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Committee of Ministers Secretariat Du Comite Des Ministres SECRETARIAT GENERAL SECRETARIAT OF THE COMMITTEE OF MINISTERS SECRETARIAT DU COMITE DES MINISTRES Contact: Anna AUSTIN Tel: 03 88 41 22 29 Date: 20/01/2015 DH-DD(2015)88 Documents distributed at the request of a Representative shall be under the sole responsibility of the said Representative, without prejudice to the legal or political position of the Committee of Ministers. Meeting: 1222 meeting (10-12 March 2015) (DH) Item reference: Communication from a NGO (IHOP) (05/01/2015) in the Ataman group of cases against Turkey (Application No. 74552/01) Information made available under Rule 9.2 of the Rules of the Committee of Ministers for the supervision of the execution of judgments and of the terms of friendly settlements. * * * * * * * * * * * Les documents distribués à la demande d’un/e Représentant/e le sont sous la seule responsabilité dudit/de ladite Représentant/e, sans préjuger de la position juridique ou politique du Comité des Ministres. Réunion : 1222 réunion (10-12 mars 2015) (DH) Référence du point : Communication d’une ONG (IHOP) (05/01/2015) dans le groupe d’affaires Ataman contre Turquie (Requête n° 74552/01) (anglais uniquement) Informations mises à disposition en vertu de la Règle 9.2 des Règles du Comité des Ministres pour la surveillance de l’exécution des arrêts et des termes des règlements amiables. DGI 1' • - 5 JAN. 2015 SERVICE DE L'EXECUTION IH DES ARRC:TS nF. LA CEDH h~:r1~;'ri ort.1"' pl.1lltJflllU MEMORANDUM for the Council of Europe - European Court of Hu ma n Rights DGl - Human Rights Service of the Supervision of the Execution of Judgements of the ECHR F 67075 STRASBOURG-CEDEX Ankara, 5 )anuary 2015 SUBJECT: Execution of the two judgments 1. X-Turkey judgment 2. Ataman group cases Human Rights Joint Platform, a network of human rights organisations in Turkey, presents two monitoring reports concerning the execution of the above mentioned judgments of the European Court of Human Rights and requests the Committee of Ministers to consider the recommendations made in these reports. IHOP's recommendations for two judgments are as follows: X. v. Turkey (Application no. 24626/09, 9 October 2012) Recommendation to the Committee of Ministers The judgment, dated 9 October 2012, by the European Court of Hu man Rights in the case of X v. Turkey became final on 27 May 2013. The judgment was given the status of 'standard' supervision. Because of the nature of the judgment and the problems faced by LGBT prisoners in Turkey, we are of the opinion that it w ill be beneficial for the execution of the judgment to be monitored by the Committee of Ministers under an 'enhanced' supervision status. (Please see report annexed) The Action Report submitted by the government of Turkey presents neither a plan nor a will to identify the problems pertinent to the issue. Therefore, we are of the opinion that a recommendation should be made ta the Turkish government calling for the adoption of legal and administrative arrangements to solve the problems of LGBT prisoners and to ensure that the steps taken by the government in the execution of the judgment are not limited to a fo cus on 'ensuring the security of LGBT prisoners'. Ataman Group Cases (Oya Ataman Application No: 74552/ 01, 5 December 2006) Recommendation to the Committee of Ministers "The deteriorating conditions for the enjoyment of the right to assembly in Turkey since the Ataman Group cases should be noted 1 The Execution of the Ataman Group Cases (Application No. and Judgment Date: 74552/01, 5 December 2006) MONITORING REPORT Prepared by: Doç. Dr. Başak Çalı Delegation of the European Union to Turkey IHOP – MONITORING REPORTS OF THE IMPLEMETATION OF THE ECtHR JUDGMENTS, 2014/2 The Execution of the Ataman Group Cases – MONITORING REPORT Prepared by: Başak Çalı (Associate Professor at Koç University) Translated by: Cem Tecimer, Zeynep Elibol, Erinç Argun and Sam Dubberley Capacity Development Association Tunus Caddesi 87/8, Kavaklıdere-Ankara T. + 90 312 468 84 60 F. + 90 312 468 92 53 Ceket Medya www.ceketmedya.com 1st Print: December 2014 The electronic copy of this report and more detailed information are accessible at http:/www.aihmiz.org.tr & http:/www.ihop.org.tr Some rights are reserved. This work is licensed under the Creative Commons Attribution- Non Commerci- al-No Derivs 3.0 Unported license. It can be freely shared (copied and distributed) by accepting these condi- tions and informing the Capacity Development Association in advance. This report is prepared in the context of the project “Enhancing human rights defenders’ capacity in monito- ring the implementation of judgments of the European Court of Human Rights in Turkey”, supported by the EIDHR program of Delegation of the European Union to Turkey and implemented by the Human Rights Joint Platform (IHOP). The