Resolution CM/ResDH(2011)278[1]
Execution of the judgment of the European Court of Human Rights
Oral No. 2 against Turkey
(Application No. 18384/04, judgment of 25/11/2008, final on 25/02/2009)
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 judgments 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 unfairness of certain proceedings before a tax court (violation of Article 6§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 judgments;
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;
Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the 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
- 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(2011)278
Information about the measures to comply with the judgment in the case of
Oral (No. 2) against Turkey
The case concerns the unfairness of certain proceedings before a tax court in that an expert report which was crucial to the outcome of the trial was not communicated to the applicant, who was thus denied the possibility of making observations concerning the expert’s conclusions (violation of Article 6§1).
In January 2000, the applicant seised a tax court in order to contest fiscal fines imposed upon him by the municipal authorities of Küçük Cekmece, contending, counter to the opinion of the municipality, that his earlier property tax declarations had been correct. The tribunal called for an expert report upon which its verdict was based but which was not disclosed to the applicant.
The European Court considered that the failure to disclose the expert report, which had a determining effect on the outcome of the proceedings, had placed the applicant in a situation of clear disadvantage as against the tax administration. It also considered that the inclusion of the report in the tax tribunal’s dossier was not a means of remedying the applicant’s situation.
I.Individual measures
The European Court considered that the finding of a violation constituted in itself sufficient just satisfaction in respect of non-pecuniary damage sustained. With regard to pecuniary damage, the Court held that it could not speculate as to the outcome of the proceedings had the violation not occurred.
According to Article 53/1(ı) of the Law on Administrative Procedure, which also applies to the proceedings before tax courts, a request for reopening of domestic proceedings may be made in cases where the European Court found a violation of the Convention.
Consequently, no other individual measure was considered necessary by the Committee of Ministers.
II.General measures
The European Court’s judgment was translated into Turkish, sent out to the high courts and relevant authorities, and published on the official web site of the Turkish Ministry of Justice (). The Turkish authorities considered that the problem revealed by this judgment was an isolated one, and that the publication and dissemination of the Court’s judgment would therefore be sufficient to prevent similar violations in the future. Therefore, no further general measures appear necessary.
Conclusions
The government considers that no individual measure is required apart from the payment of the just satisfaction, that the general 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 2 December 2011 at the 1128th Meeting of the Ministers’ Deputies
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