36391/02, SALDUZ v. TURCJA - Rezolucja Komitetu Ministrów Rady Europy

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Rezolucja Komitetu Ministrów Rady Europy z dnia 7 czerwca 2018 r. 36391/02

UZASADNIENIE

Sentencja

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