Resolution CM/ResDH(2018)219
Execution of the judgments of the European Court of Human Rights
Salduz and 83 other cases against Turkey
(Adopted by the Committee of Ministers on 7 June 2018at the 1318th meeting of the Ministers’ Deputies)
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 final judgments transmitted by the Court to the Committee in these cases (see list in Appendix) and to the violations established;
Recalling that these cases principally concern violations of the right to a fair trial arising from the fact that, pursuant to section 31 of Law No. 3842 which was then in force, the applicants, as persons accused of committing offences falling within the jurisdiction of the State Security Courts, were systematically denied access to a lawyer during questioning at police stations and that the statements they made were subsequently admitted in evidence at trial (violations of Article 6 § 3(c) in conjunction with Article 6 § 1);
Recalling the respondent State’s obligation, under Article 46, paragraph 1, of the Convention, to abide by all final judgments in cases to which it has been a party and that this obligation entails, over and above the payment of any sums awarded by the Court, the adoption by the authorities of the respondent State, where required:
- of individual measures to put an end to violations established and erase their consequences so as to achieve as far as possible restitutio in integrum; and
- of general measures preventing similar violations;
Having invited the government of the respondent State to inform the Committee of the measures taken to comply with the above-mentioned obligation;
Having examined the revised action reports and communication received from the authorities indicating the measures adopted to give effect to the judgments, including the information provided regarding the reopening of the proceedings, where requested by the applicants, and the payment of the just satisfaction awarded by the Court, together with the current situation as regards the relevant legal framework (see documents DH-DD(2017)478, DH-DD(2017)544 and DH-DD(2018)329);
Having also examined the two communications from NGOs submitted under Rule 9 of the Committee’s Rules (see documents DH-DD(2012)292 and DH-DD(2013)1075);
Noting that, in July 2003 by Law No. 4928, the restriction on an accused’s right of access to a lawyer in proceedings before the State Security Court was lifted; and that, in July 2005, a new Code of Criminal Procedure entered into force, granting all detained persons the right of access to a lawyer from the moment they are taken into police custody and making the appointment of a lawyer obligatory in respect of minors or persons accused of an offence punishable by a maximum of at least five years’ imprisonment;
Further noting that, in October 2016, additional amendments were made to the Code of Criminal Procedure, providing that, by a court order, the right of access to a lawyer can be restricted during the first 24 hours of police custody in respect of an exhaustive list of crimes, including crimes relating to national security, terrorism and organised drug trafficking, but that suspects cannot be interrogated while denied access to a lawyer during this period and that there is therefore no possibility of statements made while denied legal assistance being admitted in evidence against them, and that this is the law currently in force;
Recalling further that in some of these cases the Court found other violations, but that general measures in respect of these violations have been or are being examined by the Committee in the context of other groups of cases, namely:
(1) Measures in relation to excessive length of proceedings and introducing an effective remedy in this respect were taken within the framework of the Ormanci and Others group of cases (see CM/ResDH(2014)298);
(2) Measures in relation to the State Security Courts were taken within the framework of the cases of Sertkaya (CM/ResDH(2008)83), Çıraklar (DH(99)555) and the Gençel group (CM/ResDH(2013)256);
(3) Measures relating to the failure to communicate prosecutors’ opinions in proceedings before the Court of Cassation were taken within the framework of the Göç group of cases (see CM/ResDH(2011)307);
(4) Measures envisaged in respect of the right to the presumption of innocence are being examined by the Committee within the context of the Dicle and Sadak case (Application No. 48621/07);
(5) Measures envisaged in respect of the right to examine or have examined witnesses against one are being examined by the Committee within the context of Orhan Çaçan group (No. 26437/04);
(6) Measures aimed at preventing excessive length of pre-trial detention, lack of sufficient reasons to justify it, lack of an effective remedy to challenge its lawfulness and lack of the right to compensation in respect of unlawful pre-trial detention were taken within the framework of the Demirel group of cases (see CM/ResDH(2016)332);
(7) Measures aimed at preventing excessive length of police custody were taken within the framework of the Murat Satık and Others group (see ResDH(2005)75);
(8) Measures relating to the failure promptly to inform individuals about the reasons for their arrests were taken within the framework of the Avcı (Cabat) and Others group (see CM/ResDH(2009)96);
(9) Measures to prevent similar violations of freedom of expression are being examined by the Committee within the context of Incal group of cases (Application No. 22678/93);
Recalling that the applications in these cases referred to arrests which occurred prior to 2003, during the period when section 31 of Law No. 3842 was in force, and that the Committee of Ministers’ decisions under Article 46, paragraph 2, of the Convention are entirely without prejudice to the Court’s consideration of any future cases lodged before it;
Having satisfied itself that all the measures required by Article 46, paragraph 1, have been adopted,
DECLARES that it has exercised its functions under Article 46, paragraph 2, of the Convention in these cases and
DECIDES to close the examination thereof.
Appendix: List of cases
Application No.
