation that has existed in the northern part of Cyprus since the invasion, by Turkey, of the northern part of Cyprus in 1974 (euphemistically referred to as "conduct of military operations’) and the continuing division of the Republic of Cyprus and the military occupation of 40% of the country’s national territory. At present, the Committee of Ministers supervises closely the issues concerning missing persons and property rights of displaced Greek Cypriots.

As regards the issue of missing persons, additional measures are required to ensure effective investigations into the fate of missing persons. That said, no answer has been given so far by the Turkish authorities to the Committee of Ministers’ request for information on the concrete measures envisaged in the continuity of the work of the Committee on Missing Persons in Cyprus with a view to the effective investigations required by the judgment.

As regards the property rights of displaced Greek Cypriots, the Committee of Ministers is currently examining the consequences of the Court’s Grand Chamber decision on the admissibility of the application Demopoulos v. Turkey and seven other cases delivered on 5 March 2010. The Court concluded in this decision that the Law 67/2005 of December 2005, according to which all natural and legal persons claiming rights to immovable or movable property could bring a claim before the Immovable Property Commission, “provides an accessible and effective framework of redress in respect of complaints about interference with property owned by Greek Cypriots”.

As far as Xenides-Arestis v. Turkey is concerned, the Committee of Ministers has already adopted two interim resolutions urging the Turkish authorities to pay the just satisfaction awarded in 2006 by the Court. The fact that this payment is still outstanding is an unacceptable state of affairs.

Additional comments

In the above areas of concern, the Committee of Ministers has been waiting for information from the Turkish authorities for a number of years. The need, therefore, for a structure in the Turkish Parliament that plays an extensive role in the supervision of the execution of Court judgments cannot be overstated.