Interim Resolution ResDH(2005)113 concerning the judgment of the European Court of Human Rights of 19 June 2003 in the case of Hulki Güneş against Turkey

(Adopted by the Committee of Ministers on 30 November 2005
at the 948th meeting of the Ministers’ Deputies)

The Committee of Ministers, having regard to the judgment of the European Court of Human Rights (“the Court”) of 19 June 2003 in the Hulki Güneş v. Turkey case (application no. 28490/95) transmitted on 19 September 2003 to the Committee for supervision of execution in accordance with Article 46 § 2 of the European Convention on Human Rights (“the Convention”);

Recalling that, in that judgment, the Court found violations of the applicants’ right, under the Convention, to a fair trial before the Diyarbakır State Security Court, on account of:

- the lack of independence and impartiality of the tribunal due to the presence of a military judge on the bench of the State Security Court (violation of Article 6 § 1);

- the impossibility for the applicant to examine or to have examined the witnesses who testified against him (violation of Article 6 §§ 1 and 3(d));

Noting that, as a result the unfair proceedings, the applicant was sentenced to death, a sentence which was subsequently commuted to life imprisonment;

Recalling that the Court also found that the applicant had been subjected to inhuman and degrading treatment while in police custody (violation of Article 3);

Stressing the obligation of every state, under Article 46, paragraph 1, of the Convention, to abide by the judgments of the Court, including through the adoption of individual measures putting an end to the violations found and removing as far as possible their effects for the applicant;

Considering that, in addition to the payment of the just satisfaction awarded by the Court, the adoption of individual measures is necessary in view of the specific circumstances of the present case, notably the extent of the violations found, the serious doubts they cast on the outcome of the criminal proceedings at issue and the gravity of the sentence imposed on the applicant;

Regretting that, more than two years after the finding of the violations in this case, no measures have been taken by the Turkish authorities, beyond the payment of just satisfaction, to grant the applicant adequate redress for the violations found;

Considering that the reopening of the impugned domestic proceedings remains the best means of ensuring restitutio in integrum in this case;

Regretting that the Turkish Code of Criminal Procedure does not enable the criminal proceedings to be reopened in the present case, inasmuch as the Code only provides for the reopening of proceedings in respect of European Court judgments which became final before 4 February 2003 or judgments rendered in applications lodged with the Court after 4 February 2003;

Noting with disappointment that the Turkish authorities have so far not responded to the Committee’s repeated calls to correct this lacuna in Turkish law;

Recalling, with regard to the other aspects of the execution of the judgment in this case, that the Turkish authorities have already taken comprehensive general measures in order to prevent new similar violations of the right to a fair trial and are presently implementing a comprehensive set of measures aimed at preventing ill-treatment by members of the security forces (Interim Resolution ResDH(2005)43);

Recalling in particular the recently amended Article 90 of the Constitution enabling direct effect to be given in Turkish law to the requirements of the Convention and case-law of the Court;

CALLS ON the Turkish authorities, without further delay, to abide by their obligation, under Article 46, paragraph 1, of the Convention, to redress the violations found in respect of the applicant through the reopening of the impugned criminal proceedings or other appropriate ad hoc measures;

DECIDES to continue to supervise the execution of the Court’s judgment in this case at each of its “Human Rights” meetings until full compliance is secured.