Communication concerning the Execution of Ülke v. Turkey Judgment
1. At the 1144th meeting, the Committee of Ministers noted with satisfaction the decision given on 4 June 2012 by the Eskişehir Military Court to lift the arrest warrant against the applicant, Osman Murat Ülke, for desertion.
2. At the meeting, the Committee also invited the Turkish authorities to provide a copy of the decision in question, together with an assessment of its impact on the applicants current situation, in particular as to whether the applicant is still subject to further prosecution or conviction and whether he can exercise his civil rights without hindrance.
3. The Turkish Government have the honor to submit to the Committee of Ministers a copy of the Military Court's decision concerned together with its unofficial English translation.
4. Since the applicant, who refused to perform his military service categorically, was sentenced to imprisonment several times on account that he did not obey the military officials under whose order he was put, the European Court of Human Rights (ECtHR) held that there had been a violation of Article 3 of the European Convention on Human Rights (ECHR).
5. As an individual measure for the execution of the ECtHR judgment in question, it was required that the arrest warrant against the applicant should be lifted or an alternative measure that would eliminate the effects of this warrant should be taken.
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6. As brought to the attention of the Committee at the earlier meeting, the Military Court lifted the arrest warrant against the applicant which had considerable impact on the applicant's situation.
7. The investigation against the applicant, regarding the alleged offence of desertion from the military has still been pending. It is obvious that under the principle of legal security the investigation should continue, unless the registration is amended by the Parliament. However, following the lifting of the arrest warrant and upon the order of the relevant Military Prosecutor’s Office that has been carrying out the investigation, the applicant’s name was deleted from the police and gendarmerie records and the restriction on him was thereby completely removed.
8. As the applicant is still under obligation to perform his military service, the relevant Military Recruitment Office is expecting that the applicant will voluntarily join the military, without resorting to any kind of coercive measure. For this reason, the applicant should not be brought to a military unit to perform his military service, unless he wants..
9. The Military Court, lifting the arrest warrant, stated in its decision that Turkey was a state party to the ECHR and based its decision on Article 90 of the Constitution, which reads "International agreements duly put into effect bear the force of law. In the case of a conflict between international agreements in the area of fundamental rights and freedoms duly put into effect and the domestic laws due to differences in provisions on the same matter, the provisions of international agreements shall prevail.”
10. The Court referred to the evolving case-law of the ECtHR and decided to lift the arrest warrant in order to prevent the applicant’s potential victimhood in the future.
11. The Military Court, while lifting the arrest warrant, did not rule on any alternative judicial control measure in respect of the applicant. Accordingly, restrictions set out under the Code of Criminal Procedure such as not being allowed to go abroad, applying for the particular places at specified times, not being allowed to use the means of transport have not been applicable to the applicant.
12. In this respect, given that no arrest warrant is in force, the Government would like to draw the Committee's attention to the fact that the applicant could fully exercise all of his civic rights without any hindrance. For instance, there is no obstacle for the applicant to get a passport and move freely.
13. The Turkish Government will keep the Committee of Ministers informed of any developments that will take place in the future in terms of fully execution of the judgment in question.
Communication of the Government of the Republic of Turkey concerning the Execution of Ülke v. Turkey Judgment (39437/98). Letter to the Committee of Ministers of Council of Europe, September 6, 2012