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EU v. Turkey judgment: Call for urgent
measures to redress an unfair trial
2.12.2005
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STRASBOURG (AP) -
Europe’s top human rights watchdog urged Turkey
yesterday to abide by the judgment of a European
court and grant a new trial to a Kurd sentenced to
life imprisonment on charges of separatism and
undermining national security. In 2003, the European
Court of Human Rights ruled that Hulki Gunes didn’t
receive a fair trial after being accused of firing
at security forces in the town of Varto in eastern
Turkey, causing the death of one soldier and
wounding two more. The court found the tribunal was
not impartial as a military judge was present.
Full text of the Interim Resolution ResDH(2005)113
Council of Europe
Under the European Convention on Human Rights, the
European Court’s judgments require the adoption by
the respondent states, under the Committee
supervision, of all measures necessary to grant the
applicants appropriate redress and to prevent new
similar violations in future (http://www.coe.int/T/E/Human_Rights/execution/).
COUNCIL OF EUROPE- COMMITTEE OF MINISTERS
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.
www.coe.int
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