Interim Resolution CM/Resdh(2008)69

Interim Resolution CM/ResDH(2008)69
Execution of the judgments of the European Court of Human Rights
Actions of the security forces in Turkey
Progress achieved and outstanding issues
General measures to ensure compliance with the judgments of the
European Court of Human Rights in the cases against Turkey concerning actions of members of the security forces (listed in Appendix II)
(Follow-up to Interim Resolutions DH(99)434, DH(2002)98 and ResDH(2005)43)
(Adopted by the Committee of Ministers
on 18 September 2008,
at the 1035th meeting of the Ministers' Deputies)
General measures to ensure compliance with the judgments of the
European Court of Human Rights in the cases against Turkey concerning actions of members of the security forces (listed in Appendix II)
(Follow-up to Interim Resolutions DH(99)434, DH(2002)98 and ResDH(2005)43)
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 175 judgments and decisions in the cases against Turkey listed in Appendix II, in which the European Court of Human Rights (the “Court”) found that there had been numerous violations of the Convention on account of:
- deaths of the applicants’ next-of-kin as a result of excessive use of force by members of security forces;
- failure to protect the right of life of the applicants’ next-of-kin;
- death and/or disappearance of the applicants’ next-of-kin;
- ill-treatment;
- destruction of property and
- lack of effective domestic remedies into the applicants’ complaints;
Bearing in mind that 69 cases involving similar complaints have been struck off the list by the Court following the conclusion of friendly settlements or other solutions found, in particular on the basis of the government’s undertaking to take rapid remedial measures;
Noting that most of the violations in the cases at issue took place against the background of the fight against terrorism in the 1990s and recalling that each contracting state, in combating terrorism, must act in full respect of its obligations under the Convention, as set out in the Court’s judgments, and developed in the Council of Europe Guidelines on human rights and the fight against terrorism;
Noting further that all these violations resulted from various structural problems, in particular;
- ineffectiveness of procedural safeguards in police custody;
- general attitude and practices of members of security forces, their education and training system, inadequacy of the legal framework governing their activities;
- shortcomings in establishing criminal liability for abuses at the domestic level, and
- shortcomings in ensuring adequate reparation to victims.
Recalling that in response to the violations of the Convention found, Turkey has taken important remedial action aimed at
- improving the procedural safeguards in police custody;
- improving the professional training of members of security forces;
- giving direct effect to the Convention requirements;
- providing reparation to victims;
- establishment of enhanced accountability of security forces;
- training of judges and prosecutors.
Bearing in mind the Committee’s assessment of the progress achieved by Turkey in adopting the necessary execution measures, as indicated in the Committee’s Interim Resolutions DH(99)434 of 9June1999, DH(2002)98 of 10 July 2002 and ResDH (2005)43 of 7 June 2005 and the further measures identified in those texts to ensure that new, similar violations are prevented;
Recalling that, in Interim Resolution ResDH(2005)43, the Committee, in particular:
“Welcomed the adoption of a number of important reforms as well as the ongoing efforts to ensure full compliance with the Convention in these cases;
Expressed satisfaction with the results obtained so far, while encouraging the authorities:
- to consolidate their efforts to improve the procedural safeguards surrounding police custody through the effective implementation of the new Regulations based on the new Code of Criminal Procedure, in the light of the requirements of the Convention and bearing in mind the recommendations of the Committee for the Prevention of Torture (CPT);
- to consolidate their efforts to reorganise the basic, in-service and management training of the police and gendarmerie by making use of the results obtained in the Council of Europe/European Commission Joint Initiative, in particular as regards the mainstreaming of human rights into initial and in-service training;
- to take the necessary measures to ensure that the new status of the Convention and the case-law of the Court flowing from the change of Article 90 of the Constitution is translated into the daily practice of the security forces, in particular in the instructions given to them, and that prosecutors and judges are also encouraged to give effect to this new provision;
- to ensure the prompt and efficient implementation of the new “Law on Compensation of the Losses Resulting from Terrorism and from the Measures Taken against Terrorism”, to reconsider its limited time-frame so that all claims can be processed in an impartial manner, and to ensure that individuals do not have to bear a disproportionate burden as a result of lawful actions of the security forces;
- to take the necessary measures to remove any ambiguity regarding the fact that administrative authorisation is no longer required to prosecute any serious crimes allegedly committed by members of security forces;
- to pursue the training provided for judges and prosecutors in the Academy of Justice, in particular by mainstreaming the training on the Convention and the case-law of the Court into the initial and in-service training of judges and prosecutors within the framework of the Academy;
Urged the Turkish authorities regularly to keep the Committee of Ministers informed of the practical impact of the measures taken, including the provision of statistics regarding number of investigations, acquittals and convictions into alleged abuses.”
