Resolution CM/ResDH(2009)103[1]
Execution of the judgment of the European Court of Human Rights
Kalem against Turkey
(Application No. 70145/01 judgment of 5/12/2006, final on 5/03/2007)
The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);
Having regard to the judgment transmitted by the Court to the Committee once it had become final;
Recalling that the violation of the Convention found by the Court in this case concerns the breach of the applicant’s right to a fair trial in that, in criminal proceedings before the Ankara state security Court, he had no opportunity to examine or to have examined prosecution witnesses whose testimony constituted the essential upon which his conviction was based (violations of Article 6, paragraphs 1 and 3 (c) and (d) (see details in Appendix);
Having invited the government of the respondent state to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgment;
Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;
Having satisfied itself that, within the time-limit set, the respondent state paid the applicant the just satisfaction provided in the judgment (see details in Appendix),
Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:
- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and
- of general measures preventing similar violations;
DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and
DECIDES to close the examination of this case.
Appendix to Resolution CM/ResDH(2009)103
Information about the measures to comply with the judgment in the case of
Kalem against Turkey
Introductory case summary
In June 199, the applicant was charged before the Ankara State security Court with separatist propaganda (Article 8, paragraph 1 of Law No. 3713 at the material time) on the basis of complaints laid by fellow prisoners. During the proceedings, the state security court gave letters rogatory to the authorities of Keskin Prison to hear the testimony of complainants and witnesses who were the applicant’s former co-detainees. The state security court ultimately convicted the applicant for uttering separatist propaganda on the basis of these witnesses.
The European Court considered that the applicant had no opportunity at any point in the proceedings to question the witnesses and complainants, or to have them questioned, and thus contest the credibility of the testimony upon which his conviction relied (violation of Article 6, paragraph 1 and 3 (c) and (d)).
I.Payment of just satisfaction and individual measures
a) Details of just satisfaction
Pecuniary damage
Non-pecuniary damage
Costs and expenses
Total
-
6 000 EUR
2 000 EUR (less
701 EUR advanced in legal aid)
7 299 EUR
Paid on 31/05/2007
b) Individual measures
Following the abrogation of Article 8 of the Anti-terrorism Law No. 3713, which was applied by the state security court in the instant case, the case was reopened ex officio. By a judgment of 10 September 2003, the Ankara State Security Court decided to cancel the applicant’s sentence as well as all legal consequences thereof (see § 42 of the judgment).
II.General measures
The general measures to avoid new violations similar to those found in this case were taken in the context of the case of Sadak, Zana, Dicle and Doğan (Final resolution ResDH(2004)86). In particular, state security courts were abolished following the constitutional amendments of May 2004 (Article 143 of the Constitution) and their jurisdiction transferred to assize courts under the terms of Law No. 5190 which modified the Code of Criminal Procedure and abolishing state security courts (Article 394/a).
In addition, Article 180, paragraph 3, of the new Code of Criminal Procedure which came into force on 7 December 2004 provides that, unless strictly necessary, courts should not issue letters rogatory for the hearing of accused, witnesses or expert witnesses within their territorial jurisdiction.
III.Conclusions of the respondent state
The government considers that the measures adopted will prevent similar violations and that Turkey has thus complied with its obligations under Article 46, paragraph 1, of the Convention.
[1] Adopted by the Committee of Ministers on 30 September 2009 at the 1065th meeting of the Ministers’ Deputies
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