Resolution CM/ResDH(2009)108[1]
Execution of the judgment of the European Court of Human Rights
Kızılyaprak against Turkey
(Application No. 9844/02, judgment of4/03/2008, final on 4/06/2008)
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 fact that the applicant was not summonsed to attend the state security court hearings as a result of which he was convicted (violation of Article 6, paragraph 1) (see details in Appendix);
Having invited the government of the respondent state to inform the Committee of the measures taken in order 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)108
Information about the measures to comply with the judgment in the case of
Kızılyaprak against Turkey
Introductory case summary
The case concerns the unfairness of certain criminal proceedings before a state security court, in that the applicant was never summonsed to attend the court which convicted him. In July 2000, criminal proceedings were brought against him on charges of separatist propaganda arising from articles appearing in a journal of which he was also editorialist. The following November these proceedings, brought before Istanbul State Security Court No. 2, were joined with other proceedings, against the proprietor of the journal in question, before Istanbul State Security Court No. 3. Following the sole hearing held before the latter tribunal after the two cases were joined, the applicant was sentenced to imprisonment without having been summonsed to appear. The European Court found that the applicant’s consequent failure to appear could not be considered justified in the circumstances of the case and compromised the fairness of the trial (violation of Article 6§1).
I.Payment of just satisfaction and individual measures
a) Details of just satisfaction
Pecuniary damage
Non-pecuniary damage
Costs and expenses
Total
...
2 000 EUR
-
2 000 EUR
Paid on 3/09/2008
b) Individual measures
The prison sentence pronounced by the state security court was impossible to impose, as the applicant decamped. Following the repeal of the Article 8 of Law No. 3713 on the fight against terrorism, applied by the state security court in this case, the trial was reopened ex officio. On 7 October 2003, the state security court acquitted him and decided to lift execution of the sentence and all legal consequences of his conviction. As a consequence, the applicant’s criminal record was erased.
II.General measures
Under the terms of Article 193 of the New code of Criminal Procedure which entered into force on 17/12/2004, part from cases explicitly provided by law, no court may hold a hearing in the absence of the accused. If the accused decides not to appear without a valid reason, the court may decide to issue a summons. The second paragraph of the Article (modified on 25/05/2005) provides that a court may not close criminal proceedings before it in the absence of the accused unless the judgment rendered is other than a conviction.
Moreover on 07/05/2004, Parliament adopted a constitutional amendment abolish state security courts (see Resolution DH(99)555).
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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