Resolution ResDH(2004)105
concerning the judgment of the European Court of Human Rights
of 24 July 2003 (Friendly settlement)
in the case of Yusuf Kaya against Turkey
(Adopted by the Committee of Ministers on 22 December 2004
at the 906th 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 as amended by Protocol No. 11 (hereinafter referred to as “the Convention”),
Having regard to the final judgment of the European Court of Human Rights in the Yusuf Kaya case delivered on 24 July 2003 and transmitted the same day to the Committee of Ministers under Article 46 of the Convention;
Recalling that the case originated in an application (No. 28018/95) against Turkey, lodged with the European Commission of Human Rights on 5 July 1995 under former Article 25 of the Convention by Mr Yusuf Kaya, a Turkish national, and that the Court, seised of the case under Article 5, paragraph 2, of Protocol No. 11, declared admissible the complaints first, that the applicant was convicted by a State Security Court which cannot be regarded as independent and impartial due to the presence of a military judge on the bench and secondly that he had suffered a violation of the presumption of innocence and finally that he had not had the assistance of an advocate during his detention in police custody;
Whereas in its judgment of 24 July 2003 the Court, after having taken formal note of a friendly settlement reached by the government of the respondent state and the applicant, and having been satisfied that the settlement was based on respect for human rights as defined in the Convention or its Protocols, decided unanimously to strike the case out of its list and took note of the parties' undertaking not to request a re-hearing of the case before the Grand Chamber;
Whereas under the above-mentioned friendly settlement it was agreed that the Government of Turkey would pay the applicant the total sum of 6 098 euros within three months as from the notification of the judgment and that simple interest at a rate equal to the marginal lending rate of the European Central Bank plus three percentage points shall be payable from the expiry of the above-mentioned three months until settlement;
Recalling that Rule 43, paragraph 3, of the Rules of the Court (former Article 44, paragraph 2) provides that the striking out of a case which has been declared admissible shall be effected by means of a judgment which the President shall forward to the Committee of Ministers once it has become final in order to allow it to supervise, in accordance with Article 46, paragraph 2, of the Convention, the execution of any undertakings which may have been attached to the discontinuance, friendly settlement or solution of the matter;
Having regard to the Rules adopted by the Committee of Ministers concerning the application of Article 46, paragraph 2, of the Convention;
Having satisfied itself that on 21 October 2003, within the time-limit agreed to under the terms of the friendly settlement, the government of the respondent state had paid the applicant the sum provided for in the friendly settlement and recalling that as regards the applicant's complaint declared admissible in this case measures had already been taken to avoid new violations of the same kind, in particular through the amendment of Article 143 of the Turkish Constitution which concerns the composition of the State Security Courts (Law No. 4388, adopted on 18 June 1999), and the entry into force, on 22 June 1999, of Law No. 4390, which provides that the functions of military judges and military prosecutors at State Security Courts ended at this date (see Resolution DH(99)555 in the case of Çiraklar against Turkey);
Declares, after having examined the information supplied by the Government of Turkey, that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case.
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