Case
Judgment of
Final on
36391/02
SALDUZ
27/11/2008
Grand Chamber
10324/05
İZZET ÖZCAN
28/07/2009
28/10/2009
11/05
GÜRBÜZ AND ÖZÇELİK
02/02/2016
02/02/2016
11022/05
HİKMET YILMAZ
04/06/2013
04/09/2013
11368/04
DAŞ
01/09/2015
01/09/2015
1236/09
YAŞAR AND OTHERS
28/11/2017
28/11/2017
12550/03
ÇİMEN IŞIK
16/07/2009
16/10/2009
12838/05
CAHIT AYDIN
11/01/2011
11/01/2011
12976/05
KARADAĞ
29/06/2010
29/09/2010
13304/03
SAVGIN
02/02/2010
02/05/2010
13885/05
SÜZER
23/04/2013
23/07/2013
13918/03
OĞRAŞ
13/10/2009
13/01/2010
15065/07
ARAS (No. 2)
18/11/2014
18/02/2015
15737/02
ÖNGÜN
23/06/2009
23/09/2009
16500/04
İBRAHIM ÖZTÜRK
17/02/2009
17/05/2009
16943/03
TAŞÇIGIL
03/03/2009
03/06/2009
17252/09
SAPAN
20/09/2011
20/09/2011
17730/07
FIDANCI
17/01/2012
04/06/2012
18532/05
FATMA TUNÇ (No. 2)
13/10/2009
13/01/2010
1915/03
ARZU
15/09/2009
15/12/2009
1942/08
İBRAHİM GÜLER
15/10/2013
17/02/2014
19582/02
ÇIMEN
03/02/2009
03/05/2009
19914/03
GÜLÇER AND ASLIM
16/06/2009
16/09/2009
2039/04
BOZ
09/02/2010
09/05/2010
20406/05
MEHMET ALİ AYHAN
03/11/2009
03/02/2010
20564/10
İRMAK
12/01/2016
12/04/2016
2091/07
HAYRETTIN DEMIR
24/07/2012
24/07/2012
22088/03
GÜROVA
06/10/2009
06/01/2010
22182/10
SEYFETTİN GÜNEŞ
17/11/2015
17/02/2016
22493/07
DAVUT ABO
26/11/2013
26/11/2013
22922/03
HALİL KAYA
22/09/2009
22/12/2009
23501/07
AHMET ERYILMAZ
03/06/2014
03/09/2014
23904/03
GÜLECAN
28/04/2009
28/07/2009
24739/04
AHMET ARSLAN
22/09/2009
22/12/2009
24820/05
FAZLI KAYA
17/09/2013
17/12/2013
24829/03
FİKRET ÇETİN
13/10/2009
13/01/2010
25301/04
ADALMIŞ AND KILIÇ
01/12/2009
01/03/2010
27303/09
ŞAHİN
12/12/2017
12/12/2017
27335/04
NEVRUZ BOZKURT
01/03/2011
01/06/2011
28439/03
HAKAN DUMAN
23/03/2010
23/06/2010
28451/08
ÇARKÇI No .2
14/10/2014
14/01/2015
2910/04
ÇELEBI AND OTHERS
22/09/2009
22/12/2009
29724/08
ŞİRAY
11/02/2014
11/05/2014
3042/05
KONAK
03/09/2013
03/12/2013
31535/04
BAYRAM GÜÇLÜ
18/02/2014
18/05/2014
31721/02
DEMIRKAYA
13/10/2009
13/01/2010
32705/02
ATTI AND TEDIK
20/10/2009
20/01/2010
33102/04
AYHAN IŞIK
30/03/2010
30/06/2010
33735/02
ÜMIT AYDIN
05/01/2010
05/04/2010
35292/05
SAMAN
05/04/2011
05/07/2011
35392/04
BOLUKOÇ AND OTHERS
10/11/2009
10/02/2010
36001/06
GALİP DOĞRU
28/04/2015
28/07/2015
36838/03
GÜLABI ASLAN
16/06/2009
16/09/2009
3790/09
DÜLEK
18/02/2014
18/02/2014
38114/03
MEHMET ZEKİ DOĞAN
06/10/2009
06/01/2010
38907/09
BAYRAM KOÇ
05/09/2017
05/12/2017
38940/02+
ASLAN AND DEMIR
17/02/2009
17/05/2009
43422/02
BİLGİN AND BULGA
16/06/2009
16/09/2009
44767/06
YILMAZ DEMİR
15/10/2013
15/01/2014
45084/04
ÖMER BERBER
26/01/2010
26/04/2010
4661/02
ŞÜKRAN YILDIZ
03/02/2009
03/05/2009
47079/06
GÜNEŞ
28/11/2017
28/11/2017
47368/99
SOYKAN
21/04/2009
21/07/2009
47695/09
GOLUNC
20/09/2011
20/09/2011
4977/04
ÇOBAN (No. 2)
26/01/2010
26/04/2010
50356/08
MEHMET ŞERIF ÖNER
13/09/2011
13/12/2011
5138/04
AMUTGAN
03/02/2009
03/05/2009
5243/03
GÜRSEL ÇELIK
05/05/2009
05/08/2009
5256/02
KARABİL
16/06/2009
16/09/2009
5289/06
HÜSEYİN HABİP TAŞKIN
01/02/2011
01/05/2011
59653/00
ERASLAN AND OTHERS
06/10/2009
06/01/2010
59780/00
YEŞILKAYA
08/12/2009
08/03/2010
6058/02
EK AND ŞIKTAŞ
17/02/2009
17/05/2009
60683/00
KENAN ENGİN
08/12/2009
08/03/2010
6094/03
ELÇIÇEK AND OTHERS
16/07/2009
16/10/2009
6318/02
ZEKİ BAYHAN
28/07/2009
28/10/2009
63315/00
MUSA KARATAŞ
05/01/2010
05/04/2010
69006/01
DITABAN
14/04/2009
14/07/2009
71864/01
TAĞAÇ AND OTHERS
07/07/2009
07/10/2009
7377/03
DAYANAN
13/10/2009
13/01/2010
7638/02
ABA
03/03/2009
03/06/2009
8180/04
BARAN İHSAN (No. 1)
15/09/2009
15/12/2009
8747/02+
GEÇGEL AND ÇELİK
13/10/2009
13/01/2010
9762/03
SAVAŞ
08/12/2009
08/03/2010
Full & Egal Universal Law Academy