Assessment of the Committee of Ministers
Having examined the information provided by the Turkish authorities concerning the measures taken since the adoption of Interim Resolution DH(2005)43 and bearing in mind the measures taken by the Turkish authorities since the adoption of the first two interim resolutions mentioned above (see Appendix I for the information submitted by the Turkish authorities);
A. Improvement of procedural safeguards in police custody
Recalling that in its Interim Resolution ResDH(2005)43 the Committee has welcomed the additional safeguards introduced in Turkish law for persons held in police custody aiming at combating torture and other forms of ill-treatment effectively, notably with regard to;
- the right of all persons to see a lawyer of their own choosing;
- the right to free legal assistance;
- the right to inform a family member or a designated person of their detention;
- the right of apprehended persons to receive information about their rights and charges against them;
- the right of the suspects’ representative, in principle, to have access to the investigation file;
- the right to a medical examination without the presence of members of security forces;
Emphasising in this respect the importance of regular monitoring of custody records and detention premises by public prosecutors in order to ensure that the detention facilities and custody records comply with the required standards;
Noting the findings of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment of Punishment (CPT) on its December 2005 visit confirming that “detention by law enforcement agencies (police and gendarmerie) is currently governed by a legislative and regulatory framework capable of combating effectively torture and other forms of ill-treatment by law enforcement officials”;
Encouraging the Turkish authorities to pursue their efforts in ensuring effective implementation of the Turkish legislation with a special focus on the recommendations of the CPT;
DECIDES to close the examination of this issue as the necessary legislative framework is now in place;
B. Improvement of professional training of members of security forces
Noting that human rights has now become a part of the curriculum in the initial training of members of security forces, in particular of the gendarmerie, as a separate subject and as an integrated aspect of other subjects;
Noting further that the Turkish authorities have assured the Committee that they will continue with their efforts to ensure that members of security forces receive initial and in-service training on human rights with a specific focus on the Convention and the Court’s case-law;
DECIDES to close the examination of this issue;
C. Giving direct effect to the Convention requirements
Noting with interest the amendment introduced in June 2007 in “the Law on the duties and legal powers of the police” which now provides that the police are not entitled to use force unless confronted with resistance and that the use of force should be proportionate, be directed to break the resistance, and be increased gradually;
Noting also the detailed instructions given to the gendarmerie with the aim of ensuring that its members comply with the Convention standards in their daily practice and, in particular, use force no more than strictly necessary;
Stressing in this respect that the Committee continues examination of the measures taken and envisaged by the Turkish authorities aiming at ensuring that members of security forces use proportionate force during public demonstrations within the context of the cases of Güzel Şahin and others (No. 68263/01) and Oya Ataman (No. 74552/01);
Welcoming the Circulars of the Minister of Justice drawing the attention of judges and public prosecutors to the shortcomings identified by the Court in its judgments here at issue, in particular with regard to the effectiveness of investigations, as well as Turkey’s obligations flowing from the Convention;
Recalling the Turkish authorities’ repeated commitments before the Committee that the measures taken shall be applied in compliance with the Convention standards by virtue of Article 90 of the Turkish Constitution giving direct effect to the Convention, as well as their undertaking that the implementation of these measures shall strictly be supervised;
DECIDES to close the examination of this issue;
D. Prompt and efficient implementation of the “Law on Compensation of the Losses Resulting from Terrorism and from the Measures taken against Terrorism”
Recalling that the “Law on Compensation” of 27 July 2004 provides a possibility to obtain, directly from the administration, compensation for pecuniary damages caused to natural and legal persons as a result of terrorist activities and operations carried out in combating terrorism during the period of July 1987 to December 2006 with a possibility of judicial review of decisions taken in this respect;
Noting that, within the context of the execution of the judgment in the case of Doğan and Others (no. 8803/02), the Turkish authorities have informed the Committee of the measures taken concerning the implementation of the Law on Compensation, in particular with respect to the work carried out by the Damage Assessment and Compensation Commissions;
Noting with satisfaction that it appears from a substantial number of sample decisions furnished by the Turkish authorities in the above case that persons who have sustained damage in cases of denial of access to property, damage to their property or death or injury can successfully claim compensation by using the remedy offered by the Compensation Law and that therefore the Committee decided to close its examination of this case at its 1028th meeting (June 2008) (see, CM/ResDH(2008)60);
Noting that the effectiveness of the Compensation Law was confirmed by the Court in its decision of 12January2006 in the case of İçyer (No. 18888/02) where it found that “the provisions of the Compensation Law are capable of providing adequate redress for the Convention grievances of persons who were denied access to their possessions in their places of residence”;
Taking note of the insurances given by the Turkish authorities on the availability of a wide range of remedies for situations falling outside the Compensation Law, in particular with regard to the continuing practice of the administrative courts of ensuring reparation by the state for damages caused as a consequence of actions of security forces;
DECIDES to close the examination of this issue;
E. Establishment of enhanced accountability of members of security forces
