The Committee of Ministers, under the terms of Article 32
(art. 32) of the Convention for the Protection of Human Rights
and Fundamental Freedoms (hereinafter referred to as "the
Convention"),
Having regard to the report drawn up by the European
Commission of Human Rights in accordance with Article 31
(art. 31) of the Convention relating to the applications lodged
on 3 July 1988 by Mr Nihat Sargin and Mr Nabi Yagci against
Turkey (Applications Nos. 14116/88 and 14117/88);
Whereas on 8 April 1991 the Commission transmitted the said
report to the Committee of Ministers and whereas the period of
three months provided for in Article 32, paragraph 1 (art. 32-1),
of the Convention has elapsed without the case having been
brought before the European Court of Human Rights in pursuance
of Article 48 (art. 48) of the Convention;
Whereas in their applications the applicants complained of
the conditions of their detention between 16 November and
5 December 1987, including treatment contrary to Article 3
(art. 3) of the Convention, of having been deprived of their
freedom unlawfully, in violation of the provisions of Article 5
(art. 5) of the Convention, of infringements of the rights of the
defence guaranteed by Article 6 (art. 6) of the Convention and
of being subjected to prosecution in violation of Articles 9 and
10, taken together with Article 14 (art. 14+9, art. 14+10) of the
Convention;
Whereas the Commission declared the application admissible
on 11 May 1989 and in its report adopted on 17 January 1991
expressed unanimously the opinion that there had been violations
of Articles 3 and 5, paragraphs 1, 3 and 4 (art. 3, art. 5-1,
art. 5-3, art. 5-4), of the Convention;
Whereas, during the examination of the case, the Committee
of Ministers was informed that a friendly settlement had been
reached between the applicants and the Government of Turkey on
15 September 1993, according to which:
"The parties have agreed on the terms set out below
with a view to conforming to the report of the Commission
and to reaching a friendly settlement on the basis of
respect for human rights as defined in the Convention:
1. It has been established that '... the legislative
improvements which have already been put into effect by the
Government and the draft amendments which are either in the
process or have been submitted to the Grand National
Assembly ...', as stated in the letter dated
18 February 1993 (No. 131) of the Ministry of Foreign
Affairs which is a supplement to this protocol, are in
conformity with the requests of the applicants and that
they meet the claims of the applicants to a great extent.
2. With reference to the applications (Nos. 14116/88 and
14117/88), the decision of admissibility dated 11 May 1989
and the report of the Commission dated 17 January 1991, the
Government will pay for 'just satisfaction', the sums of:
a. 1 316 700 000 Turkish pounds (includes all
expenses) to Mr Nihat Sargin,
b. 1 316 700 000 Turkish pounds (includes all
expenses) to Mr Nabi Yagci.
3. The applicants reserve all their rights concerning the
applications they have made other than the ones mentioned
in the text of the present settlement. Subject to the
above-mentioned conditions, the applicants declare that
they have no other claims from the Government.";
Having invited the Government of Turkey to inform it of the
measures taken for the execution of the undertakings attached to
the solution of the case;
Having received from the Government of Turkey, in the course
of the Committee of Ministers' examination of the case,
information as regards the measures taken in consequence of the
friendly settlement, which information appears in the appendix
to this resolution;
Having satisfied itself that the Government of Turkey has
paid to each applicant on 10 December 1993 the sum of
1 316 700 000 Turkish pounds;
Having noted the Government of Turkey's reasoned request
that there be no publication of the report of the Commission in
this case,
Finds, after having taken note of the information supplied
by the Government of Turkey, that the solution reached is based
on respect for human rights as defined in the Convention;
Decides therefore, under Rule 6bis of the Rules adopted by
the Committee of Ministers for the application of Article 32
(art. 32) of the Convention, to discontinue its examination of
the present case and not to authorise the publication of the
report adopted by the Commission in this case.
Appendix to Resolution DH (93) 59
Information provided by the Government of Turkey
during the examination of the case of Sargin and Yagci
by the Committee of Ministers
The Law of 12 April 1991 on Combat against Terrorism and
Attacks on the Security of the State has abrogated Articles 140
and 141 of the Turkish Criminal Code, which were at the basis of
the charges brought against the applicants in the present case.
This law has also defined the crime of terrorism with greater
precision. On 1 December 1992, Law No. 3842 made important
amendments to the Code of Criminal Procedure, the law on State
Security Courts, the law regarding the Combat against Terrorism
and Attacks on the Security of the State, the law on the State
of Emergency and the law on the Powers and Duties of the Police.
The most important elements of these reforms are that:
- the jurisdiction of the State Security Courts has been
subjected to further limitations;
- the period of police custody has been reduced for those
crimes which earlier fell within the Security Courts'
jurisdiction;
- this reduction has also been made applicable in regions
in a state of emergency;
- the interested person has obtained the right to challenge
the police custody before a judge;
- the person concerned has been given the right to have
access to a lawyer from the very beginning of the police
custody;
- efficient safeguards have been introduced in order to
prevent methods of interrogation which might raise
questions under Article 3 (art. 3) of the European
Convention on Human Rights - thus Article 13 of Law
No. 3842, which amends Article 135a of the Code of Criminal
Procedure, states:
"The free declaration of the person heard or of
the accused shall prevail. No impediments to this
shall be imposed by way of maltreatment, torture, the
administration of drugs by force, exhaustion,
deception, physical force or violence, use of certain
devices, or other similar methods, or physically or
mentally demeaning procedures.
No promise of advantage shall be made which is
contrary to the law. Any statements made as a
consequence of any of the forbidden procedures as
described in the preceding paragraphs shall be deemed
not to have the value of evidence even with the
person's consent.";
- Article 13 of Law No. 3842 applies also, in accordance
with Article 31 of the same law, in the proceedings before
the State Security Courts.
Full & Egal Universal Law Academy