content of this report is under the responsibility of the Human Rights Joint Platform and the opinions expressed herein are solely those of the authors and do not necessarily represent the views of the Delegation of the European Union to Turkey. TABLE OF CONTENTS 1. Introduction: Ataman Group Cases ..........................................................................................................5 2. Key findings of the European Court of Human Rights in the Ataman Group Cases ...............6 Finding 1: Intervention in peaceful gatherings is contrary to Article 11 of the ECHR ..............6 Finding 2: Targeting of peaceful protesters in non-peaceful gatherings is contrary to Article 11 and Article 3 of the ECHR ................................................................................7 Finding 3: Disproportionate use of force (by way of tear gas or physical force) to disperse peaceful or non-peaceful gatherings is contrary to Article 11 and Article 3 of the ECHR .....8 Finding 4: Prosecution of peaceful protesters under various domestic laws are contrary to Article 11 of the ECHR ....................................................................................................................................8 Finding 5: Lack of effective investigations into actions of police officers and their superiors in violation of Article 3 is contrary to the procedural positive obligations under Article 3 .........................................................................................................8 2.1 Article 46 Judgments in the cases of Abdullah Yaşa v. Turkey and İzci v. Turkey ..............9 3. Supervision of Ataman Group Judgments by the Committee of Ministers ...............................10 3.1. Individual Measures in the Ataman Group Cases ..........................................................................10 3.2. General Measures in the Ataman Group Cases .............................................................................11 3.3. The Action Plan of Turkey concerning the Ataman Group Cases as of 31st July 2014 ....11 4. The State of the Implementation of General Measures ...................................................................14 4.1 Legislative Measures ...............................................................................................................................14 4.1.1. Amendments to Law No. 2911 by Law No. 6529 post Ataman Group Cases ..................15 4.1.2 The legal framework for the use of force, including tear gas, by law enforcement officers ........................................................................................................................17 4.1.3 The Draft Law on a Police Enforcement Mechanism ................................................................21 4.1.4 The so-called ‘Security Package’ of October 2014 ....................................................................21 3 4.2. Executive Measures ................................................................................................................................21 4.2.1.The Use of Law No. 2911 by the Executive ...................................................................................21 4.2.2. Ensuring ECHR Compliant Behaviour by Law Enforcement Officers ................................23 4.2.3 Ex post facto institutional review of decisions to use tear-gas and effective disciplinary investigations of police officers ..................................................................................................................23 4.3. Judicial Measures ....................................................................................................................................25 4.3.1. Failure to effectively investigate and prosecute law enforcement officers and other state authorities in conjunction with Article 11, 3 and 2 violations ............................................................................................................25 4.3.2 Criminally charging peaceful protesters (the so-called ‘reprisals’) ....................................27 4.3.3. Sentencing of Peaceful Protesters ..................................................................................................29 5. Conclusions and Recommendations ........................................................................................................30 To the Turkish Parliament ..............................................................................................................................30 To the Executive ................................................................................................................................................31 To the Prosecutorial Office ...........................................................................................................................32
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