MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1419/H46-37

2 December 2021

1419th meeting, 30 November – 2 December 2021 (DH) Human rights   H46-37 Gurban group v. Turkey (Application No. 4947/04) Supervision of the execution of the European Court’s judgments Reference document DH-DD(2021)982

 

Application	Case	Judgment of	Final on	Indicator for the classification
4947/04	GURBAN	15/12/2015	15/03/2016	Structural problem
24069/03	ÖCALAN (No. 2)	18/03/2014	13/10/2014
27422/05	KAYTAN	15/09/2015	15/12/2015
33056/16	BOLTAn	12/02/2019	12/05/2019

Case description

This group of cases concerns violations of the prohibition of torture and inhuman or degrading treatment or punishment on account of the applicants’ sentences to aggravated life imprisonment without any prospects of release or any adequate review mechanism of these sentences (Article 3).[1]

The Court found that the legislation governing the execution of aggravated life imprisonment, which was characterised by the absence of a mechanism that would allow their review after a certain minimum term, as well as the absence of the possibility for the release of the life prisoner, was in breach of Article 3. It stressed, however, that this finding cannot be understood as giving the applicants the prospect of imminent release, but merely requires the national authorities to put in place a review mechanism in the light of the standards already set out by the Court.[2]

In the case of Öcalan (No. 2) the Court further found a violation of Article 3 of the Convention in relation to the applicant’s conditions of detention prior to 17 November 2009.

Status of execution

The information provided by the authorities on 1 October 2021 is summarised below (DH-DD(2021)982):

Individual measures:

The just satisfaction awarded for non-pecuniary damage suffered by the applicants as well as costs and expenses was paid within the time-limit.

The applicants continue serving their sentences to aggravated life imprisonment without a review mechanism on penological grounds at their disposal. The authorities are of the view that the individual measures concerning this issue are linked with the general measures.

With respect to the conditions of detention in the case of Öcalan (No. 2), the authorities recalled that the Court found no violation of Article 3 as regards the applicant’s conditions of detention for the period after 17 November 2009.

General measures:

According to the information provided by the authorities on the relevant legal framework, conditional release is possible as a principle for convicts who are sentenced to aggravated life imprisonment, except for those sentenced for certain offences. The authorities indicated that the Constitution gives the power to the President of the Republic to commute or remit the sentences imposed on persons, on grounds of chronical illness, disability or old age. This power has been used for nine convicts since 2015. In addition, the Turkish Grand National Assembly has the power to announce general amnesty.

Rule 9 submissions

Rule 9.1 submission in the case of Gurban (DH-DD(2021)1042)

The representative of the applicant stated that the authorities have not submitted an action plan that could address the individual and general implementation of the judgment. He also indicated that after exhausting all domestic remedies, the applicant lodged an individual application before the Constitutional Court for the execution of the Court’s judgment, which is still pending. It is further stated in the submission that the applicant has been in prison for 25 years and the fact that the Court’s judgment is not being implemented deteriorates his mental health.

Rule 9.2 submissions

The Committee received a joint submission from Association of Lawyers for Freedom (Özgürlük için Hukukçular Derneği), Human Rights Association (İnsan Hakları Derneği), Human Rights Foundation of Turkey (Türkiye İnsan Hakları Vakfı), and the Foundation for Society and Legal Studies (Toplum ve Hukuk Araştırmaları Vakfı))(DH-DD(2021)766; DH-DD(2021)1088).

The NGOs noted that certain provisions in Turkish law foresee for execution of aggravated life imprisonment to continue until the convict’s death. They added that in the cases where conditional release has been granted to convicts sentenced to life imprisonment or aggravated life imprisonment, the initial review took place between thirty to forty years after the convict started serving sentence. The NGOs claimed that 1,453 people were sentenced to aggravated life imprisonment in Turkey until 2014 and hundreds of others were subjected to an execution regime since then without any possibility of de jure or de facto conditional release.

They also refer to several complaints from the representative of the applicant in the Öcalan (No.2) case concerning his current conditions of detention in the Imrali Prison.

In their response (DH-DD(2021)884), the authorities provided information on the overall legal framework in Turkey concerning the conditional release procedure and conditions of detention at the Imrali Prison by making references to European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“CPT”) reports made public in 2010, 2013 and 2016.

In their joint response (DH-DD(2021)1134) to the above Rule 9 submissions, the authorities merely referred to their previous responses and stated that the action plan submitted on 1 October 2021 contained detailed explanations regarding the issues raised in these submissions.

Analysis by the Secretariat

Individual measures:

The individual measures related to the fact that the applicants’ whole life sentences remain irreducible despite the findings of the Court are linked with the adoption of the general measures.

Concerning the conditions of the applicant’s detention in the case of Öcalan (No. 2), the Committee could recall that the Court found no violation of Article 3 for the period after 17 November 2009 due to the improvement of these conditions and also note that a separate application is pending before the European Court concerning his present conditions of detention.[3] It should be recalled furthermore that this issue is being closely followed by the CPT which holds regular visits to the Imrali Prison where the applicant is detained. The Committee could wish to decide in these circumstances that no further individual measures are required concerning the applicant’s conditions of detention, within the framework of this judgment.  

General measures:

According to the current legislation on the enforcement of sentences and security measures, individuals serving sentences of aggravated life imprisonment for crimes against the security of the State (like the applicants in the present cases) are not entitled to apply, at any time, for release on legitimate penological grounds.[4]

Even though under Turkish law, in the event of the chronical illness, disability or old age of a life prisoner, the President of the Republic may order his/her immediate or deferred release, the Court has already stated, including in the present judgments, that release on such humanitarian grounds or following amnesty does not correspond to the concept of “prospect of release” on legitimate penological grounds.[5]

Legislative amendments appear therefore required to resolve the underlying structural problem and thus provide all convicts sentenced to aggravated life imprisonment with the possibility to have their sentences reviewed in accordance with the standards set out by the European Court.[6] It should be noted in this respect that providing a procedural possibility to apply for a review of eligibility for release on parole does not mean that such release should be granted. As the Court underlined[7], it is for the authorities to verify whether the convicts’ continued incarceration is still justified after a minimum term of detention, either because the requirements of punishment and deterrence have not yet been entirely fulfilled or because the continued detention is justified due to the convicts’ dangerousness.

Having regard to the margin of appreciation of the member States in the matters of criminal justice and sentencing, the Court emphasised, in a number of judgments, that it is not its task to prescribe the form (judicial or executive) which that review should take, nor to determine when that review should take place. Nevertheless, it noted that the comparative and international law materials before it showed clear support for the institution of a dedicated mechanism guaranteeing a review no later than twenty-five years after the imposition of a life sentence, with further periodic reviews thereafter.[8] In addition, the Turkish authorities can be encouraged to draw inspiration from the experience of several member States which have recently put in place[9] or are putting in place[10] such mechanisms to comply with judgments finding violations of Article 3 on account of the absence of a review mechanism in their legislations for whole life imprisonment.

So far, more than seven years after the first final judgment in this group, the authorities have not provided pertinent information on any proposal to remedy the violations found in these judgments. The Committee could express concern at this situation and urge the authorities to adopt without further delay the required legislative or other adequate measures to bring the legal framework into compliance with the requirements of the Convention and the European Court’s judgments, including by drawing inspiration on the good examples of review mechanisms of whole life sentences put in place in other member States.

To be able to evaluate the number of persons who are directly concerned by the adoption of general measures in these cases, the Committee may also wish to request information on the number of individuals who are convicted to aggravated life imprisonment without possibility for review of their sentences on penological grounds, including the time they have spent in prison.

Financing assured: YES