Recalling that the precondition for administrative authorisation required for the investigation of accusations of torture and ill-treatment has been lifted following the amendments introduced in January 2003 to Law No. 4778 on the Prosecution of Civil Servants;
Noting that, with respect to the prosecution of serious crimes other than torture and ill-treatment, there are examples of decisions of courts and prosecutors where prosecutions had been initiated against members of security forces without administrative authorisations having been sought;
Noting however that the amended Turkish legislation appears to have lifted the requirement of administrative authorisations only with respect to allegations of torture and ill-treatment but that it continues to exist with respect to other allegations of serious crimes,
Noting also that highest ranking members of security forces enjoy the special procedures of prosecution applicable to judges;
URGES the Turkish authorities to take the necessary legislative measures to remove any ambiguity regarding the fact that the administrative authorisation is no longer required to prosecute not only for torture and ill-treatment but also any other serious crimes and to ensure that members of security forces of all ranks could be prosecuted without an administrative authorisation;
F. Training of judges and prosecutors
Welcoming the ongoing training activities for judges and prosecutors initiated by the Turkish authorities, in particular on the Convention and the Court’s case-law, as well as the training activities carried out within the context of the Academy of Justice in the form of seminars, conferences and study-visits;
Noting with satisfaction that training on the Convention and the Court’s case-law has now become a part of the curriculum in the initial training of judges and prosecutors at the Academy of Justice;
DECIDES to close the examination of this issue;
G. Practical impact of the measures taken
Noting the statistical information provided with regard to the number of investigations, acquittals and convictions of crimes of torture and ill-treatment between 2003 and the first nine months of 2007;
Noting with interest that the statistical information provided can be interpreted as indicating a slight decrease in the number of investigation files opened since 2003 into allegations of torture and ill-treatment;
Regretting however that no information was made available to the Committee with regard to the number of investigations, convictions and acquittals concerning serious offences other than torture and ill-treatment allegedly committed by members of security forces;
Noting the examples provided of indictments lodged with criminal courts and decisions of those courts demonstrating that allegations of abuses by members of security forces are prosecuted and their criminal accountability is established;
STRONGLY ENCOURAGES the Turkish authorities to actively pursue their “zero tolerance” policy aimed at total eradication of torture and other forms of ill-treatment, as well as their efforts to ensure that the domestic authorities carry out effective investigations into alleged abuses by members of security forces;
URGES the Turkish authorities to provide detailed statistical information regarding the number of investigations, acquittals and convictions into alleged abuses with a view to demonstrating the positive impact of the measures taken so far;
Conclusions of the Committee of Ministers
DECIDES to pursue the supervision of the execution of the present judgments until the Committee has satisfied itself that all outstanding general measures have been adopted and their effectiveness in preventing new, similar violations has been established;
DECIDES to resume consideration of these cases, as regards outstanding general measures, at its third DH meeting in 2009.
Appendix I to Interim Resolution CM/ResDH(2008)69
Information provided by the Government of Turkey to the Committee of Ministers on the general measures to comply with the European Court’s judgments
A. Improvement of procedural safeguards in police custody
1. General regulations and instructions
a. Length of detention in police custody: According to the Code of Criminal Procedure (which came into force on 1 June 2005), the length of detention in police custody shall not exceed 24 hours from the moment of arrest (plus, a maximum period of 12 hours during which a suspect is being brought before a judge) (see Article 91 of the Code). In organised crimes or crimes committed collectively, the detention period shall not exceed 48 hours. In such crimes, the total detention period can be extended to 4 days by a decision of a public prosecutor. After the elapse of 4 days, the accused should be heard by a judge, who is authorised to extend the detention period for further 3 days (this period also applies to crimes committed in areas where a state of emergency is declared) (Article 251§5).
b. Right to inform a family member: Anyone who is apprehended or taken into custody or whose custody period is extended shall have the right to inform a family member (Article 95 of the Code of Criminal Procedure).
c. Right of apprehended persons to receive information about their rights and charges against them at the time they are taken into custody: According to “Regulation on Apprehension, Police custody and Interrogation” (which also came into force on 1 June 2005 and hereinafter referred to as “Regulation”), anyone who is apprehended shall be informed of his/her rights, including the right to appoint a lawyer (of his/her own choosing or to be appointed by the Bar Association), as well as the nature of the charges against him/her (Article 6 of the Regulation). A suspect or an accused shall be given the same information (including the information on the right to remain silent) before being questioned by police officers (Article147 of the Code of Criminal Procedure).
d. Right to a lawyer: A suspect or an accused shall have the right to a lawyer before being questioned (in private) and during his/her questioning (Articles 147 and 154 of the Code of Criminal Procedure). The provisions of the new Code provide that no statement obtained by security forces in the absence of a lawyer shall be considered as a basis of a conviction unless the suspect or accused confirms that statement before a judge or a court (Article 148 of the Code of Criminal Procedure). The new Code also prohibits the statements obtained under torture, ill-treatment or any methods such as medication, tiring, deception or use of physical force or duress to be used as evidence.